



COURT OF APPEAL FOR ONTARIO

CITATION: Adler v. Thomson, Rogers, 2019
    ONCA 810

DATE: 20191009

DOCKET: C66677

Sharpe, Hourigan and Jamal JJ.A.

BETWEEN

Kerry Adler

Applicant

(Appellant)

and

Thomson, Rogers

Respondent

(Respondent)

Karen Zvylony, for the appellant

Robert Schipper, for the respondent

Heard: October 4, 2019

On
    appeal from the judgment of Justice Peter Bawden of the Superior Court of
    Justice, dated February 6, 2019.

REASONS FOR DECISION

[1]

Mr. Adler brought an application for an
    assessment of 30 accounts he received from his counsel, Thomson, Rogers, over
    the course of their representation of him in a family law proceeding. The total
    amount billed was in excess of $600,000 during a period of approximately two
    and a half years.

[2]

Of these accounts, 26 were paid in full by Mr.
    Adler. Pursuant to s.11 of the
Solicitors Act
, R.S.O. 1990, c.S.15,
    where accounts are paid an assessment may only be ordered if the client
    establishes the existence of special circumstances. The four latest accounts
    were unpaid and were found by the application judge to have been challenged
    within 12 months. An order for the assessment of these accounts falls under the
    courts inherent jurisdiction and does not require the establishment of special
    circumstances.

[3]

The application judge held that Mr. Alder failed
    to establish that special circumstances existed warranting the assessment of
    the paid accounts. The application judge also declined to exercise his inherent
    jurisdiction to order an assessment of the unpaid accounts.

[4]

On appeal, Mr. Adler submits that the
    application judge erred in his approach because he looked at the issue of
    special circumstances solely from the firms perspective and found that the
    overriding factor was how Mr. Adler conducted himself during the litigation. In
    addition, he argues that the application judge ignored evidence that he had not
    accepted the bills as reasonable and submits that the application judge erred
    in finding that he deliberately orchestrated the breakdown of the
    solicitor-client relationship.

[5]

We do not give effect to these submissions.

[6]

We start by noting that a high degree of
    deference is owed to a judges factual findings and exercise of discretion in
    determining whether an assessment should be ordered under s. 11:
Echo
    Energy Canada Inc. v. Lenczner Slaght
, 2010 ONCA 709, 104 O.R. (3d) 93, at
    para. 29, leave to appeal refused, [2010] S.C.C.A. No. 484.

[7]

There is nothing in the application judges
    reasons to suggest that his analysis was undertaken only from the firms
    perspective. To the contrary, he conducted an exhaustive review of the record
    as it related to the parties conduct in the family law proceedings and their
    private relationship. His factual findings were well rooted in the evidence,
    including his finding that Mr. Adler sabotaged his relationship with the firm
    in order to orchestrate an adjournment of the trial. Contrary to Mr. Adlers
    argument, the analysis of the breakdown in the solicitor-client relationship
    was essential because it informed whether the breakdown was motivated by
    genuine concern about the firms service or Mr. Adlers desire to adjourn the
    trial.

[8]

The application judge also properly articulated
    and applied the test for special circumstances. In particular, he considered
    Mr. Adlers sophistication as a litigant who had already assessed the account
    of an earlier solicitor and his willingness to pay the fees provided for in the
    written retainer agreement. In addition, he considered the fact that there was
    no evidence that Mr. Adler was dissatisfied with the accounts until near the
    end of the retainer, when Mr. Adler began to act uncooperatively. The
    application judge concluded that the only factor favouring an assessment was
    the fact that the payments were involuntary. We see no basis for appellate
    interference with the application judges analysis or his conclusion.

[9]

As for the four unpaid accounts falling under
    the courts inherent jurisdiction, the application judge noted that there were
    no circumstances, special or otherwise, warranting an assessment. Again, with
    respect to these accounts, we are not satisfied that the application judge made
    any factual or legal error, or that he improperly exercised his inherent
    discretion.

[10]

The appeal is dismissed. Mr. Adler shall pay the
    costs of the appeal to Thomson, Rogers in the agreed upon, all-inclusive amount
    of $15,000.

Robert J. Sharpe J.A.

C. W. Hourigan J.A.

M. Jamal J.A.


