



COURT OF APPEAL FOR ONTARIO

CITATION: Speciale Law Professional Corporation v. Shrader
    Canada Limited, 2015 ONCA 856

DATE: 20151207

DOCKET: C60537

Laskin, Pardu and Miller JJ.A.

BETWEEN

Speciale Law Professional Corporation and Anthony
    M. Speciale

Solicitors (Appellants)

and

Shrader Canada Limited

Client (Respondent)

John Gray, for the appellants

Rosemary Fisher, for the respondents

Heard: November 24, 2015

On appeal from the order of Justice Turnbull of the Superior
    Court of Justice, dated May 27 2015.

By
    the Court:

A.

Background

[1]

This appeal arises out of assessment proceedings taken by the client,
    Shrader Canada Limited, against its lawyer Anthony Speciale and his
    professional corporation Speciale Law Professional Corporation (SLPC).

[2]

From 1979 to 2013 Speciale or SLPC acted as counsel to Shrader and
    rendered accounts to it. From 2009 to 2013 Speciale was also the president and
    Chief Executive Officer of Shrader. Fifty-one accounts are in issue in these
    proceedings. All accounts are on the letterhead of SLPC, and signed by
    Speciale. All accounts have been paid.

[3]

In July 2013 Shrader obtained on requisition a Registrars order and
    appointment to assess the Solicitors accounts. The order was obtained under s.
    3 of the
Solicitors Act
, R.S.O. 1990 c. S-15, without notice to
    Speciale or SLPC.

[4]

In October 2013, Speciales counsel told Shrader he intended to bring a
    motion to challenge and set aside the order for the assessment. That motion was
    not brought until late May 2015. In the meantime, in January 2014, Speciale
    went to a mediation in the assessment proceedings, and when the mediation did
    not settle the matter, in September 2014 attended the Assessment Scheduling
    Court.

[5]

The assessment was scheduled to begin on June 1, 2015 and be continued
    in July. On May 26, Speciale brought an urgent motion to adjourn or stay the
    assessment and to quash the Registrars order for the assessment. Turnbull J.
    dismissed the motion. Speciale and SLPC appeal from his order.

[6]

On its face, Turnbull J.s order is interlocutory. But, as his reasons
    show, he decided issues that could have deprived Speciale and SLPC of
    substantive defences, we have treated the order as final for the purpose of
    appeal.

[7]

The assessment has now taken place. Thus the appeal from Turnbull J.s
    refusal to adjourn or stay the assessment proceedings is moot. But whether the
    Registrars order for assessment should be quashed remains a live issue, as
    Speciale and SLPC have opposed confirmation of the assessment report.

B.

Discussion

[8]

In dismissing their motion, the appellants Speciale and SLPC submit that
    Turnbull J. made the following five errors.

1.

He erred by failing to quash the assessment proceedings against Speciale
    personally as none of the accounts were rendered by him.

2.

He erred by failing to hold that 43 of the 51 accounts were for
    management and administration services, and therefore the assessment officer
    had no jurisdiction to assess these accounts.

3.

He erred by failing to hold that the retainer was in dispute, and for
    that reason the order for assessment must be set aside.

4.

He erred by failing to find special circumstances sufficient to justify
    setting aside the order for assessment.

5.

He erred by failing to find that the requisition for assessment was not
    timely.

[9]

We will address each of these alleged errors.

(1)

Speciale and SLPC

[10]

The
    appellants submit the assessment should be quashed against Speciale personally
    as he did not render any of the 51 accounts in question. Turnbull J. did not
    explicitly address this issue, but we decline to give effect to the appellants
    submission.

[11]

Admittedly,
    each of the accounts was on the letterhead of SLPC. But Speciale signed each of
    the accounts. And, importantly, the appellants led no evidence to show that
    SLPC included other lawyers or was anything other than the professional
    corporation of Speciale alone. On the record before Turnbull J., to give effect
    to the appellants submission would be unseemly and unjustified.

(2)

Management accounts and legal accounts

[12]

As
    we have said, the appellants claim that 43 of the 51 accounts were for
    management or administrative services and ought not the have been assessed
    under the
Solicitors Act
.

[13]

The
    appellants contend that the Re line on each account distinguishes accounts for
    management services from accounts for legal services. For example, they say all
    accounts with the Re line Shrader Canada Limited are accounts for management
    services, while an account with the Re line referring to a litigious matter is
    an account for legal services. They also point to internal accounting documents
    that appear to distinguish the two types of accounts.

[14]

Turnbull
    J. considered this issue, reviewed the accounts and concluded that they were
    all legal accounts. At para. 20 of his reasons he said:

I have had the opportunity to review the accounts which has
    been submitted. They are found as exhibit H to Mr. Speciales affidavit sworn
    May 24, 2015. The accounts attached thereto are all rendered on the letterhead
    of Speciale Law Professional Corporation. The preamble specifies in each
    account, that the account is for interim fees for services rendered for the
    period covered by the bill. Each account is broken down into lawyer time and
    docketing time for a law clerk. The account is signed by Anthony M. Speciale,
    Barrister & Solicitor. They are clearly legal accounts rendered to Shrader
    Canada. Counsel for the responding party Shrader has referred me to the Law of
    Costs, Second Editions Volume 2 by Mark M. Orkin, particularly to page 373,
    paragraph 316 dealing with nonprofessional services. There the learned author
    wrote:

The fact that the services in question might equally
    well have been rendered by a lay agent does not, however, eliminate the need
    for compliance with requirements of the Solicitors Act if the employment is so
    connected with the professional character of the solicitor as to afford the
    presumption that it formed the ground of employment by the client.

[15]

We
    agree with Turnbull J.s conclusion and his reasons.

(3)

The Retainer

[16]

If
    the retainer is in dispute, a client may not obtain an order on requisition
    under s. 3 of the
Solicitors Act
. The appellants submit that their
    retainer was in dispute because Shrader never executed a retainer agreement,
    and Speciales rates were never approved by the Shrader board.

[17]

We
    do not agree with this submission. Although Shrader did not sign a written
    retainer agreement, the retainer itself, which was in place for many years, was
    never in dispute. And that Speciales rates were never approved was simply a
    matter that went to the amount of his fees, and was properly within the
    jurisdiction of the assessment officer to determine.

[18]

Turnbull
    J. addressed this issue at paras. 23-24 of his reasons:

Mr. Yellin, on behalf of his client, Ms. Malcolm, stated that
    there is no denying the existence of the retainer. The comments made by his
    client and the assessment involved in this matter is an attack on the quantum
    of the bills and work done. The retainer is not in dispute.

Hence, on that basis I am satisfied that the retainer of this
    solicitor is not disputed within the meaning of Section 3 of the Act. As Mr.
    Yellin indicated, this is not a case where a lawyer acted without instructions.

We agree.

(4)

Special circumstances

[19]

A
    client may also not obtain an order on requisition if special circumstances
    exist. Special circumstances are any circumstances of an exceptional nature
    that a court ought to consider before an order for assessment is made. See
Davies,
    Ward & Beck v. Union Industries, Inc.
, [2000] O.J. No. 1769 at para.
    22.

[20]

Here,
    the appellants submit two circumstances are special: most of the accounts
    were for management services, and all of the accounts have been paid. Turnbull
    J. rejected this submission and so do we.

[21]

We
    have already concluded that all 51 accounts were legal accounts, properly
    subject to assessment. The payment of accounts is a factor to be considered in
    deciding whether special circumstances exist, but it is not a determinative
    factor. As Labrosse J.A. said in the
Davies, Ward & Beck
case at
    para. 21: The totality of the circumstances must be considered. In this case,
    the totality of circumstances includes the appellants participation in the
    assessment proceedings, which led Turnbull J. to conclude that no special
    circumstances exist. We agree with him.

(5)

Timeliness of the Requisition

[22]

Under
    s. 3(b) of the
Solicitors Act
, a client may obtain an order on
    requisition for the assessment of a bill already delivered, within one month of
    its delivery. Under s. 4 of the
Solicitors Act
, no order on
    requisition may be obtained after 12 months from the time the bill was
    delivered unless special circumstances exist. The appellants submit that
    Shrader has not met either of these time requirements. We do not accept this
    submission.

[23]

All
    51 bills were delivered. Their delivery is not disputed. The last account was
    dated May 15, 2013. Thus the 30 day period under s. 3(b) of the Act expired on
    June 15, 2013. The order was not obtained until July 31, 2015.

[24]

All
    the accounts are stated to be interim accounts, and the appellants accept that
    when a solicitor delivers a series of interim accounts, the 30-day period under
    s. 3(b) does not begin to run until the last account is delivered. See
Farlinger
    v. Maurice Neirinck
, [2008] O.J. No. 88. The appellants contend, however,
    that the order on requisition was still out of time by a month and a half.
    Turnbull J. rejected this contention for either of two reasons:

I find in the circumstances, that though there may have been a
    technical irregularity with respect to the issuance of the order, Mr. Speciale
    has attorned to the jurisdiction of the assessment order. The test for whether
    the steps taken by a party in a proceeding amount to attornment was recently
    considered by the Court of Appeal in
Wolfe v. Pickar
, 2011 ONCA 347 at
    para. 44:

 when a party to an action appears in court and goes
    beyond challenging the jurisdiction of the court based on jurisdiction
simpliciter
and
forum non conveniens
, the party will be regarded as appearing
    voluntarily, thus giving the court consent-based jurisdiction.

[25]

And:

If I am wrong in this respect, this court has inherent
    jurisdiction remedy any perceived defect in the issuance of the original order
    for assessment and I would have done so
nunc pro tunc
and ordered that
    the assessment proceed as scheduled on June 1, 2015.

[26]

We
    are not persuaded that his reasons reflect any error warranting our
    intervention.

[27]

Some
    of the accounts in question were delivered over a year before Shrader obtained
    the order for assessment. Turnbull J. found that because all the accounts were
    stated to be interim accounts, this very fact amounted to special
    circumstances, that met the requirement in s. 4 of the Act. We agree.

[28]

In
    effect, as Himel J. said in
Farlinger
: The overlapping and interrelationship
    of accounts constituted special circumstances. And, the client could not be
    expected to have objected to and taken out orders of assessment after each
    account was rendered. Also, as Turnbull J. noted, Speciale was the president
    and Chief Executive Officer of Shrader for part of the time when his accounts
    were delivered and paid. Only when Shrader obtained outside legal advice did it
    decide to assess the accounts.

C.

Conclusion

[29]

For
    these brief reasons we conclude that Turnbull J. did not err in refusing to
    quash the order for assessment. The appeal is therefore dismissed with costs
    fixed at $15,000 inclusive of disbursements and applicable taxes.

Released: December 7, 2015 (G.P.)

John Laskin J.A.

G. Pardu
    J.A.

B.W. Miller
    J.A.


