Walker & Taylor v. Boers (1996), 46 O.R. (3d) 372 (C.A.)

  • Document:
  • Date: 2018

DATE: 19991203

DOCKETS:          C31955; C31956

 

COURT OF APPEAL FOR ONTARIO

CARTHY, AUSTIN AND MacPHERSON JJ.A.

In the Matter of Walker & Taylor, Solicitors B E T W E E N :   )

)

WALKER & TAYLOR                             ) Peter F. Haber

)                  for the client/appellant (Applicants/ )

Respondents))

)

and                               )

)

GLORIA KATHLEEN BOERS                              ) John Pichelli

)     for the solicitors/respondents

(Client/          ) Appellant))

)     Heard:     October 21, 1999

)

On appeal from the orders of Morrison J. dated March 18, 1999. AUSTIN J.A.:

 

[1]   These appeals consider the questions whether, after assessment, a solicitor’s account to a client may accrue interest and, if so, at what rate and pursuant to what authority.

 

FACTS

 

[2]   The facts are straightforward and typical of a solicitor and client relationship.     The applicants, who are solicitors, were retained by the client in a matrimonial matter. The solicitors rendered two accounts dated May 28 and October 10, 1990. Each account bears a stamp reading:

In accordance with Section 35 of the Solicitors Act, interest will be charged at the rate of % per annum on unpaid fees, charges or disbursements calculated from a date that is one month after this statement is delivered.

The rates stipulated were 15% for the account of May 28 and 16% for the account of October 10.

 

[3]   The accounts were not paid and at the instance of the solicitors they were assessed on July 24 and November 20, 1990 respectively.     Certificates of assessment were issued by the Assessment Officer.

 

[4]   The account of May 28, 1990 was for fees of $10,000 and disbursements of $1,268.50.                   Credit was given by the Assessment Officer for payment of $1,100 on account and it was assessed on July 24, 1990 at $10,168.50.

 

[5]   The account of October 10, 1990 was for fees of $6,000 and disbursements of $490.13. It was assessed on November 20, 1990 at $6,490.13.

 

[6]   Nothing was allowed in either certificate for interest. This is not surprising.     In each case the consent of the client in writing was filed.             The first reads, in part, as follows:

…I hereby consent to the assessment of Mr. Taylor’s interim account dated May 28, 1990, Invoice No. 213 as rendered, (fees: $10,000 disbursements. $1,268.50) and confirm that I have paid the sum of $1,100.00 on June 26, 1990 towards the same. The second consent followed the same form.

 

[7]   The same form of certificate was used in both cases. The earlier one reads, in part, as follows:

That the bill of costs as delivered amounted to the sum of                                                     $11,268.50

and as assessed by me amounts to the sum of                                                                            $11,268.50

and has been paid on account of the said bill                                                                             $ 1,100.00

and therefore I find there is due to the solicitor by the client the sum of                             $10,168.50

and I allow interest to the —- in the sum of                                                                              $————

and the costs and disbursements of  the assessment are allowed to the                                 ——–

at the sum of                                                                                                                                      $————

making a total of                                                                                                                               $10,168.50

due (to) the solicitor (by) the client

 

[8]   Nothing further was paid by the client following the assessments and writs of seizure and sale were issued.     The writ to enforce the certificate of July 24, 1990 was issued on June 21, 1991 to the Sheriff of the Regional Municipality of Hamilton- Wentworth.     It directs the Sheriff to seize and sell real and personal property so as to realize $10,168.50 and interest at 15% per year commencing July 24.

 

[9]   The writ to enforce the certificate of November 20 was issued December 19, 1990. It directs realization of $6,490.13 and interest at 14% from November 20, 1990.

 

[10]  For a reason or reasons unexplained, proceedings against the claims for interest at 15% and 14% were not brought on behalf of the client until February 18, 1999.

 

LEGISLATION

 

[11]  The relevant legislation is found in the Solicitors Act, R.S.O. 1990 c.S-15 and the Courts of Justice Act, R.S.O. 1990 c.C- 43 (CJA) as follows:

 

Solicitors Act

 

2(1) No action shall be brought for the recovery of fees, charges or  disbursements for business done by a solicitor as  such until one month after a bill thereof, subscribed with the proper hand of the solicitor, his or her executor, administrator or assignee or, in the case of a partnership, by one of the partners, either with his  or her own name, or with the name of the partnership, has been delivered to the person to be charged therewith, or sent by post to, or left for the person at the person’s office or place of abode, or has been enclosed in or accompanied by a letter subscribed in like manner, referring to such bill.

3 Where the  retainer  of  the solicitor is not disputed and there are no special circumstances, an order may be obtained on requisition from a  local registrar of the Ontario Court (General Division),

(c) by the solicitor, for the assessment of a bill already delivered,  at any time after the expiration of one month from its delivery, if no order for its assessment has been previously made.

13     Every application to refer  a bill for assessment, or for the delivery of a bill, or for the delivering up of deeds, documents and papers, shall be made In the matter of (the solicitor), and upon the assessment of the bill the report of the officer by whom the bill is assessed, unless set aside or varied, is final and conclusive as to the amount thereof, and payment of the amount found to be due and directed to  be paid may be enforced according to  the practice of the court in which the reference was made.

33(1)  A solicitor may charge interest on unpaid fees, charges or disbursements, calculated from a date that is one  month after the bill is delivered under section 2.

(2)     Where, on an assessment of a solicitor’s bill of fees, charges and disbursements, it appears that the client has overpaid the solicitor, the client  is entitled to interest on the overpayment calculated from the date when the overpayment was made.

(3)   The rate of interest chargeable under subsection (1) or (2) shall not exceed the rate that is established for the purpose of section 128 of the Courts of Justice  Act in respect of an action that is commenced on the day the bill is delivered, or the overpayment is made, as the case may be.

(4)   The rate of interest applicable to a bill shall be shown on the bill delivered.

(5)      On the assessment of a solicitor’s bill, the assessment officer may, where he or she considers it to be just to do so in all the circumstances,

(a)   disallow interest; or

(b)   fix a rate of interest that is less than the maximum rate authorized by this section. in respect of the whole or any part of the amount allowed on the assessment.

 

Courts of Justice Act

 

128(1) Prejudgment interest  –  A person who is entitled to an order for the payment of money to claim and have  included in the order an award of interest thereon at the prejudgment interest rate,  calculated from the date the cause of action arose  to the date of the order.

….

(4)      Exclusion – Interest shall not be awarded under subsection (1),

(g)               where interest is payable by a right other than under this section.

129(1) Postjudgment interest – Money owing under an order, including costs to be assessed or costs fixed by the court, bears interest at the postjudgment interest rate, calculated from the date of the order.

….

(5)      Other provision for interest – Interest shall not be awarded under this section where interest is payable by a right other than under this section.

 

POSITIONS OF THE PARTIES

 

[12]  The client’s position is that:

(a)   the Solicitors Act, R.S.O. 1990, c.S.15 provides a complete code for the determination of solicitors’ accounts including the interest payable thereon,  both before and after assessment;

(b)   sections 33(1) and (3) of that Act state that the solicitor may charge interest on an account which has been outstanding for at least a month;

(c)   such interest may not exceed the rate set by s.128 of the CJA (the pre-judgment rate);

(d)   on assessment, the Assessment Officer may disallow any interest or fix a lower rate;

(e)   the rate, if any, set by the Assessment Officer, is what may be realized by the Sheriff in enforcement proceedings;

(f)   apart from (e), the CJA has no application and, in particular, the post-judgment interest rate set by s.129 of the CJA has no application to the determination of the rate of interest payable on a solicitor’s account after assessment;

(g)   as no interest was allowed by the Assessment Officer on either account, none can be collected from the client.

 

[13]  The solicitors’ position is that:

(a)   section 33 of the Solicitors Act deals with the interest chargeable up to and including the date of assessment;

(b)   thereafter, the certificate or report of the Assessment Officer is effective as an order; and

(c)   by virtue of s.129 of the CJA, post-judgment interest as determined by that section, is payable;

(d)   as a result, interest is owing on the two accounts at 15% and 14% respectively.

 

THE DECISION BELOW

[14]  The client moved in the case of each writ to delete any reference to the accrual of interest or, in the alternative, for an order directing the Sheriff not to collect any interest. Both motions were dismissed with costs fixed at a total of $300.     The reasons of the motions judge read, in part, as follows:

The solicitor’s bill including interest to be charged was assessed. The bill was approved in part however no interest then owing was permitted and that amount of the bill concerning interest was not allowed. The certificate of assessment then became an order enforceable through the courts. I find that this became subject to interest owing on the amount under the order.

The amount of interest is then the amount owing under the Courts of Justice Act. The amount for interest set out in the writ of seizure is the correct rate under the Courts of Justice Act.

 

ANALYSIS

 

[15]  The main issue between the parties may be stated very narrowly:     does the jurisdiction of the Assessment Officer to disallow or fix interest under s.33(5) of the Solicitors Act, include both pre- and post-judgment interest or just pre-judgment interest?

 

[16]  The appellant client, in asserting that the jurisdiction of the Assessment Officer includes both pre- and post-assessment interest, relies on both s. 33(5)      of the Solicitors Act and on a number of decided cases.

 

[17]  Insofar as s. 33(5) is concerned, subsection (b) provides a limit to the rate of interest that may be allowed, but there is no express term limiting the period for which interest may be charged.     The language of the section is open to the interpretation asserted by the appellant. At the same time it should be noted that the reference in s. 33(3) is to the pre- judgment provision in the CJA.

 

[18]  Re Kimpe et al and Union Gas Ltd. (1985) 51 O.R. (2d) 112 (Div. Ct.) dealt with the question whether interest was payable under s. 37 of the Judicature Act (R.S.O. 1980, c.223, the predecessor of s. 129 CJA) on costs taxed against Union Gas which secured an order from the Ontario Energy Board authorizing the storage of gas under the land of the claimant on payment of compensation and costs.               The Ontario Energy Board Act empowered the Board to award costs but did not mention interest on them. The Divisional Court held that the Act was intended to govern all substantive rights in relation to compensation and since interest was a substantive right and was not mentioned in the Act, the right to interest was not intended to be conferred on a claimant. Accordingly, s. 37 of the Judicature Act had no application.

 

[19]  In Convert-A-Wall Ltd. v. Brampton Hydro-Electric Commission (1988) 65 O.R. (2d) 385 (Div. Ct.), the question was not one of interest or no interest but, rather, which Act governed in the circumstances and determined the rate. This was an action under the Mechanics’ Lien Act. The contract provided that “If the Owner fails to make payments to the Contractor as they become due under the terms of this Contract, or in an award by arbitration or court, interest of 18% per annum on such unpaid amount shall also become due and payable until payment” (p.395). The owner was found liable and an award made against him for money wrongfully withheld. The contractor was held to be entitled to pre-judgment interest on the unpaid extras to the date of judgment at the contract rate of 18%, in accordance with what is now CJA s.128(4)(g) and post-judgment interest at the same rate, in accordance with what is now CJA s.129(5).

 

[20]  In Diefenbacher v. Young (1995) 22 O.R. (3d) 641 (Ont. C.A.), a departed partner successfully sued for a share of the goodwill of the partnership. The trial judge applied the Partnerships Act in directing the division of assets and then awarded pre-judgment interest pursuant to the CJA. Section 42(1) of the Partnerships Act however provides that:

42(1)   Where any member of a firm dies or otherwise ceases to be a partner and the surviving or continuing partners carry on the business of the firm with its capital or assets without any final settlement of accounts as between the firm and the outgoing partner or his estate, then, in the absence of an agreement to the contrary, the outgoing partner or his estate is entitled, at the option of himself or his representatives, to such share of the profits made since the dissolution as the court finds to be attributable to the use of his share of the partnership assets, or to interest at the rate of 5 per cent per annum on the amount of his share of the partnership assets.

 

[21]  Carthy J.A., writing for the court, said at pp.643 and 644:

This section has been in existence here and in England for approximately 100 years, attracting little attention in the jurisprudence and having much earlier origins than the modern provisions for prejudgment interest. Section 42 provides for a very different formula for the assessment of compensation but is directed to the same purpose as prejudgment interest – the loss associated with being deprived of an entitlement between the date of the occurrence and the ultimate date of judgment after trial. Prior to the comparatively recent enactment of the provision for prejudgment interest, there would have been no compensation for delay in recovering an unliquidated claim, such as is here asserted, other than through this provision of the Partnerships Act.  It is therefore my conclusion that, despite the anachronistic rate of 5 per cent, s. 42 of the Partnerships Act can apply in appropriate circumstances and can oust the entitlement to prejudgment interest under s. 128(1) of    the Courts of Justice Act.

 

[22]  In the result, the pre-judgment provision in the trial judgment was varied to substitute 5% for the rate stipulated by the CJA.

 

[23]  Reference was also made to Re Josephs Estate, (1993) 14 O.R. (3d) 628 (Gen. Div.). In that case, Borins J. disallowed a claim for post-judgment interest on an award of costs made as part of an order following the passing of accounts upon the basis that costs awarded by the courts in a proceeding involving the administration of an estate are a charge upon the estate and as such do not attract interest.

 

[24]  It is my respectful view that none of these decisions really assists the appellant. Kimpe was simply a finding that neither the Ontario Energy Board Act nor the Expropriations Act, R.S.O. 1980 c.148 provided for the accruing or payment of interest on costs.

 

[25]  Convert-A-Wall is a case where s. 129(5) applied because interest was payable by virtue of a right other than under s. 129(1).     The appellant’s position is that the exercise by an Assessment Officer of the power granted by s. 33(5) of the Solicitors Act could create such a right.     In the present instance, no interest was awarded and accordingly no right was created.

 

[26]  Diefenbacher is a case where the operation of s. 129 CJA is clearly ousted.          As Carthy J.A. said in that case, the provision in s. 42(1) of the Partnerships Act is an anachronism; it is a left-over from pre-1978 when the present day entitlement to pre- judgment interest was created.         Section 33(3) of the Solicitors Act limits the pre-judgment rate of interest chargeable by a solicitor to the level fixed by the CJA.      It would seem logical to tie the post-judgment rate to the same Act.

 

[27]  Joseph does not assist the court. The outcome there was dictated by jurisprudence extending back over 150 years. The position asserted by the appellant in the instant case has no similar support.

 

[28]  In fact, the decision which is closest on its facts to the instant situation supports the conclusion of the judge below. That decision is Rolston, Humphrey & Babij v. Seaton (1982), 39 O.R. (2d) 617 (Div. Ct.). At the time of the events of that case, the Judicature Act was in force and ss. 36 and 37 provided respectively for pre- and post-judgment interest. The Solicitors Act, R.S.O. 1980 c.478, however, had not yet been co-ordinated with those sections. The relevant section, s. 35 of the Solicitors Act, read as follows:

35.  A solicitor may charge interest at the rate of 5 per cent per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from demand from the client, and where the same are payable by a minor or out of a fund presently available the demand may be made on the parent or guardian or the trustee or other person liable.

 

[29]  The solicitors, Rolston et al, had their account referred to the Taxing Officer for taxation.     He issued a report to the effect that $86.54 remained owing to the solicitors.   The solicitors then sought to issue a writ of execution to enforce their claim.  In addition, they sought interest at the rate prescribed by s. 36 of the Judicature Act. The Local Registrar, however, took the position that the maximum rate of interest recoverable was 5% as prescribed by s. 35 of the Solicitors Act.

 

[30]  The Divisional Court disagreed. Southey J. speaking for the court (Southey, Saunders and Callaghan JJ.) said at p.619:

We are of the view that s. 35 of the Solicitors Act does not govern the rate of interest to be recoverable by a solicitor after he has taxed his bill and the report of the taxing officer has been confirmed in the manner that occurred in this case.

Section 35, in our view, relates to interest that is analogous to pre-judgment interest in an ordinary case and has no application to the interest recoverable after judgment is obtained. Once judgment has been obtained by the confirmation, which is the effect of the confirmation of the report of the taxing master, the rate of interest then recoverable is that specified in s. 36 of the Judicature Act, as with any other judgment.  In our view, the respondent was obliged to include a direction to recover interest at that rate in the writ of fieri facias.

 

(Emphasis added)

 

[31]  I agree entirely with those comments and with the conclusion reached.     That conclusion is a matter of logic, following from the fact that the certificate or report of the Assessment Officer, expressions sometimes used interchangeably, becomes a judgment or order upon confirmation.     In the instant case, as in Rolston, the report was confirmed by the passage of 15 days, without a motion to oppose confirmation, following the serving of the notice of the filing of the report:     see rule 54.09(1)(b). Once the certificate or report became a judgment or order, s. 129 of the CJA would apply and post-judgment interest would accrue as provided by that section.

 

[32]  The appellant also relies on s. 129(5) of the CJA which reads as follows:

129(5) Interest shall not be awarded under this section where interest is payable by a right other than under this section.

 

[33]  It is argued that the right found in s. 33(5) of the Solicitors Act  is a “right other than under this section”.       What is conferred by s. 33(5), however, is not a right; it is a power or discretion given by the legislation to the Assessment Officer. Convert-A-Wall provides an example of a “right other than under this section”.

 

[34]  It should be noted as well that ss. 2 and 3 of the Solicitors Act allow a lawyer to collect an account in two different ways – by action under s. 2 or by reference under s. 3. If the course provided by s. 2 is followed, then, if the lawyer is successful, the result will be a judgment in favour of the lawyer and, if the proceeding is conducted by a judge, pre- judgment interest will fall to be dealt with under s. 128 of the CJA.          Barring exceptional circumstances, s. 129 of the CJA will then apply and post-judgment interest will accrue at the applicable rate. If the course provided by s. 3 is followed, the appellant argues that post-judgment interest will fall to be determined under s. 33(5) of the Solicitors Act.  That anomaly suggests that s. 129 of the CJA should apply whichever route is followed. Otherwise lawyers would be inclined to sue to get the benefits of the automatic nature of s. 129.  That cannot have been the intention of the Legislature.

 

[35]  Finally, two matters should be noted. The first is that the reference in s. 33(3) of the Solicitors Act is to s.128 CJA which deals with entitlement to pre-judgment interest.  This would tend to suggest that s. 33 is limited to pre-assessment interest as opposed to both pre- and post-assessment interest. The second is that no reason of principle has been advanced why post-judgment interest on a solicitor’s account should be governed by s. 33(5) of the Solicitors Act rather than by s. 129 of the CJA. Section 33(5) gives an Assessment Officer the power to disallow any interest or to limit the rate of interest to a level lower than that set by the CJA.  That power is appropriate and necessary with regard to pre-assessment interest.  Where a solicitor is slow in delivering an account, for instance, the disallowance of interest or the allowance of interest at a rate lower than set by s. 128 might be appropriate. (Re Howland (1925), 28 O.W.N. 417 (H.C.).)     Beyond the point of assessment however, it is difficult to see why no interest should be authorized or a reduced rate allowed. The intent is that the assessment, subject to confirmation, is to be final. (Solicitors Act, s.13.) After confirmation there is no reason why a solicitor’s account should be treated any differently than any other account.          Nor has any reason been suggested why s. 129 of the CJA should not apply to both equally.

 

[36]  Counsel for the appellant is right in one respect, namely, the rates set out in the accounts.    The account of May 28, 1990 stipulated 15%. As I interpret s. 128 of the CJA, the maximum allowed would have been 12.5%.  The rate stipulated in the account of October 10, 1990 appears to have been 16% whereas the allowable rate was 13.9%.       As no interest was allowed on either account by the Assessment Officer, the erroneous claims are irrelevant.  The rates claimed in the writs of seizure and sale were 15% and 14% respectively and, as found by the motions judge, these were the allowable post-judgment rates under s. 129.

 

CONCLUSION

 

[37]  I conclude that the appeals are without merit and that the judge of first instance was entirely correct in his conclusions. I would therefore dismiss these appeals with one set of costs between them.

 

 

 

Released:  Dec. 3/99

 

“Austin J.A.”

“I agree.  J. J. Carthy J.A.”

“I agree.  J. C. MacPherson J.A.”