



COURT OF APPEAL FOR ONTARIO

CITATION: Roy Wise Professional Corporation v. Colaco, 2016
    ONCA 889

DATE: 20161123

DOCKET: C61081

Simmons, Pepall and Huscroft JJ.A.

BETWEEN

Roy Wise
    Professional Corporation

and Roy
    Wise

Plaintiffs (Respondents)

and

Noel Mark Colaco

Defendant (Appellant)

Noel Mark Colaco, in person

Timothy M. Gleason, Benjamin Salsberg and Jonathan R. S.
    Schachter, for the respondents

Heard: November 17, 2016

On appeal from the judgment of Justice Stephen E.
    Firestone of the Superior Court of Justice, dated August 27, 2015, with reasons
    reported at 2015 ONSC 3801.

ENDORSEMENT

[1]

Following the hearing of this appeal, we dismissed the appeal for
    reasons to follow. These are our reasons.

[2]

The appellant appeals from a judgment granting the respondent lawyer and
    the respondent law firm (collectively "the lawyers") judgment on a
    claim for unpaid legal fees and dismissing the appellant's counterclaim for
    solicitor's negligence.

[3]

The lawyers claimed $101,183.82 ($107,729.01
    less a credit of $6,545), being the balance owing for legal fees for services
    rendered between 2002 and 2007.

[4]

The appellant's counterclaim for negligence
    related primarily to two matters. First, an action against
John

Baranyai in relation to which
    the appellant claimed that the lawyers failed to properly account for the
    proceeds of a settlement. Second, an action against
Maroun and Cobra
Hanna (Hanna) in relation to which the appellant claimed that the
    lawyers failed to take proper steps to enforce a payment agreement relating to
    a prior judgment against Hanna and failed to advise the appellant of the
    requirement to make full and frank disclosure when applying for a
Mareva
injunction  leading to the appellant having to accept an
    improvident settlement.

[5]

At trial, the appellant acknowledged that the
    lawyers spent the time and performed the services for which they had rendered
    accounts. However, he disputed whether all the services performed were
    necessary to fulfill the terms of the retainer or of benefit to him and
    maintained his position that the lawyers had been negligent.

[6]

Concerning the main action, the trial judge
    reduced the lawyers' claim for legal fees by $10,000, holding that some of the
    time spent was excessive. As mentioned above, a credit of $6,545.19 was also
    applied on account of fees charged at a higher hourly rate without the
    appellant's knowledge. However, the trial judge made numerous findings of fact
    and credibility against the appellant and in favour of the lawyers, which led
    him to conclude that the services provided by the lawyers were both necessary
    and of benefit to the appellant.

[7]

For example, in relation to the main action, the
    trial judge found that:

·

the lawyers had at all times acted in accordance
    with the appellant's instructions and kept him informed of the work being done
    and the fees being incurred;

·

the lawyers had specific instructions to take no
    steps in a proceeding against the appellant's former partner Malik;

·

the lawyers took steps in the Baranyai matter,
    including conducting discoveries, that enabled the appellant to settle the
    matter; and

·

the steps taken in the Hanna matter, including
    initiating appropriate proceedings to enforce the payment agreement based on
    the information the appellant provided, obtaining the
Mareva
injunction and taking appropriate steps to ascertain the amount
    outstanding on the payment agreement were of benefit to the appellant.

[8]

The trial judge therefore allowed the balance of
    the lawyers' claim in the amount of $90,454.81 plus interest.

[9]

Concerning the appellant's counterclaim for
    solicitors negligence, the trial judge found that the lawyers had properly
    accounted for the disputed proceeds of the Baranyai settlement. He rejected
    aspects of the appellant's evidence, including the appellants claim that he
    advised the personal respondent of an oral amendment to the payment agreement
    and concluded that the lawyers had exercised appropriate judgment with respect
    to the payment agreement based on the information the appellant had provided.

[10]

In addition, the trial judge found that the
    appellant settled the action underlying the
Mareva
injunction application  the Hanna action  for reasons unrelated
    to the lawyers. In particular, the evidence of the appellants former partner, Malik,
    had undermined his claim. Furthermore, the trial judge made a specific finding
    that the personal respondent had advised the appellant that "he must be
    truthful and complete" in his evidence on an
ex parte
motion. Although the trial judge acknowledged the expertise of the
    appellant's expert on the issue of solicitors negligence, he concluded that
    the expert's report was based on incorrect assumptions. In his factum filed on
    the appeal, the appellant submitted that the trial judge committed several
    errors. In essence, however, his submissions amounted to reiterating his
    arguments made at trial and asserting that the trial judge erred in failing to
    accept them. In oral argument on appeal, the appellant elaborated on those
    arguments, primarily in relation to the Hanna matter, and also attempted to raise
    new arguments.

[11]

Based on our review of the record, the trial
    judge's findings of fact support his conclusions and are fully supported by the
    evidence led at trial. Further, we see no error in principle. For these
    reasons, we dismissed the appeal.

[12]

The trial judge awarded costs to the lawyers in the
    main action of $86,000 and $80,000 in the counterclaim. The appellant sought
    leave to appeal costs but made no submissions concerning that issue. Leave to
    appeal costs is denied.

[13]

Costs of the appeal are to the respondents on a partial
    indemnity scale fixed in the amount of $5,000 in relation to the appeal of the
    main action and $10,000 in relation to the dismissal of the counterclaim, both
    sums inclusive of applicable taxes and disbursements.

Janet Simmons J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.


