) ) NICHOLAS C. TIBOLLO PROFESSIONAL CORPORATION Solicitor (Respondent) – v. –, 2013 ONSC 2685

CITATION : Tibollo Professional Corporation v. Wasserman Associates and Uribe, 2013 ONSC 2685 DIVISIONAL COURT FILE NO.: 172/13 DATE: 20130507 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LEITCH, SACHS AND LEDERER JJ. BETWEEN: ) ) NICHOLAS C. TIBOLLO PROFESSIONAL CORPORATION Solicitor (Respondent) – and – WASSERMAN ASSOCIATES INC. and DIEGO URIBE Clients (Appellant) )) )) )) )) ))))) Lori Marzinotto , for the Respondent Peter-Paul E.

DuVernet , for the Appellant, Wasserman Associates Inc. ) ) ) HEARD at Toronto: May 7, 2013 SACHS J. (orally) [ 1 ] Wasserman Associates Inc. (“WAI”) appeals from the order of Goodman J. dated August 10, 2011 which varied the Report and Certificate of Assessment, issued by Assessment Officer Canning on May 28, 2010.

Goodman J. found that the Assessment Officer had exceeded his jurisdiction by holding that WAI was not a client of the Solicitors and therefore finding only Diego Uribe (“Uribe”) liable for the fees owed to the Solicitors relating to a particular account (“the Sanchez Account”). [ 2 ] Goodman J. thus varied the Assessment Officer’s order to make WAI and Uribe jointly and severally liable to the Solicitors for the fees as assessed by the Assessment Officer. [ 3 ] The issue on this appeal is whether Goodman J. erred in holding that the Assessment Officer had exceeded his jurisdiction when he found that WAI was not a client for the purpose of assessing fees relating to the Sanchez account.

It is clear that the assessment procedure under s. 3 of the Solicitor’s Act is only available where there is no bona fide dispute as to the retainer. If there is a dispute regarding the retainer, an assessment officer has no jurisdiction to determine that dispute. [ 4 ] The Appellant argues that Goodman J. erred in finding that the Assessment Officer determined a retainer issue. According to the Appellant, the Assessment Officer did not determine a retainer issue. Rather, he determined liability for fees based on an assessment of what services were provided to which of the two clients and for what value.

This determination is within the jurisdiction of an assessment officer. [ 5 ] We disagree. A review of the reasons of the Assessment Officer makes it clear that the Assessment Officer made a determination that there was no retainer of the solicitors by WAI. This is clear from the following excerpts from those reasons:

Page 6: The evidence is generally consistent with the creation of a solicitor and client relationship between Uribe and the Solicitors. Except as already noted, Wasserman and Wasserman Associates Inc. were not the clients of Nicholas or the Solicitors. Page 7: The onus falls upon the Solicitors to show that there was mutuality to the Solicitors’ understanding of the terms of the retainer. Page 8: The evidence is entirely consistent with a continuing solicitor and client relationship between Michael and Uribe. Page 11: The Solicitors once again identified their “Client” as Uribe.

And it was to Uribe that they wrote on December 12, 2005, with respect to their retainer and payment for their services. Page 14: From the proposal for Uribe’s consideration it is absolutely clear that the Solicitors regarded Uribe as their Client and Uribe as being responsible for their fees and disbursements. [ 6 ] From these excerpts, it is apparent that the primary focus of the Assessment Officer was to determine who was in fact the Solicitors’ client. This is a retainer issue.

It is only once this determination was made that the Assessment Officer went on to consider the matters within his jurisdiction, including the Cohen factors. Therefore, Goodman J. was correct when he found that the Assessment Officer exceeded his jurisdiction. [ 7 ] The Appellant also submits that Goodman J. erred when he varied the order of the Assessment Officer to provide for joint and several liability. The Appellant argues that Goodman J. should have referred the retainer issue to a judge for a determination. This submission ignores the fact that the parties had agreed to proceed by way of an assessment.

In doing so, counsel for WAI agreed that they would not dispute the retainer and that they, along with Uribe, were clients of the Solicitors and that they would be jointly and severally bound by the decision. [ 8 ] In effect, they consented to a finding of joint and several liability. The Court of Appeal has recently stated in Cookish v. Paul Lee Associates Professional Corp., 2013 ONCA 278 at para. 56 , that courts should set aside consent orders when it is necessary in the interests of justice to do so.

We have been presented with no reason that would cause us to find that Goodman J.’s disposition was contrary to the interests of justice. [ 9 ] For these reasons, the appeal is dismissed. COSTS LEITCH J. [ 10 ] I have endorsed the Appeal Book on behalf of the panel, “This appeal is dismissed for oral reasons given. Costs to the respondent fixed at $5,000 inclusive of HST and disbursements.” SACHS J. LEITCH J. LEDERER J. Date of Reasons for Judgment: May 7, 2013 Date of Release: May 9, 2013 CITATION : Tibollo Professional Corporation v. Wasserman Associates and Uribe, 2013 ONSC 2685

DIVISIONAL COURT FILE NO.: 172/13 DATE: 20130507 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LEITCH, SACHS AND LEDERER JJ. BETWEEN: NICHOLAS C. TIBOLLO PROFESSIONAL CORPORATION Solicitor (Respondent) – and – WASSERMAN ASSOCIATES INC. and DIEGO URIBE Clients (Appellant) ORAL REASONS FOR JUDGMENT SACHS J. Date of Reasons for Judgment: May 7, 2013 Date of Release: May 9, 2013