Hamalengwa v. Ontario (Attorney General), 2009 ONCA 859, released online today, makes clear that "Fisher" order accounts are subject to assessment. The Court writes:
[1] The Attorney General was required under the term of the "Fisher" order to pay the appellants' legal bills. That order also provided that Legal Aid Ontario would "vet and approve" the bills. In our view, that provision, obviously introduced into the order because the Attorney General could not review the bills during the criminal prosecution, does not preclude the operation of s. 9 of the Solicitors Act, which contemplates assessments of bills at the request of "third party" payors. The fact that the appellants' bills may have been vetted and approved by Legal Aid may figure in the assessment, but does not remove this case from the reach of the assessment process.
[2] We agree with the motion judge that "special circumstances" within the meaning of s. 11 of the Solicitors Act exist in this case. In particular, the strong comments of the experienced trial judge referred to by the motion judge, and the practical inability of the Attorney General to move for an assessment before the trial was complete constitute "special circumstances".
James Morton
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Toronto, Ontario
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