Guest Blogger:Antonin Pribetic
Sometimes it pays to not take what you read on the Internet at face value. While there are significant benefits in making legislation and court decisions freely available to the general public through government websites such as e-Laws: http://www.e-laws.gov.on.ca/navigation?file=home&lang=en and CanLII: http://www.canlii.org/en/, sometimes the Provincial Legislature does not keep up with judicial decisions which effectively repeal or modify provincial statutes.
A good illustration is the 2007 Court of Appeal for Ontario decision in Guillemette v. Doucet 2007 ONCA 743 (CanLII),http://www.canlii.org/en/on/onca/doc/2007/2007onca743/2007onca743.html (2007), 88 O.R. (3d) 90 (Ont.C.A.), a case involving the assessment of a solicitor’s account under the Solicitors Act, R.S.O. 1990, c. S.15 http://www.canlii.org/on/laws/sta/s-15/and the impact of the Limitations Act, 2002 S.O. 2002, c. 24, Sch. B. http://www.canlii.org/en/on/laws/stat/so-2002-c-24-sch-b/latest/so-2002-c-24-sch-b.html
If you read the current version of sub-section 3(b) of the Ontario Solicitors Act, it still provides that a client has one (1) month from the delivery of a solicitor’s bill to obtain an order for assessment on requisition. Furthermore, section 4 still reads that a client cannot refer an account for assessment more than 12 months after the account was delivered, “except under special circumstances to be proved to the satisfaction of the court”.
In Guillemette v. Doucet, the appeal addressed the applicability of the two-year limitation period set out in s. 4 of the Limitations Act, 2002, to an application for an order directing the assessment of a solicitor’s accounts brought pursuant to s. 4 of the Solicitors Act. The appellant, Peter J. Doucet (“Doucet”), a lawyer, argued that s. 4 of the Limitations Act, 2002 applied and that the application brought by his former client, Laureine Guillemette (“Guillemette”) was out of time.
The client applied to assess the solicitor’s accounts more than 33 months after the last account was paid in June of 2003. However, the application judge allowed the account to be referred for assessment based on the special circumstances exception contained in s. 4.
After noting that any limitation periods in the Solicitors Act no longer applied by virtue of s. 19 of the new Limitations Act, 2002, Doherty J.A. explained the effect of s. 20 of the Limitations Act, 2002 at paras. 25-33 as follows:
“Section 20 retains in force any “extension, suspension or other variation” of a limitation period found in another statute even if the limitation period in that statute is itself no longer applicable to the claim by virtue of s. 19(1) of the Limitations Act. …
Section 20 of the Limitations Act places a further qualification on the application of the limitations periods set out in the Act. Section 20 provides that nothing in the Limitations Act will affect a provision in another act which extends, suspends or otherwise varies the limitation period found in another Act. Section 20 recognizes that individual statutes may provide for situations or conditions in which the limitation provisions in those statutes should be extended or modified. Those provisions may well be particularly apt for the limitation period addressed in that specific statute. The Limitations Act does not seek to standardize the circumstances in which limitation periods can be extended, suspended or otherwise varied by statute.
I think the “special circumstance” qualifier in s. 4 of the Solicitors Act falls within s. 20 of the Limitations Act. The twelve month time period in s. 4 has repeatedly been described as a limitation period: see e.g. Enterprise Rent-a-Car Co. v. Shapiro, Andrews, Finlayson [1998 CanLII 1043 (ON C.A.), (1998), 38 O.R. (3d) 257 (C.A.)] at 260-61. Where “special circumstances” exist, the court will order an assessment beyond twelve months after delivery of the account, thereby effectively extending, suspending or otherwise varying the twelve month time limit set out in s. 4.
Consequently, while by virtue of s. 19 of the Limitations Act, the two year limitation period in that Act trumps the twelve month limitation period in s. 4, s. 20 of the Limitations Act preserves the “special circumstances” exception set out in s. 4 of the Solicitors Act.”
Applying the facts at hand, Guillemette had to show special circumstances before an assessment could be ordered because she was seeking to assess an account that had been previously paid (section 11 of the Solicitors Act) as she was seeking an assessment more than two years after the delivery of the accounts: Limitations Act, 2002, s. 4; Solicitors Act, s. 4.
Although the Court of Appeal acknowledged that a lengthy passage of time after a bill has been paid, will be a significant consideration in exercising the “special circumstances” discretion in both ss. 4 and 11 of the Solicitors Act, “[t]ime alone will not, however, preclude the examination of the suitability of a lawyer’s accounts where other circumstances compel a review of those accounts.” [at ¶ 36]
In addition, were it necessary to do so, Doherty, J.A. would have held that under the terms of the transitional provisions in s. 24(5) of the Limitations Act, 2002, the limitation period in the Solicitors Act applied since Guillemette’s claim was discovered by her prior to January 1, 2004. Hence, the claim was not time barred under that statute.
Why is the Guillemette v. Doucet case so important to Ontario litigants and to Ontario lawyers?
In the learned justice’s own words,
“…there is no absolute time bar against applications for the assessment of lawyers’ accounts. [While] this result may seem inconsistent with the purpose underlying the Limitations Act… solicitors’ accounts have always been treated differently than other debts and even other professional accounts. A superior court has an inherent jurisdiction to review lawyers’ accounts entirely apart from any statutory authority. That inherent jurisdiction was not subject to a time limit. My interpretation of the two Acts preserves that status quo: see Rooney et al. v. Jasinski,  O.R. 869 at 875 (C.A.); Plazavest Financial Corp. v. National Bank of Canada et al., supra paras. 14-16.” [at ¶ 35, emphasis added]
Antonin I. Pribetic, B.A. (Hons.), LL.B., LL.M., MCIArb.
Steinberg Morton Hope & Israel LLP