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Civil Litigation

Cooperation at the assessment office pays off in court

Parties who showed a willingness to co-operate with the overloaded assessment office were rewarded in two recent decisions, says Toronto civil litigation lawyer Kevin Fisher.

Fisher, a partner with Gardiner Roberts LLP, acted for his former law firm, the successful appellant in a case involving a client who failed to show up for a week-long hearing over a disputed bill that had been scheduled more than a year in advance.

According to the appeal court judgment, a miscommunication led the client’s lawyer to believe the hearing was not proceeding as planned, and neither the client nor her counsel appeared for the first day of the hearing.

After attempting to reach them, the assessment officer went ahead anyway. On the second day, the client’s lawyer appeared but refused to discuss any accommodation for the cross-examination of witnesses who had already appeared, insisting instead that the matter had to be adjourned.

When the officer refused, the lawyer left, and the hearing was completed without the client’s or her lawyer’s participation.

The client later appealed the officer’s approval of the account, and a motion judge ruled she had been denied procedural fairness when her request for an adjournment was refused.

However, the appeal court reversed that decision, finding that the officer acknowledged the miscommunication, and was open to suggestions about how to proceed in light of it.   

“In our view, the assessment officer quite properly based her decision to refuse an adjournment on her overall consideration of the conduct of both parties, of the inconvenience and cost of a further delay in the assessment, and of the steps that could have been taken to relieve any procedural unfairness to the respondent,” the unanimous three-judge panel wrote in their decision.

“Our argument was that both sides were affected by the error, so there needed to be some level of co-operation,” Fisher tells AdvocateDaily.com. “Thankfully, the Court of Appeal agreed.”

He says the situation at Ontario’s assessment office intensified the need for some sort of compromise. The parties had already waited two years from the initiation of the assessment to get a hearing and faced the prospect of another two-year delay if the adjournment was granted.

“The office has such a huge backlog, that it is very overwhelmed. Many legal advocacy groups are trying to do something about it,” Fisher says.

In another recent Divisional Court case, a lawyer saw his bill cut from more than $1 million to $325,000, backing an assessment officer’s conclusion that he had failed to co-operate with the assessment.

The decision says the lawyer failed to provide his dockets despite repeated requests, but then successfully challenged the assessment officer’s decision when a motion judge ruled his former client had failed to meet the evidentiary burden during the assessment process.

However, the Divisional Court restored the officer’s decision, ruling that the motion judge made an error of law.

“In the circumstances of this case, where the solicitor called no evidence at all, the motion judge effectively reversed the onus by holding that the client had a burden to meet,” Justice Jamie Trimble wrote for a unanimous three-judge panel.

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