Law Times

Law Times • augusT 6, 2018 Page 3 www.lawtimesnews.com 'A person in her 90's has rights' Judge cuts legal bill for 92-year-old client BY ANITA BALAKRISHNAN Law Times A n Ontario judge de- cided that a lawyer must refund more than $160,000 to his 92-year-old client and pay costs of more than $48,000, after the lawyer was unable to demon- strate the criteria behind his fees, according to a Superior Court of Justice decision. In the decision, Newell v. Sax, 2018 ONSC 4517, Justice Edward Morgan ruled that law- yer Lawrence Sax, of Sax Law- yers in Toronto, had originally billed $165,000, plus disburse- ments and HST, for just less than 75 hours of docketed time to help Eileen Newell sell an invest- ment property in 2014. "The Respondent [Lawrence Sax] in his testimony at one point stated that his rate was $650/hr and at another point state that it was $850/hr. . . . his overall fee came to something far more ex- orbitant than that. None of the Respondent's figures are cred- ible; he was obviously making it all up as he went along," said the ruling. "In his account dated Decem- ber 31, 2014, [Sax] charged total fees of $165,000 for what he esti- mated to be just under 75 hours of docketed time — the Respondent had no actual time dockets on which to rely, but rather testified that he had estimated and recre- ated his dockets for the purposes of the assessment hearing. In any case, taking the Respondent's own estimation of time serious- ly, his 75 hours of billable time works out to a rate of $2,220.00 per hour," added Morgan. Sax testified that he never ex- plained the bill to Newell and that he did not keep time dockets at the time of Newell's transaction but recreated them for the assess- ment hearing, the decision said. But Morgan's criticism in the rul- ing extended much further than Sax, with harsh words for a prov- incial assessment officer who he said displayed "inexplicable ani- mus" toward Newell in the 2017 assessment hearing reasons. Newell, who was 92 years old at the time Morgan wrote the decision, did not personally at- tend the assessment hearing to dispute the fees for Sax's work and retained counsel to attend on her behalf, the decision says. "At one point in her reasons, the Assessment Officer went so far as to admonish the Appli- cant's counsel for not submitting a doctor's note on the Applicant's behalf. In doing so, she effective- ly treated the Applicant like a child in school whose teacher is skeptical that she really stayed home with a cold," said Morgan. There is no obligation on a client to testify at a solici- tor-client assessment, according to Morgan's decision. "A person in her 90's has rights, just like a more robust person, even if she does not make the kind of personal ap- pearances that she might have done at an earlier age," Morgan said in the decision. "To assume . . . that she somehow attaches minimal importance to a pro- ceeding by hiring a lawyer and having him appear in her place, is to display a blindness for the human condition." Morgan wrote in the decision that the assessment officer's de- cision "undermined due pro- cess of law" and calculated that a more appropriate bill would total $26,375. Morgan decided to substitute his own determination rather than send the case to an assess- ment officer for re-hearing. The assessment officer found in an assessment hearing that happened in 2017 that Sax, who is in his 80s and was called to the bar in 1957, had erred when he transferred money out of New- ell's trust account to pay his fees prior to billing Newell in the assessment hearing decisions and reasons, filed as CV-15- 00521793-000. "A lawyer has a duty to be able to explain, first to his client and then to the court, the basis upon which he has charged the client," says Robert Tanner, of Tanner & Guiney Associates, who repre- sented Newell at the assessment hearing and in the Superior Court of Justice case. Tanner provided a copy of the assess- ment hearing decisions signed by assessment officer Angelique Palmer and confirmed she pre- sided over the hearing. Palmer decided that Sax's fees should be cut by 20 per cent, with a 1.3-per-cent interest rate, in the assessment hearing de- cisions and reasons. However, Morgan's decision indicates that Palmer made some errors in her assessment, Tanner says. Robert Schipper, a sole prac- titioner in Toronto, who was not involved in the case, says solici- tors should always have a retain- er agreement in every file to let clients know what the fees are going to be as the file progresses. "I know lots of lawyers say it's hard to estimate the time, because so much happens over the course of the file that you can't always anticipate. But the estimate doesn't have to be to the penny, it can be a range," he says. "And, if circumstances come up where the original estimate has to change, you tell the client that." Ed Upenieks, a Brampton litigation lawyer at Lawrence Lawrence Stevenson LLP, who was not involved in the case, says lawyers should keep contempor- aneous records. David Sloan, senior litigation associate at Rochon Genova LLP in Toronto, who represented Sax, says it would be inappro- priate to comment on the case as Sax plans to appeal. LT NEWS Expanding capabilities to the Canadian legal market with Epiq acquires Crawford Class Action Services and Bruneau Group — offering unmatched expertise through major markets across Canada: • Class action settlements • Data breach response • Government and regulatory remediation matters • National and international legal notice programs Learn more at epiqglobal.com Business Process Solutions | Class Action & Mass Tort | Court Reporting | eDiscovery | Regulatory & Compliance | Restructuring & Bankruptcy People. Partnership. Performance. Untitled-6 1 2018-08-01 3:56 PM Robert Tanner says lawyers must be able to explain their fees to clients and the court.

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