



COURT OF APPEAL FOR ONTARIO

CITATION: Steen v. Gibson, 2016 ONCA 285

DATE: 20160420

DOCKET: C60947

Sharpe, LaForme and van Rensburg JJ.A.

BETWEEN

Robert
    Steen and Robert Steen as Executor

of the Estate
    of Gwendolin Cuttance Steen

Applicant/Client (Respondent)

and

D. Kenneth Gibson and Gibson & MacLaren LLP

Respondents/Solicitors (Appellants)

John Parr Telfer, for the appellants

Miriam Vale Peters, for the respondent

Heard and released orally: April 18, 2016

On appeal from the order of Justice Charles T. Hackland
    of the Superior Court of Justice, dated August 18, 2015.

ENDORSEMENT

[1]

The appellant solicitors raise three grounds of appeal from an
    assessment ordering them to repay $73,000 and costs to the respondent, their
    former client.

(1)

Expert report

[2]

The appellants submit that the trial judge erred by considering and
    relying on an expert report which he ruled to be inadmissible. We do not accept
    that submission. The central issue on this assessment of the solicitors
    accounts was whether the appellants had acted with skill and competence. As the
    judicial officer conducting the assessment, the trial judge was entitled to
    make his own independent evaluation of the skill and competence demonstrated by
    the solicitors. We do not agree that in making that evaluation, he made
    improper use of the expert report.

[3]

In oral argument it became clear that the appellants real concern is
    the contention that the trial judge erred in law in concluding that a passing
    of accounts, and not an action was the appropriate procedure. As the trial
    judge only reduced the appellants account for the fees charged for the Rule 45
    motion and did not reduce the fees for the action proper, this argument has no
    bearing on the outcome of this appeal.

(2)

Delay

[4]

The appellants submit that the trial judge erred by failing to dismiss
    the assessment on the grounds of delay pursuant to Rule 48.15(6)2. We see no
    merit in that submission. Rule 48.15(6)2, now repealed, applied to actions. We
    do not agree with the contention that this assessment was in pith and
    substance a negligence action. The matter was a reference pursuant to the
Solicitors
    Act
, not an action. Moreover, that issue was determined by Justice
    Beaudoins August 2012 endorsement from which no appeal had been taken.

(3)

Reference to Mediation

[5]

While the trial judge did refer to the mediation, he did not violate the
    confidentiality provisions of Rule 24.1.14. The mediation was one step in the
    overall conduct of the disputed proceedings and, as between the appellants and
    the respondent, their client, there was no violation of the confidentiality
    that protects settlement discussions between the parties. Moreover, we agree
    with the respondent that any reference to the mediation had no material effect
    on the substance of the trial judges decision.

[6]

The respondent cross-appeals raising two grounds.

(1)

Further reduction of the appellants accounts

[7]

We see no basis to interfere with the trial judges decision to limit
    the reduction in the appellants accounts to the fees charged for the Rule 45
    motion. In our view, it was open to the trial judge to conclude that there was
    a live issue, to be resolved in the action, as to whether the payments to the
    brothers were valid
inter vivos
gifts or a resulting trust with tax consequences.
    The trial judge found as a fact that there was value to the respondent in
    bringing the action and as a result he refused to reduce the account for
    services rendered for the action. Moreover, as the trial judge noted, the
    respondent was a challenging client, distrustful of his brothers and reluctant
    to give any ground.

(2)

Interest

[8]

Interest is a discretionary matter pursuant to s.33(4) of the
Solicitors
    Act
. We see no error of law or principle on the part of the trial judge in
    ordering interest at the rate prescribed by the
Courts of Justice Act
rather than the rate specified in the appellants invoices and from a date one
    year prior to the hearing. The assessment was commenced in 2009 and not heard
    until six years later. The trial judge was entitled to consider the fact that
    the respondent contributed to the delay in fixing the date for interest.

[9]

Accordingly, both the appeal and the cross-appeal are dismissed. As
    there has been divided success, there will be no order as to costs.

Robert J. Sharpe
    J.A.

H.S.
    LaForme J.A.

K. van Rensburg
    J.A.


