



COURT OF APPEAL FOR ONTARIO

CITATION: Bui v. Alpert, 2014 ONCA 495

DATE:  20140626

DOCKET: C58131

Hoy A.C.J.O., Cronk and Pepall JJ.A.

BETWEEN

Tich Quang Bui

Applicant (Appellant)

and

Howard J. Alpert

Respondent (Respondent)

Nicholas Cartel and Singa Bui, for the appellant

Michael A. Katzman, for the respondent

Heard:  June 13, 2014

On appeal from the judgment of Justice Victoria R. Chiappetta
    of the Superior Court of Justice, dated December 5, 2013.

ENDORSEMENT

[1]

The appellant, Tich Quang Bui, appeals the December 5, 2013 judgment of
    the application judge, dismissing the appellants application for an assessment
    of the respondent solicitors bills pursuant to ss. 4(1) and 11 of the
Solicitors
    Act
, R.S.O. 1990, c. S. 15.  Before the application judge, the parties
    agreed that the issue before the court was whether special circumstances
    existed within the meaning of those two statutory provisions.

[2]

Briefly, the respondent rendered 12 bills to the appellant over the
    four-year period that he provided legal services to the appellant in relation
    to a tax matter. The appellant paid all 12 bills. The last bill was rendered on
    April 19, 2012. On May 8, 2012, the respondent gave notice of his intention to
    remove himself as the appellants counsel of record, citing the appellants
    failure to pay the April 19, 2012 account and to provide documents to the
    respondent. On May 11, 2012, the appellant appointed new counsel, who
    negotiated a 50% reduction to the April 19 account. On May 24, 2012, the
    appellant paid the April 19 account, as reduced, and the respondent
    subsequently transferred the file to the appellants new counsel. On December
    12, 2012, the appellant brought his application to assess all 12 of the
    respondents bills.

[3]

Section 4(1) of the
Solicitors Act
provides that no bill shall
    be referred for assessment, after twelve months from the time such bill was
    delivered, sent or left as aforesaid, except under special circumstances to be
    proved to the satisfaction of the court or judge to whom the application  is
    made.

[4]

And, as the application judge noted, there is a presumption that payment
    of an account indicates that the client accepted the account as reasonable and
    proper.

[5]

However, that presumption may be rebutted by the client. Section 11 of
    the
Solicitors Act
provides as follows:

The 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.

[6]

The appellant argues that the application judge erred in concluding that
    the special circumstances of the case did not rebut the presumption that the
    appellant had accepted the bills as reasonable and proper. Alternatively, the appellant
    argues that, even if there were no special circumstances, the application judge
    erred in declining to exercise his inherent jurisdiction to order the
    assessment of the respondents bills.

[7]

Determining whether special circumstances exist is a fact-specific
    inquiry. Sections 4(1) and 11 give an application judge a broad discretion to
    be exercised on a case-by-case basis. This court will defer to the decision of
    the application judge regarding the existence of special circumstances, absent an
    error in principle or a clearly unreasonable result:
Echo Energy Canada
    Inc. v. Lenczner Slaght Royce Smith Griffin LLP
, 2010 ONCA 709, 104 O.R.
    (3d) 93, at paras. 29 and 32, leave to appeal to S.C.C. refused, [2010]
    S.C.C.A. No. 484.

[8]

We are not persuaded that the application judge erred in principle or
    that her conclusion that special circumstances were not made out is clearly
    unreasonable.

[9]

The application judge concluded that the evidence did not support the
    appellants allegation that he was billed for duplicative work. Nor was she
    persuaded on the evidence that the appellant was dissatisfied with the quality
    of the respondents work. The application judge concluded that the two communications
    from the respondent  on November 18, 2011 and February 17, 2012  advising
    that if outstanding accounts were not paid the respondent would have to cease
    working on the matter, were insufficient to constitute special circumstances
    warranting the assessment of all 12 accounts. Finally, she concluded that the
    explanation for the delay that she accepted (that the appellant was too busy
    working on his tax matter to focus earlier on seeking an assessment) did not
    amount to special circumstances.

[10]

We
    see no merit to the appellants complaints that the application judge failed to
    consider whether special circumstances were made out from the clients
    perspective and that she concluded that the appellants complaints regarding
    the respondents accounts had to be raised during the course of the
    respondents retainer.

[11]

Her
    reasons, properly read, do not support either of these claims. The application
    judge recognized her obligation to consider whether there were special
    circumstances from the perspective of the client. We see no basis to conclude
    that she did not, in fact, do so. Further, the application judge did not hold
    that a clients complaints about his/her solicitors accounts must be raised
    during the course of the solicitors retainer. She simply observed  after
    finding that there was no evidence of duplication of work  that the clients
    concerns were never expressed until after the solicitor/client relationship had
    been terminated. While not controlling, this was a relevant consideration.

[12]

The
    application judges factual findings were supported by the evidence, and her
    conclusion, based on those findings, that special circumstances were not made
    out, was reasonable. Respectfully, on this appeal the appellant seeks to
    re-argue his application.

[13]

The
    application judge also considered whether the court should in any event exercise
    its inherent jurisdiction to order an assessment of the accounts, separate and
    apart from the provisions of the
Solicitors Act
. She concluded that,
    in the circumstances of this case, the failure of the respondent to advise the
    appellant of his right to request an assessment was not in and of itself
    sufficient to entitle the appellant to an assessment: there was no evidence
    that he was unaware of his right to request an assessment, and no basis to
    infer this. Indeed, given that the appellants new lawyer immediately
    challenged and sought a reduction in the respondents last account, the
    reasonable inference is that the appellant became aware of his right to an
    assessment, at latest, shortly after he retained new counsel. We see no basis
    for appellate intervention with the application judges exercise of her
    discretion.

[14]

This
    appeal is accordingly dismissed. The respondent shall be entitled to costs in
    the amount of $5,000, inclusive of HST and disbursements.

Alexandra
    Hoy A.C.J.O.

E.A.
    Cronk J.A. 

Sarah
    Pepall J.A.


