Case Summaries

What Not to Plead: Groia v. Cardillo, A Guide as to What the Courts Should and Should Not Consider During Assessments

May 14, 2021 - Geneviève Therrien

When a lawyer’s fees remain unpaid by a client, or when a client is unhappy with his or her lawyer’s bill, the Solicitors Act, R.S.O. 1990, c. S. 15 provides for a simple process: assessment.[1] Assessment officers will consider a range of factors to ascertain whether a solicitor’s fees are reasonable in the circumstances. The decision in Groia v. Cardillo[2] provides useful guidelines, not only as to the factors the assessment officer should consider, but also those they should not.

At paragraph 12, the Court lists the following factors that have in the past been considered when assessing a solicitor’s account:

• The amount of time expended by the lawyer;
• The legal complexity of the matters in issue;
• The degree of responsibility assumed by the solicitor;
• The monetary value of the matter;
• The importance of the matter to the client;
• The degree of skill and competence demonstrated by the solicitor;
• The results in the matter;  
• The client’s ability to pay; and
• The client’s expectations as to the amount of the fees.[3]

It is important to note that the onus to prove that the fees were fair and reasonable based on these factors rests on the solicitor who requested the assessment.[4]

When conducting its analysis, the Court placed some importance on other facts, in addition to these factors, which weighed in favour of declaring that the billed fees were fair and reasonable. Though some comments could be considered as falling within the ambit of the above-mentioned factors – such as keeping the client up to date on the work done and the fees incurred,[5] which goes to managing the client’s expectation of the costs – others are new.

The Court noted no fewer than three times in this relatively short decision that it was reasonable, appropriate and cost effective to have junior counsel, billing at a lower hourly rate, do the day-to-day work on a file under a senior lawyer’s supervision.[6] The Court also referenced the division of work between members of a firm and the principle of indemnity, which are not included in the list of recognised factors listed above. The fact that the work was done on an urgent basis is also mentioned as justifying the reasonableness of the fees billed.[7] Finally, the Court mentions briefly in its conclusion that the firm gave the client a discount on the invoice as a courtesy.[8] This simple show of good faith further supported the fees’ reasonableness in the circumstances.  

Apart from hinting at new factors the assessment officer should consider, Groia v. Cardillo clarifies what the assessment officer ought not to consider. The assessment officer should not consider what happened in the proceedings after the retainer has ended.[9] The assessment officer should likewise avoid opining on whether the legal advice given to the client by counsel was the best advice in the circumstances.[10] In other words, it is therefore not the assessment officer’s task to second guess the decisions taken by the lawyer.[11]

Groia v. Cardillo is a useful guide for any lawyer faced with an assessment of his or her fees. The decision is also useful to the former client who initiated the assessment and any counsel acting for them in the assessment proceeding.

[1] Solicitors Act, R.S.O. 1990, c. S. 15, s. 3(c).

[2] 2018 ONSC 5776.

[3] Ibid at para 12, citing Cohen v. Kealy and Blaney (1985), 10 O.A.C. 344 (C.A.) at para 11.

[4] Ibid at para 13.

[5] Ibid at para 25-26 and 32.

[6] Ibid at para 18, 23 and 29.

[7] Ibid at para 34, 36 and 43.

[8] Ibid at para 46.

[9] Ibid at para 31.

[10] Ibid at para 28.

[11] Ibid at para 39.