2010 ONSC 7211, 2010 ONSC 7211

CITATION : Gilmour Barristers v. Reichert, 2010 ONSC 7211 COURT FILE NO.: 09-0664-00 DATE: 20101230 SUPERIOR COURT OF JUSTICE - ONTARIO RE: GILMOUR BARRISTERS, Solicitors AND: HANS JORG REICHERT and MARIANNE REICHERT, Clients BEFORE: Howden, J. COUNSEL: C.N. Wiseman, Counsel, for the Solicitors H.J. Reichert and M. Reichert on their own behalf HEARD: November 9, 2010 ENDORSEMENT [ 1 ] Mr. and Ms Reichert move to set aside the Order, the Report and Certificate of Assessment and the Report on interest and costs. Mr. Reichert submitted that the hearing conducted by assessment officer Mr. H.B.

Boyd was unfair because Mr. Reichert’s request for an adjournment was refused. Mr. Reichert asserts that documents were presented in evidence that he had not seen before and were not served on him prior to the hearing. Counsel for the solicitors took the position that the motion was out of time and any further motion in this regard can only be to the Court of Appeal. [ 2 ] I have considered the solicitors’ position and find that the motion is properly before me.

Because the Solicitors failed to serve the assessment officer’s certificate and file with it an affidavit of service, the report was never confirmed and the time for confirmation did not pass before the Reicherts’ motion was brought on. Rule 54.09(1) (

b) requires consent by all parties, which was not provided, or filing of a copy of the certificate and proof of service on all parties to the reference in order for the confirmation time to be triggered. The fact that the assessment officer files his own certificate does not relieve the party relying on the rule from complying with it. In any event there is no filing date on the certificate to trigger the time for confirmation. I therefore find the motion to be properly before me. [ 3 ] The standard of review on a proceeding challenging a report and certificate of an assessment officer is reasonableness. See M.

Orkin, The Law of Costs , 2d ed. (Aurora Ontario: Canada Law Book,2006), at #603.4(1). The officer has the discretion to grant adjournments or to refuse such requests, and provided he acts judicially, and within the requirements of procedural fairness, the officer’s discretion should not be interfered with. Niagara Neighbourhood Housing Co-op. Inc. v Edward , {2006}O.J. No. 1984 (Div. Ct.). It is for the moving party to show a failure to act judicially, within the requirements of expeditious and fair justice. [ 4 ] The assessment officer did not refer to the adjournment request of Mr. Reichert in his report.

However, the transcript of the hearing reveals that, after a half day of the hearing and after a break for lunch, Mr. Reichert asked to adjourn the hearing. He said, “I think that I got the documents as I was sitting here, and I think the Court before is not of that procedure if I’m not entirely wrong.” (p. 50, transcript). Mr. Reichert went on to say that if the assessment officer ruled that he would not ignore the disputed documents, then he wanted an adjournment in order to “inform myself the way to make the case.” (p.53, transcript). [ 5 ] The assessment officer heard from both Mr. Reichert and Mr.

Gilmour on this request. He then gave reasons for refusing the request. The circumstances found by the assessment officer were: • that no such request and no assertion by Mr. Reichert was made at the start of the hearing when he knew of the documents and he had just been allowed time during the lunch hour to prepare himself if in fact he had not known of them before. • That, according to the evidence before the assessment officer, the documents referred to were available to him on a previous hearing date when Mr. Reichert did not appear although Ms.

Reichert did, that he was aware of them before the hearing, and the assessment officer accepted that evidence, saying he found “nothing new …here that he (Mr. Reichert) had not seen before.” (p.53-5, transcript) • there had been a prior adjournment of the hearing, it was now peremptory, and additional time was allowed of 1 hour at the commencement of the hearing which was called for 9:30 a.m. and did not start until 10:30 a.m. when no assertion was made of lack of notice by Mr. Reichert. • the document that Mr. Reichert then specifically objected to was known to Mr.

Reichert and indeed represented his position from the start of the hearing. In other words, nothing in it represented a surprise to Mr. Reichert and he was told that he would have his chance to present his own evidence. [ 6 ] The assessment officer stated: “And what you had indicated before was that you needed only about…. ten after twelve you indicated you only needed about 20 minutes which would have taken us to 12:30. At 12:30 then you indicated that you needed more time and that you were going to have a couple

more questions after lunch and then we come back and now…the scenario has changed. I’m suggesting to you, it has not.”(p.58,transcript). [ 7 ] No allegation was made before me that Mr. Reichert was in any way foreclosed from making his case or that he did not know the case he had to make. [ 8 ] I find that the assessment officer’s decision was made on reasonable grounds and I have no ground to interfere with the exercise of his discretion to make the decision he did. It appears from the record that Mr.

Reichert was not taken by surprise but simply wanted more time to prepare in the face of a peremptory order that both sides were to be prepared that day to proceed.

For these reasons, the motion is dismissed. [ 9 ] Counsel not being prepared to deal with the issues such as standard of review other than to say the motion was out of time, which it was not due to the failure of the responding party to comply with the rules, despite which the responding party was nevertheless successful, and the moving parties having not bothered to have a full record before this Court, a condition corrected by the Court ordering the transcript, in all the circumstances there will be no order as to costs. HOWDEN, J. Date: December 30, 2010