Whether you have an adequate retainer in trust, or you get paid after each account, or you expect payment at the end of your case, the law grants clients the right to have a lawyer’s accounts assessed. The process has been made very simple for the lay person. All they need to do is attend at the courthouse counter, fill out a few forms and obtain a date in court to begin the process of having their lawyer’s accounts assessed. Although the Assessment Officer has the power to validate and order payment of the exact amounts charged by the lawyer, the general rule is that Assessment Officers will usually reduce the balance owing. The real question is by how much. It is very common for Assessment Officers to reduce the accounts by a minimum of 15%. Of course, the onus is on the lawyer to establish the amounts owed. Indeed, the primary witness in such a proceeding is the lawyer, who then is cross-examined by the client. Not only is the lawyer required to attend this hearing (which may last a few days) but if there are other lawyers or clerks whose time dockets are included in the accounts, they too may be required to attend and testify. The cost to the lawyer of time away from the office and other clients can be significant. That is why many of these cases result in a settlement at the Pre-Assessment Hearing by the lawyer waiving the balance owing or even refunding monies earned and already paid.
Lawyers have been granted limited protections in this arena. Case law has already established that a client can have all past accounts assessed if they relate to the same retainer. This means that a lengthy case that may have resulted in many accounts issued (and even paid by the client) may later be subjected to assessment and reduction.
The Solicitor’s Act created the right granted to clients to invoke the assessment process. Section 3 allows a client to have the accounts assessed within 1 month from the delivery of the last account. In this case, all the client needs to do is attend at the courthouse counter and obtain a hearing date. Section 4 precludes an assessment after 12 months from the delivery of the last account unless there are special circumstances and the client obtains an order for assessment by arguing a motion before a judge. The Solicitor’s Act, however, creates a gap for the period between 1 month and 12 months from the delivery of the last account. It has been accepted that if a client did not commence the assessment process within 1 month of the date that the last account was received, then the only way that the accounts could be subjected to assessment is if the client brings a motion before a judge and secures an order to have the accounts assessed. This usually added an extra hurdle, reducing the likelihood of the assessment occurring. More importantly, this extra step provided lawyers with the opportunity to defend the motion by arguing that there were no special circumstances justifying the assessment.
It seems that the Court of Appeal has diluted even this protection. In the decision of McCarthy Tetrault v. Guberman (2012) O.J. No. 4694, the appellate court has swung the door open for clients wishing to assess their lawyer’s accounts. In this case, the client expressed satisfaction for the legal representation provided to him in the case, and even promised to pay his accounts. After the case was completed, the client sought to have the accounts assessed. Since the 30 day period had elapsed, he was required to seek an order from a judge. The motions judge rejected the client’s request and made a finding that the client’s attempts to assess the accounts were “disingenuous and tactical”. The client then appealed this decision to the Court of Appeal who stated at paragraph 13:
“The right of a client to have a lawyer’s account assessed is an important one, not to be taken away except in compelling circumstances. As this court has stated, public confidence in the administration of justice requires the court to intervene where necessary to protect the client’s right to a fair procedure for the assessment of a solicitor’s bill.”
In this very short endorsement from the Court of Appeal, a message has been sent to the bar that clients’ rights to have their lawyer’s accounts assessed will be granted deference over the competing right of lawyers to not be subjected to the cost and inconvenience of a lengthy assessment process.
Editorial Note:
This article was originally written in 2015. The principles it outlines remain important for both lawyers and clients in understanding the rights surrounding legal fee assessments under Ontario’s Solicitors Act. The case law and timelines discussed continue to guide courts in balancing fairness, accountability, and the integrity of the solicitor-client relationship.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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