


COURT OF APPEAL FOR ONTARIO

CITATION: Victor Ages Vallance LLP v. OZ
    Optics Ltd., 2022 ONCA 169

DATE: 20220301

DOCKET: C69386

Feldman, MacPherson and Lauwers
    JJ.A.

BETWEEN

Victor
    Ages Vallance LLP

Applicant (Respondent)

and

OZ Optics Ltd.

Respondent (Appellant)

AND BETWEEN

Victor
    Ages Vallance LLP

Applicant (Respondent)

and

OZ Merchandising Inc., Ottawa
    Wizards, OZ Dome Soccer Club and Omur Sezerman

Respondents (Appellants)

AND BETWEEN

Victor
    Ages Vallance LLP

Applicant (Respondent)

and

OZ Merchandising Inc.

Respondent (Appellant)

AND BETWEEN

Victor
    Ages Vallance LLP

Applicant (Respondent)

and

OZ Merchandising Inc.

Respondent (Appellant)

Nicholas Karnis, for the appellants OZ
    Optics Ltd., OZ Merchandising Inc., Ottawa Wizards, and OZ Dome Soccer Club

Omur Sezerman, acting in person

David Cutler, for the respondent

Heard: February 22, 2022 by video conference

On appeal from the orders of Justice Kevin
    B. Phillips of the Superior Court of Justice, dated April 1, 2021.

REASONS
    FOR DECISION

[1]

The appellants, the four OZ entities and its
    principal Omur Sezerman, appeal from the decision of the Superior Court
    confirming the assessment by an assessment officer of four accounts of their
    former solicitors.

[2]

The assessment hearing spanned seven days. The
    assessment officer assessed each of the accounts by applying the test from
Cohen
    v. Kealey & Blaney
(1985), 26 C.P.C. (2d) 211 (Ont. C.A.) that
    includes the following nine factors:

a.

the time expended by the solicitor;

b.

the legal complexity of the matters to be dealt
    with;

c.

the degree of responsibility assumed by the
    solicitor;

d.

the monetary value of the matters in issue;

e.

the importance of the matters to the client;

f.

the degree of skill and competence demonstrated
    by the solicitor;

g.

the results achieved;

h.

the ability of the client to pay; and

i.

the expectation of the client as to the amount
    of the fee.

[3]

She also added as a tenth factor, credibility,
    but determined in the end that it was not necessary to make any specific
    findings regarding the credibility of either the solicitor or the appellant, Mr.
    Sezerman.

[4]

The assessment officer confirmed the four
    accounts submitted by the solicitors for the requested total of $148,120.95.

[5]

Phillips J. of the Superior Court dismissed the
    appellants motion to review the decision of the assessment officer. This is an
    appeal from that decision. The issues raised before the reviewing judge were:
    1) whether the assessment officer exceeded her jurisdiction by embarking on the
    assessment when the nature of the retainer was in dispute; 2) whether the
    assessment officer erred in accepting one version of events over another; and 3)
    whether the assessment officers decision was tainted by a reasonable
    apprehension of bias.

[6]

The reviewing judge rejected each of these
    submissions. He applied the deferential standard of review that applies to a
    review of an assessment officers decision, absent errors, misapprehension of
    the evidence or unreasonableness:
Rabbani v. Niagara (Regional Municipality)
,
    2012 ONCA 280, 106 L.C.R. 235, at para. 6.

[7]

On the first issue, the reviewing judge noted
    that the assessment officers jurisdiction had previously been challenged in
    front of Beaudoin J. who found there was no special circumstance requiring a
    transfer to a judge. Another judge of the Superior Court had denied leave to
    appeal Beaudoin J.s decision. The reviewing judge concluded that the first
    argument was a collateral attack on those decisions.

[8]

On the second issue, the reviewing judge found that
    the assessment officer made findings based on the evidence and that her final
    assessment was not grossly unfair or inappropriate so as to constitute an error
    in principle. Her decision was comprehensive and detailed and clearly explained
    how she reached her conclusions.

[9]

On the third issue, the reviewing judge reviewed
    the record and concluded that the impugned comments by the assessment officer
    do not, either on their own or in aggregate, come anywhere close to a basis
    for a finding of reasonable apprehension of bias.

[10]

We see no error in any of the findings of the
    reviewing judge, and no basis to interfere with his decision.

[11]

One of the main issues that was pursued on the
    appeal was whether the evidence before the assessment officer disclosed an
    overpayment of the solicitors accounts over the 11-year relationship between
    the parties of approximately $210,000. The issue arose because Mr. Victor, one
    of the appellants solicitors, had stated that he had charged $1,282,058.99 in legal
    fees over time, and the appellants had paid bills totalling $1,492,000. However,
    the evidence also disclosed that the total payment of $1,492,000 included
    disbursements and H.S.T. As a result, there was no discrepancy and no issue of
    an overpayment.

[12]

The appeal is dismissed with costs payable to
    the respondent in the agreed amount of $6,800, inclusive of disbursements and H.S.T.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

P.
    Lauwers J.A.


