Solicitor's Account and Special Circumstances

The average lawyer might be forgiven for thinking the Solicitors Act provides some protection against a client complaining about long paid accounts.

The Act provides that a client can assess the account of a solicitor on requisition within one month from the delivery of the account.  Alternatively, if a bill in dispute has been paid, section 11 of the Act provides that a court may order a bill be assessed if there are special circumstances which appear to require that the bill be assessed. 

One might think the phrase "special circumstances" means something out of the ordinary, unusual or special. In practice, however, orders for an assessment will be granted unless there is some good reason not to. Courts will strain to find "special circumstances" and where a Court looks hard for something that thing is usually found.

The recent decision in Roberts v. Mok, 2008 CanLII 4304 (ON S.C.) is a typical assessment case. The solicitor was retained by clients on behalf of their son with respect to criminal charges against him.

The clients paid several accounts but then replaced the solicitor saying he was too costly and had not done a good job. Sadly, one is hard pressed to suggest such a claim by a former client is a "special circumstance"; regardless, the clients, although having new counsel, did not trouble themselves to requisition an assessment within the statutory time and sought a late assessment.

The Court found special circumstances saying:

"The phrase "special circumstances" has been interpreted to include anything of an exceptional nature which the court may consider in exercising its discretion to order an assessment. In Shapiro, Cohen et al v. Enterprise Rent-a-Car Co., [1998] O.J. No. 727, Labrosse, J.A. noted that the court has an inherent jurisdiction and little is required for that jurisdiction to be exercised. ... In this case, in determining whether special circumstances exist, I note that after the delivery of the final account from Mr. Mok,  Mr. and Mrs Roberts were dealing with serious criminal charges concerning their son, including retaining another lawyer to deal with the bail revocation. It is unrealistic to expect that they would seek to have the bill assessed within the time limits set out under the Solicitors Act. Further, while the applicants had retained new counsel to deal with their son's case, there is no evidence that he was retained to deal with the account of Mr. Mok. The applicants were not aware of the requirement to obtain an order for assessment within one month after delivery of the bill of Mr. Mok. "

The Court's language is striking -- the failure to follow the time lines in the Act is justified because of ignorance of the law and an otherwise time consuming personal issue. It seems unlikely that, say, a missed appeal date from the criminal matter the clients were dealing with would be overlooked merely because "the appellants were not aware of the requirement to serve a notice of appeal within one month" of the decision.

Perhaps such a comment is overly harsh. The Court has a duty to supervise legal accounts. That said, it seems the legislation (which is not overly complex) is interpreted in a manner that seems counter to its plain sense and quite contrary to the way other time defining legislation is dealt with.

HAPPY FAMILY DAY

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4