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No absolute time bar for assessment of accounts

Trials & Tribulations
|Written By Antonin I. Pribetic
No absolute time bar for assessment of accounts

Sometimes it pays to not take what you read on the Internet at face value. While there are significant benefits in making legislation and court decisions freely available to the general public through government web sites such as e-Laws as well as CanLII, sometimes the provincial legislature does not keep up with judicial decisions that effectively repeal or modify provincial statutes.

A good illustration is the 2007 Ontario Court of Appeal decision in Guillemette v. Doucet, a case involving the assessment of a solicitor’s account under the Solicitors Act, and the impact of the Limitations Act, 2002.

If you read the current version of s. 3(b) of the Ontario Solicitors Act, it still provides that a client has one month from the delivery of a solicitor’s bill to obtain an order for assessment on requisition.

Furthermore, s. 4 still reads that a client cannot refer an account for assessment more than 12 months after the account was delivered, “except under special circumstances to be proved to the satisfaction of the court.”

In Guillemette, the appeal addressed the applicability of the two-year limitation period set out in s. 4 of the Limitations Act, to an application for an order directing the assessment of a solicitor’s accounts brought pursuant to s. 4 of the Solicitors Act.

The appellant, Peter J. Doucet, a lawyer, argued that s. 4 of the Limitations Act applied and that the application brought by his former client, Laureine Guillemette was out of time.

The client applied to assess the solicitor’s accounts more than 33 months after the last account was paid in June of 2003. However, the application judge allowed the account to be referred for assessment based on the special circumstances exception contained in s. 4.

After noting that any limitation periods in the Solicitors Act no longer applied by virtue of s. 19 of the new Limitations Act, Ontario Court of Appeal Justice David Doherty explained the effect of the Limitations Act’s s. 20:

“I think the ‘special circumstance’ qualifier in s. 4 of the Solicitors Act falls within s. 20 of the Limitations Act. The twelvemonth time period in s. 4 has repeatedly been described as a limitation period: see e.g. Enterprise Rent-a-Car Co. v. Shapiro. . . . Where ‘special circumstances’ exist, the court will order an assessment beyond twelve months after delivery of the account, thereby effectively extending, suspending or otherwise varying the twelve month time limit set out in s. 4.

“Consequently, while by virtue of s. 19 of the Limitations Act, the two-year limitation period in that Act trumps the twelve month limitation period in s. 4, s. 20 of the Limitations Act preserves the ‘special circumstances’ exception set out in s. 4 of the Solicitors Act.”

Applying the facts at hand, Guillemette had to show special circumstances before an assessment could be ordered because she was seeking to assess an account that had been previously paid (s. 11 of the Solicitors Act) as she was seeking an assessment more than two years after the delivery of the accounts: Limitations Act, s. 4; Solicitors Act, s. 4.

Although the Court of Appeal acknowledged a lengthy passage of time after a bill has been paid will be a significant consideration in exercising the “special circumstances” discretion in both ss. 4 and 11 of the Solicitors Act, “[t]ime alone will not, however, preclude the examination of the suitability of a lawyer’s accounts where other circumstances compel a review of those accounts.”

In addition, were it necessary to do so, Doherty would have held that under the terms of the transitional provisions in s. 24(5) of the Limitations Act, the limitation period in the Solicitors Act applied since Guillemette’s claim was discovered by her prior to Jan. 1, 2004. Hence, the claim was not time barred under that statute.

Future implications

Why is the Guillemette case so important to Ontario litigants and Ontario lawyers?

I doubt many lawyers will be thrilled to know that their accounts are potentially subject to assessment ad infinitum. It seems that only the legal profession allows for this form of refund policy.

Every lawyer has taken at least one haircut on a client’s bill just to keep them from going across the street. With the recent debate over the death of the billable hour, perhaps it’s time for lawyers to consider not only the way they charge for their time, effort, and expertise, but also how to keep clients satisfied to avoid “buyer’s remorse.”

In the end, the bottom line is that there is no absolute time bar for clients to bring applications to have their lawyer’s accounts assessed.

Stay tuned for my next column discussing why there is no limitation period or time bar for enforcing foreign judgments or foreign arbitral awards against foreign defendants.

Antonin I. Pribetic is litigation counsel at Steinberg Morton Hope & Israel LLP, and a sessional lecturer at UTM-Rotman School of Management’s diploma in investigative and forensic accounting program and author of the Trial Warrior Blog His column will appear on every second week.

  • Sharp Practice

    Dino De Nicola
    It would be interesting to actually see in any print or column, on how the Public Guardian and Trustee handle such affairs as solicitors assessments. Furthermore how they truly manage the assignments of the matters provided to them as well as the solicitors on their "live list" who jockey for position.
  • Solicitors account assessment by client

    I liked your views and legal grounds for assessment of account. I have Solicitors account pre-bills showing different dates of activity than actual and the dates are even more different when an explaination was provided by Solicitors to LSUC. Since the documents were presented under oath at assessment session in court, with evidence that the document was fabricated does this become a case for Perjury?

    My solicitor showed sharp practise of having his own bill assessed even before expiry of 30 days after the bill was actuallty delivered through e-mail and with no special circumstances what are your views on Solicitor's lawyer going out of turn and then insisting that my application of assessment should stand although client made a requisition within 30 days?