“The legislature has been able to devise effective processes to resolve disputes arising between a wide variety of licensed professionals and their clients in Ontario,” Monahan wrote in the decision. “It would appear timely for the relevant authorities and decision-makers to review the process for the assessment of solicitors’ accounts so as to ensure that a similarly fair, effective and expeditious dispute resolution process is in place.”
The case concerned an application brought by a client, Mark Linett, to assess the accounts of law firm Aird & Berlis LLP. After more than five years of delay, the firm brought a motion to have the assessment application dismissed.
Monahan found that the delay in the case was “inordinate” and that it had caused a substantial risk of “prejudice” to the law firm’s ability to prove the accounts. However, he said that the vast majority of the delay was attributable to the assessment officer rather than the parties themselves.
He dismissed the firm’s motion, allowing the assessment to continue. He said the case raises “serious questions about the fairness and effectiveness of the current process for assessing solicitors’ accounts in Ontario” and that there is a significant public interest in making sure this process is fair.
“Not only is this important for the administration of justice, as well as for solicitors and their clients, it is simply a matter of consumer protection,” he says.
Backlogs continue to plague the assessment office at the Superior Court in Toronto despite a commitment by Ontario Attorney General Yasir Naqvi almost two years ago to look into the issue to find solutions, say lawyers.
Andrew Rudyk, a spokesman for Naqvi, referred questions about the issue to the Ministry of the Attorney General, which did not provide comment before deadline.
Lawyers say the government has not done enough to alleviate delays, which are now even worse. Hearings are currently being scheduled for 2019 at the earliest.
“If you can’t get these backlogs cleared up and people wind up waiting and waiting for 18 months or whatever length of time it takes, it really sends the wrong message to the public [and] it hurts the administration of justice,” says Robert Schipper, a lawyer who represents parties in assessments. He was not involved in the Linett case.
There are currently four assessment officers in the Toronto assessment office, whereas there used to be nine years ago, Schipper says.
Exacerbating the problem, the volume of cases is increasing and the amount of money involved in accounts under assessment is significantly higher than it used to be.
This also means that hearings are much longer. They can sometimes last as long as 20 days, which ties up assessment officers in lengthy proceedings.
Schipper says the government has let delays fester in the assessment office in Toronto simply because it has not been a priority. He says that, over the years, lawyers and judges have asked the ministry to add more assessment officers and look into changing the process to make it more efficient.
He adds that the provincial government also needs to update the Solicitors Act, which contains provisions that lay out the assessment process. The act has been criticized as being archaic.
Linett, who is also a lawyer, first sought to have Aird & Berlis’ accounts assessed in early 2012. He first brought the application in the assessments office in St. Catharines, Ont., as he had heard that the one in Toronto was severely backlogged. The assessment was then delayed because of a series of cancellations, including one that was the result of there being no room available at the assessment office for a mediation.
The case has since been transferred to Toronto, where it has been scheduled for a hearing in 2019.
Tanya Pagliaroli, the lawyer who represented Linett in the matter, says Monahan’s ruling is the first reported decision in Ontario dealing with a dismissal for delay of a solicitor’s assessment.
She says the extreme delays really call into question the fairness and effectiveness of the process.
“It’s a real problem for the administration of justice, frankly,” she says. “When there is excessive delay in any part of the administration of justice . . . there is an appearance that justice is not being done and it’s not fair when clients and lawyers can’t have these disputes resolved quickly.”
She says the delays are mainly the result of a lack of resources and the fact that the process is outdated.
Monahan’s comments were not the first time a judge has criticized the backlogs in the assessment process. In a 2016 decision in Gilberts’ LLP v. David Dixon Inc., Ontario Superior Court Justice Sean Dunphy said delays to obtain a hearing are “unacceptably long.”
Then, in a 2017 decision in the same case, Justice Ian Nordheimer said that the assessment process is “outdated and impractical” and that MAG’s failure to properly resource the assessment office was compounding delays. Nordheimer also urged the provincial government to make amendments to the Solicitors Act.
At the time of Nordheimer’s decision, MAG said it was aware of the problem and exploring options to ensure matters are heard in an efficient manner.
Pagliaroli says the government will have to provide the assessment office with more resources in order for things to get any better. She says that as there will likely be an increasing number of challenges to accounts in the future, the system in Toronto is going to be overburdened with more assessments if the government does not step in.
“I think it can get worse and that’s not something that should be ignored,” she says.