Don't Fight An Application To Assess Your Account

Although distasteful, when a former client, no matter how fair the account, seeks to assess, just save the hassle and consent.

Today's case in Glanc v. O'Donohue & O'Donohue, 2008 ONCA 395 is a good example of why fighting the entitlement to assess is not useful.

Despite obtaining a remarkable result, a premium of about $20,000,000 (a result three times better than initially available), former clients sought to assess a solicitor's account.

As part of an overall agreement the 'client' was a company owned by three sisters (although not set out it seems likely this arrangement was for the sisters' benefit and allowed them to have a tax advantage -- certainly counsel did not benefit). Accounts were rendered to the company and paid by the company. The work, it seems, was done for the sisters (or some of them) but only two sisters sought to assess. The company and the third sister did not seek to assess.

Despite case law suggesting a person liable to pay only part of an account does not have standing to assess the Court of Appeal allowed the two sisters to assess saying they were the real clients.

The Court ruled:

"... The courts have held that a person who is responsible to pay a portion of the account is not a person with standing to request the referral of an account for assessment as that person is not liable to pay the bill in whole, within the meaning of the Solicitors Act. (See McGugan v. McGugan, [1892] O.J. No. 16 (C.A.) at para 6 and Kayor Energy Systems Inc. v. Davies, Ward & Beck, [2001] O.J. No. 2436 (S.C.J.) at paras 23, 24 and 28).

[31]          Here, however, Estelle is not "a person who is responsible to pay a portion of the account".  [Emphasis added.]  The evidence is that she and Krysia jointly retained the law firms.  In the absence of some indication to the contrary – there is none here – Estelle and Krysia would each be liable for the whole amount of the bill.  Moreover, I am not persuaded that either McGugan v. McGugan (1892), O.A.R. 56 (C.A.), aff'd (1892), 21 S.C.R. 267 or Kayor Energy Systems Inc. v. Davies, Ward & Beck, [2001] O.T.C. 468 (S.C.J.) support the proposition for which they are cited."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4