Law Times

March 13, 2017

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Page 2 March 13, 2017 • Law TiMes Court decision in Elguindy v. St. Joseph's Health Care — a case that also originated in Small Claims Court — the court deter- mined that deputy judges in the lower court have no jurisdiction to make a production order of documents by a third party. The Divisional Court reject- ed the argument that such an or- der could be made in the Small Claims Court under R. 30.10 of the Rules of Civil Procedure. Fredrick Goodman, a para- legal who works in the Small Claims Court, says the Riddell decision opened the door a bit for pre-trial orders for discov- ery-type relief after the Elguin- dy decision. "It's really problematic that we have this inconsistency," he says. Goodman says he hopes the appeal will address the issue of what is known as the analogy rule, or Rule 1.03 of the Rules of the Small Claims Court. The rule holds that where the Small Claims Court rules "do not cover a matter ade- quately," the court can make an order referring to the Courts of Justice Act or the Rules of Civil Procedure. As the Rules of the Small Claims Court do not provide for a discovery process, the question becomes whether the Rules of Civil Procedure should be ap- plied. Goodman says deputy judges and litigants in the Small Claims Court struggle with the analogy rule every day. Farkas says he thinks it would not be a good idea to apply the rule too broadly in the Small Claims Court, where matters are supposed to be dealt with quickly. "I don't think from a policy perspective, I don't think it's a good idea to let judges have free range," he says. Toronto lawyer Jeffrey Silver says looking past the issues of jurisdiction and discovery rules, what was at stake in the Rid- dell decision were fundamental principles of fair justice. "It goes to levelling the play- ing field," he says. Monique Jilesen, the lawyer representing Apple Canada in Riddell, declined to comment as the case is pending before the Court of Appeal. LT NEWS Court for smaller amounts. Matthew Diskin, a partner with Gilbert's LLP, says the de- cision means lawyers will now be able to sue clients for unpaid accounts, as long as there is no quantum dispute. "If there is a quantum dis- pute and you're within the time frame for proceeding with an as- sessment, then you're stuck with that, but if there is no quantum dispute, it seemed to be quite silly to go through this lengthy protracted assessment process, which, of course, wasn't intend- ed to be that but became that," he says. The appeal concerned an order by an Ontario Superior Court judge that dismissed Gil- bert's LLP's application under s. 23 of the Solicitors Act. The firm had requested an order that the client pay for two unpaid retainers, but Justice Sean Dunphy tossed the appli- cation, saying the firm had to go through an assessment officer to retrieve the fees. Gilbert's LLP eventually re- ceived payment from the clients after the appeal was filed, but the Divisional Court felt the case was still important to hear, even if it was moot between the par- ties, because of "its importance to the profession generally." The provisions of the Solici- tors Act that deal with the as- sessment process date back to 1909, according to the decision. The act is based on English legislation and was implemented with little consideration of the differences of the court systems in England and Ontario, said Nordheimer. The judge noted that the language in the act has caused a lot of confusion within the bar as to what its remedies are for pursuing unpaid fees. Diskin says he hopes the de- cision will push MAG to take a look at some of the more confus- ing provisions of the act. "For whatever reason, the So- licitors Act just hasn't received legislative attention," he says. The Divisional Court found that a simple fee agreement does not fall within the scope of the act's provision that requires a dispute over fees come before an assess- ment officer. Nordheimer ruled that if the act's provisions actually required all fee arrangement disputes to come before an assessment offi- cer, it could eventually cause the collapse of the system. "Lawyers will be effectively precluded from collecting ac- counts, because the demands on the assessment process will cause such a backlog of assess- ments that the system will col- lapse," he wrote. In order to help with the back- logs, MAG hired two new assess- ment officers in the Toronto office in the fall. But David Sterns, presi- dent of the Ontario Bar Associa- tion, says more needs to be done to alleviate the problems at the assessment office, such as imple- menting electronic scheduling. "In Toronto, it's a disaster," he says. Emilie Smith, a spokes- woman for MAG, said that in addition to hiring new staff, the ministry has implemented new scheduling strategies in Toronto to help reduce the backlog and offer earlier hearing dates to parties whose dates had been scheduled. She added that a full-day assessment hearing can be booked in Toronto within a month and an appointment for a settlement of an order can be booked within a few days. "The Ministry is aware that many people find the current court-based process for resolv- ing disagreements about law- yers' bills complex and confus- ing," she said in an email. "We are aware of and will consider important issues raised in the recently released decision of the Divisional Court." LT Continued from page 1 Judge calls for modernization of Solicitors Act 'Big gap' in the rules on discovery Continued from page 1 CCLA Gala 2017 FEATURING: EDWARD SNOWDEN via live video 2017 HONOREES: KATHERINE GOVIER JIM BRONSKILL PATRICIA GAGIC BEN MAKUCH MARGIE WOLFE ROBERTA BONDAR CRAIG FORCESE KENT ROACH ROBERTO MARTELLA IRWIN COTLER SHELAGH DAY LINDA BERTOLDI FRANCES WAITHE MARY SPENCER LISA BORSOOK DENNIS EDNEY YAVAR HAMEED BILL BOGART JASMINE AKBARALI URSULA FRANKLIN MEDIA SPONSOR APRIL 27, 2017 THE EGLINTON GRAND, TORONTO TICKETS AND INFORMATION: GALA.CCLA.ORG Join us to celebrate remarkable Canadian human rights and civil liberties activists from all walks of life Untitled-2 1 2017-02-21 9:56 AM

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