



COURT OF APPEAL FOR ONTARIO

CITATION: 267 O'Connor Limited v. Perley-Robertson, Hill
    & McDougall LLP, 2016 ONCA 853

DATE: 20161115

DOCKET: C61522

Strathy C.J.O., Pardu and Brown JJ.A.

BETWEEN

267 OConnor Limited

Applicant (Appellant)

and

Perley-Roberston, Hill & McDougall LLP

Respondent (Respondent)

Paul J. Pape and Andrea M. Bolieiro, for the appellant

Andrew J. F. Lenz, for the respondent

Heard: November 7, 2016

On appeal from the judgment of Justice Ronald M. Laliberté
    of the Superior Court of Justice, dated November 24, 2015.

ENDORSEMENT

[1]

267 OConnor Limited (the applicant or appellant) brought an
    application pursuant to s. 11 of the
Solicitors Act
, R.S.O. 1990, c.
    S. 15 seeking an order directing an Assessment Officer to assess all the accounts
    rendered to it by the respondent solicitors between May 31, 2014 and October
    31, 2014. The accounts had all been paid. Section 11 of the
Solicitors Act
provides
    that [t]he payment of a bill does not preclude the court from referring it for
    assessment if the special circumstances of the case, in the opinion of the
    court, appear to require the assessment.

[2]

The application judge dismissed the application. He held, after citing
    the appropriate authorities, that the applicant had not established, on a
    balance of probabilities, the existence of special circumstances justifying a
    referral for assessment on the following grounds:

1.

The principal of the applicant is a lawyer and a sophisticated client
    who understood the
Solicitors Act.
He was also a businessman
    experienced in handling significant real property transactions.

2.

The degree of communication between the applicant and the respondent
    solicitors was adequate and the accounts were detailed.

3.

The applicant expressed satisfaction with the work done.

4.

The respondent solicitors provided the applicant with the accounts on an
    ongoing basis. The applicant expressed no objection until a dispute arose in
    relation to an account for an unrelated matter.

5.

The applicant indicated that it he had no difficulty in honouring the
    accounts, and paid them voluntarily, without pressure.

6.

The work done by the respondent solicitors was complex, involving a
    valuable piece of commercial real property that sold for $11,400,000.

7.

The application judge found that the cumulative effect of the foregoing
    supported the proposition that the payment of the accounts reflected the
    applicants acceptance of their reasonableness.

[3]

The appellant submits that the application judge
    erred in failing to make an independent assessment of whether the fees charged by
    the respondent solicitors were excessive. The accounts covered work done to
    defeat a motion for a certificate of pending litigation, as well as other work.
    The respondent solicitors sought partial indemnity costs on that motion in the
    sum of $35,221.67 from the opposing party. The appellant argued that, assuming
    these party and party costs represented about 60% of the respondent solicitors
    actual fees, the fees charged by the respondent solicitors should have been
    around $60,000. Alternatively, the appellant said in an email to the respondent
    solicitors that unknown persons he had consulted suggested that the fees should
    have been between $60,000 and $80,000.

[4]

The total of all accounts rendered by the
    respondent solicitors was $135,240.25. The accounts were detailed, and gave
    particulars of the time spent, hourly rate and disbursements. The time claimed
    on the bills to the client was over 220 hours. The time claimed for the motion
    indicated on the partial indemnity costs outline was about 110 hours.

[5]

The appellant did not challenge the hourly rate,
    the time spent or the propriety of the disbursements. In the absence of any
    evidence reasonably leading to an inference that the accounts rendered to the
    appellant were excessive, the application judge did not err in declining to
    reason backwards from the amount of partial indemnity costs for part of the
    work done by the respondent solicitors to a conclusion that the accounts for
    all of the work done were excessive.

[6]

In
Bui v. Alpert
, 2014 ONCA 495, [2014] O.J. No. 3127, at para.
    7, this court concluded that it would defer to the decision of the application
    judge regarding the existence of special circumstances, absent an error in
    principle or a clearly unreasonable result.

[7]

The appellant has not shown that the application judge made an error in
    principle or that the result was unreasonable. The argument on appeal is
    essentially that the application judge ought to have exercised his discretion
    differently.

[8]

We see no basis to intervene. The appeal is dismissed with costs to the respondent
    solicitors in the agreed sum of $13,000, all inclusive.

G.R. Strathy C.J.O.

G. Pardu J.A.

David Brown J.A.


