





CITATION: Angela Assuras Professional
          Corporation v. Advocates LLP, 2011ONCA 84






DATE: 20110201



DOCKET: C51543



COURT OF APPEAL FOR ONTARIO



Goudge, Armstrong and Epstein JJ.A.



BETWEEN



Angela Assuras Professional Corporation



Appellant



and



Advocates LLP



Respondent



Angela Assuras and K. Peacocke, for the appellant



Tom J. Corbett, for the respondent



Heard: January 25, 2011



On appeal from the order of Justice Lynne Leitch of the
          Superior Court of Justice, dated December 18, 2009.



By The Court:



[1]

This is an appeal from the dismissal by Leitch J. of the appellants
    appeal from the assessment of the respondents solicitor/client bills to the
    appellant. It arises out of the retaining of the respondent by the appellant
    (who is herself a lawyer) to assist her at a trial. It is a sorry story of
    neither ensuring a smooth working relationship. The question for this court is
    whether there is any basis to interfere with the decision appealed from.

[2]

The appellant argues that neither on assessment nor on appeal was there
    a proper appreciation of the subordinate role to be played by the respondent
    nor of the fact that it was to take place within a context of cost constraint.

[3]

We disagree. As Leitch J. recognized, the assessment officer was fully
    aware of the work done by the respondent, and found that, whatever the
    appellants view of the need for cost constraint, all of this work was done at
    the behest of the appellant. Moreover the assessment officer made his
    assessment of the value of that work based on all the relevant factors required
    by the jurisprudence. This argument therefore fails.

[4]

Then the appellant argues that the decision appealed from is
    inconsistent with the conclusion of the trial judge, in his reasons for costs,
    that certain amounts charged by the respondent were excessive.

[5]

This fails to recognize that the trial judge was conducting an
    assessment of party and party costs. They arise in a different circumstance, in
    which the paying party has no power to direct or curtail what the solicitor does.
    Here the respondent was the appellants lawyer. A large part of the difficulty arose
    because the appellant did not play her part in sufficiently directing or
    limiting her lawyers activities. Her evidence that she did so was rejected.

[6]

The appellant also argues that too little attention was paid below to
    the fact that the respondents initial estimate of costs was some $50,000 and
    yet the accounts ultimately exceeded $150,000.

[7]

Again we disagree. The assessment officer was well aware of the initial
    estimate and of what transpired following. The appellant was told from time to
    time by the respondent of the cost of the work he was doing and that it was
    growing significantly beyond the original estimate. Yet she had him continue
    his work. Being a lawyer herself, she knew what was coming, and having received
    his previous bills, would have had some idea of what that would cost her. It is
    true that, for his part, the respondent should have provided her early on with
    a revised assessment of his ultimate costs. Clients should not be left without
    this information. However, in the circumstances of this case that failure
    cannot be said to have resulted in any real surprise to the appellant.

[8]

That leaves the question of whether, viewed overall, the accounts were
    unreasonable. This is an important element of an assessment that must go beyond
    a simple calculation depending on hours and rates. It requires a broad view of
    what was reasonably required of the lawyer given what was at stake. Here the
    assessment officer made such an assessment and found the accounts reasonable.
    Leitch J. found that this conclusion does not reflect an error in principle.
    There is no basis for this court to interfere with that conclusion.

[9]

The appeal is dismissed.

[10]

Costs of the appeal to the respondent fixed at $5,000 inclusive of
    disbursements and applicable taxes.

RELEASED:  FEB 01 2011 (S.T.G.)

S. T. Goudge
    J.A.

Robert P. Armstrong J.A.

G. J. Epstein
    J.A.


