



COURT OF APPEAL FOR ONTARIO

CITATION: Bennett Law Chambers Professional Corporation v. Zareh, 2013 ONCA 686

DATE: 20131108

DOCKET: M43035

Sharpe J.A. (In Chambers)

BETWEEN

In the
    matter of the
Solicitors Act
and

in the
    matter of section 47 of the

Legal
    Aid Regulation, 106-99

Bennett Law Chambers Professional Corporation

Solicitors (Respondents in Appeal)

and

Akbar Zareh, Kingsway Real Estate Brokerage and
    Maxcom Realty Inc.

Clients (Appellants)

Alexandrina  Valvova, for the appellants

J. Sebastian Winny, for the respondent

Heard: November 5, 2013

Motion for an extension of time to file a Notice of
    Appeal.

ENDORSEMENT

[1]

The moving parties seek an order extending the time to serve a Notice of
    Appeal from an order dismissing their motion to set aside an order for the
    assessment of the respondents bills under the
Solicitors Act
. The
    moving parties sought leave to appeal in the Divisional Court in a timely
    manner but the parties agree that the appeal lies to this court without leave
    as the order is final in nature.

[2]

It is common ground that the following factors are to be considered:

1)

whether the appellant formed an intention to appeal within the relevant
    period;

2)

the length of and explanation for the delay;

3)

any prejudice to the respondent;

4)

the merits of the appeal; and

5)

whether the justice of the case requires it.

[3]

See
Kefeli v. Centennial College of Applied Arts and Technology
(2002),
    23 C.P.C. (5th) 35 (Ont. C.A.);
Kirby v. Hope Place Centres,
[2013]
    ONCA 90, affd 2013 ONCA 459.

[4]

I am satisfied that consideration of the first three factors favours
    granting an extension. The appellants formed an intention to appeal within the
    relevant period and a reasonable explanation for the delay is offered. While
    the appeal would delay the respondent in its effort to collect legal fees,
    there would be no other prejudice.

[5]

With respect to the fourth and fifth factors, the respondent submits
    that the appeal lacks merit, and as RZCD are in a conflict of interest, the
    justice of the case weighs against granting the extension.

[6]

These two issues are intertwined. The legal issue raised is whether the
    respondent lacked authority to seek an assessment of legal fees for work done
    by Mr. Bennett. Mr. Bennett did most of the work for which fees are sought
    while a member of the RZCD Law Firm. That same law firm appears as counsel for
    the appellants and contends that the billings form part of RZCDs assets and
    that the respondents only recourse is against the firm, not the clients. Thus,
    while RZCD represents the appellants who resist payment of the fees, RZCD
    advances its own claim to the fees to defeat the claim of the respondent.

[7]

When RZCD moved on behalf of the appellant clients to set aside the
    notice for assessment, the respondent moved to have RZCD removed as solicitors
    of record on grounds of conflict of interest. RZCD requested an adjournment to
    consider obtaining outside counsel. The motion judge chose to deal with RZCDs
    motion on the merits. The motion judge observed that she found it somewhat
    disturbing to have the clients interests argued by Mr. Callahan, a partner in
    the RZCD law firm, whose invoices may be the subject of the assessment, but
    she refused the adjournment request and deferred any consideration of the
    respondents conflict motion.

[8]

The only relevant evidence as to the respondents authority was an
    Associate Agreement dated June 1, 2002. Although Mr. Bennett subsequently
    became a partner in the firm, no other agreement was produced. Article 5 of the
    agreement provides that in the event of termination, fees earned to the date of
    termination remain payable to the partnership and will be paid to the associate
    upon collection less any debts owing by the associate to the partnership. On
    the other hand, provisions in Article 7 provide that the associate shall
    receive 100% of fees billed, and that the associate assumes all responsibility
    for collection of unpaid accounts while the partnership shall take all
    reasonable steps to facilitate the said collection of unpaid accounts.

[9]

The motion judge concluded that the agreement was ambiguous and applied
    the
contra proferentem
principle against the law firm.

[10]

I
    turn first to the merits of the appeal. The Notice of Appeal is deficient. It
    repeats grounds formulated for the purposes of leave to appeal to the
    Divisional Court that have no application in this court. The remaining grounds
    are purely generic and fail to identify specific alleged errors in the order
    appealed from.

[11]

That
    said, it is my view that the interpretation of the Associate Agreement does
    raise an arguable legal issue. On the other hand, it would appear from the
    Associate Agreement that whether it is for the respondent or RZCD to claim the
    fees from the appellants, the respondent is ultimately entitled to 100% of the
    fees billed.

[12]

I
    turn finally to the justice of the case. My concern is that the appeal
    appears to be presented as if it raised an issue between the respondent and Mr.
    Bennetts former law partners who claim that the fees at issue belong to them. The
    appellants seem to serve as a proxy for RZCD in this dispute. There was no
    affidavit from the clients to support the motion to set aside the assessment
    and no evidence, apart from the Associate Agreement, as to the financial
    arrangements between Mr. Bennett and his former law firm. The position taken by
    RZCD in this matter is, as the motion judge put it, disturbing.

[13]

On
    the other hand, as I have noted, the appellant clients may have an arguable
    ground of appeal.

[14]

In
    these circumstances, I grant the motion for an extension of time to file the Notice
    of Appeal for fifteen days from the date of this endorsement, but add this: it
    is my view that it would greatly assist the proper and orderly presentation of
    this appeal if RZCD were to remove themselves as solicitors of record. That
    would ensure that if the appeal does proceed, any right of the appellant
    clients will not be confounded or confused by the participation of RZCD as
    counsel in a matter in which they appear to have, and to be advancing, their
    own personal interest.

[15]

I
    note that as this appeal falls into the hold-up category in relation to the
    assessment, it should be expedited in the usual way for such appeals.

[16]

In
    my view, this is not a case for costs.


