Second Chair Doesn’t Play Second Fiddle on Fees, Ontario Court of Appeal rules

The Court of Appeal for Ontario decision in Angela Assuras Professional Corporation v. Advocates LLP, 2011ONCA 84 provides two important lessons for trial lawyers: (1) playing second chair at trial doesn’t always mean playing second fiddle on fees; and (2) it’s hard to call all the shots when you’re sharing the barrister’s gown.

The appeal arose out of the retaining of the respondent by the appellant (who is herself a lawyer) to assist her at a trial. As the Court of Appeal laments: “It is a sorry story of neither ensuring a smooth working relationship. The question for this court is whether there is any basis to interfere with the decision appealed from.”

The Court of Appeal dismissed the appeal and held in part:

“[2]              The appellant argues that neither on assessment nor on appeal was there a proper appreciation of the subordinate role to be played by the respondent nor of the fact that it was to take place within a context of cost constraint.

[6]              The appellant also argues that too little attention was paid below to the fact that the respondent’s initial estimate of costs was some $50,000 and yet the accounts ultimately exceeded $150,000.

[7]              Again we disagree. The assessment officer was well aware of the initial estimate and of what transpired following. The appellant was told from time to time by the respondent of the cost of the work he was doing and that it was growing significantly beyond the original estimate. Yet she had him continue his work. Being a lawyer herself, she knew what was coming, and having received his previous bills, would have had some idea of what that would cost her. It is true that, for his part, the respondent should have provided her early on with a revised assessment of his ultimate costs. Clients should not be left without this information. However, in the circumstances of this case that failure cannot be said to have resulted in any real surprise to the appellant.

[8]              That leaves the question of whether, viewed overall, the accounts were unreasonable. This is an important element of an assessment that must go beyond a simple calculation depending on hours and rates. It requires a broad view of what was reasonably required of the lawyer given what was at stake. Here the assessment officer made such an assessment and found the accounts reasonable. Leitch J. found that this conclusion does not reflect an error in principle. There is no basis for this court to interfere with that conclusion.”

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