



COURT OF APPEAL FOR ONTARIO

CITATION:
Herman
    v. Goldman, Sloan, Nash and Haber LLP, 2019 ONCA 250

DATE:

20190401

DOCKET: C65793

van Rensburg, Hourigan and Huscroft JJ.A.

BETWEEN

Philip Herman and Sandra
    Druck

Appellants

and

Goldman Sloan Nash & Haber LLP

Respondent

James McReynolds, for the appellants

Christine Kellowan, for the respondent

Heard: March 25, 2019

On appeal from the
    order of Justice Favreau of the Superior Court of Justice, dated July 19, 2018.

REASONS FOR DECISION

[1]

The appellants were clients of the respondent law firm for a number of
    years. They appeal an order dismissing their application to assess 33 of the
    respondent law firms legal accounts, which were dated November 2, 2010 to July
    29, 2013.

[2]

There is no dispute that the respondent provided legal services to the
    appellants; indeed they had previously paid in full at least $169,000 of the
    firms accounts. In early 2017 the appellants sought to assess the 33 accounts
    on the basis that they were dissatisfied with the services provided and that
    they were overcharged.

[3]

The appellants asserted that, notwithstanding that their application for
    assessment was commenced more than 12 months after the accounts were issued, there
    were special circumstances warranting the assessment because they had only
    received the accounts in 2016, as a package, together with a letter of demand.
    They also argued, as additional special circumstances, that they were unsophisticated,
    that the amount at issue was high, and that they had grown increasingly
    dissatisfied with the services provided by the respondent.

[4]

The application judge rejected the appellants arguments and concluded
    that there were no special circumstances that would justify an assessment of
    the subject accounts. In particular, she did not accept their contention that
    they had not received any of the accounts until 2016. She also noted that there
    was no evidence of the appellants having expressed dissatisfaction with the
    services when they were provided, and that the appellants, who were both
    lawyers and business people, were sophisticated and would have known to raise
    issues with the accounts at the time they were rendered. Accordingly, she
    dismissed the application for assessment of the respondents accounts.

[5]

The appellants make two arguments on appeal.

[6]

First, the appellants say that the application judge erred in rejecting
    their claim that they had not received the solicitors accounts at the time
    they were sent. Although the appellants argue the contrary, this is a finding
    of fact and subject to reversal only if they establish that the finding
    reflects a palpable and overriding error.

[7]

We see no such error. The application judge, at paras. 6 to 8 of her
    reasons, explained why she had reached this conclusion. This was a question of
    credibility she resolved against the appellants, who asserted that they had
    received
no

accounts at all
until the package of accounts was
    sent with a demand in 2016. The application judge rejected the appellants
    assertion that because the accounts in the package contained an incomplete New
    York address, rather than the appellants home address, they must not have
    received them. She accepted that the bills sent in 2016 were
    computer-generated, but that the original bills, which were produced in
    evidence, were primarily addressed to the appellants home address, in some
    cases to a Toronto business address, and more recently to an email address the
    appellants did not dispute was their own. The application judge concluded that
    the appellants blanket assertion they did not receive any of the bills sent to
    their home and email addresses did not have an air of reality. The application
    judge also considered evidence that at least one bill had been partially paid
    by the appellants in 2012, as well as a loan agreement and mortgage agreement
    in 2010 in which they acknowledged their indebtedness for outstanding fees and
    their desire that the firm continue working for them.

[8]

Nor do we agree with the appellants that the application judge based her
    decision on the sheer volume of accounts issued by the respondent. What was
    relevant was that the appellants denied having received
any
of the
    accounts, a position that the application judge found not to be credible in
    view of the fact that a large number of the original bills were addressed to
    their home and email addresses. She stated, at para. 7:

If [the appellants] contention
    was that they had not received one or two bills, their evidence may be more
    credible. But their blanket assertion that they did not receive any of the over
    thirty bills sent to addresses they acknowledge as their home and email
    addresses simply does not have an air of reality.

[9]

We see no error in the application judges rejection of the appellants
    contention that they had never received the accounts at issue, and accordingly
    that they failed to make out the primary special circumstance they relied on in
    seeking to assess the respondents accounts.

[10]

The
    appellants second argument is that the application judge did not properly
    consider all of the special circumstances, and in particular the amount of
    money that was in dispute.  We disagree. The focus of the application was on
    the appellants contention that none of the subject accounts had been received.
    This was decided against the appellants. We are satisfied that the application
    judge considered all of the possible special circumstances that were put to
    her, and that her reasons were responsive to the appellants arguments in the
    application.

[11]

The
    appeal is therefore dismissed. Costs to the respondent in the sum of $5,500,
    inclusive of applicable taxes and disbursements.

K. van Rensburg J.A.

C.W. Hourigan J.A.

Grant Huscroft J.A.


