What are my options if I am dissatisfied with the outcome of the Assessment Hearing?
The remedies are plenty.
Remedy #1.
First of all, you have 7 days to ask the Assessment Officer to withhold the Certificate of Assessment and serve your objections. You can set out your grounds for the objections. Then the Assessment Officer will reconsider the Assessment in view of the objections and complete the Certificate of Assessment.
Rule 58.10 (1) states:
58.10 (1): On request, the assessment officer shall withhold the certificate for seven days or such other time as he or she directs, in order to allow a party who is dissatisfied with the decision of the assessment officer to serve objections on every other interested party and file them with the assessment officer, specifying concisely the grounds for the objections.
(2) A party on whom objections have been served may, within seven days after service or such other time as the assessment officer directs, serve a reply to the objections on every other interested party and file it with the assessment officer.
(3) The assessment officer shall then reconsider and review the assessment in view of the objections and reply and may receive further evidence in respect of the objections, and the assessment officer shall decide on the objections and complete the certificate accordingly.
(4) The assessment officer may, and if requested shall, state in writing the reasons for his or her decision on the objections.
Remedy #2.
You can also bring a motion before a Judge within 15 days to oppose confirmation of the Report and Certificate of Assessment and ask the Judge for an order varying the Certificate of Assessment or for the case to be sent back to a different Assessment Officer for new Assessment Hearing.
You could argue that the Assessment Officer erred in principle and denied you a fair hearing and natural justice by, for example:
- by misapprehending the facts;
- by making palpable and overriding errors;
- by disregarding or dismissing your oral or documentary evidence;
- by finding that the fees that you were charged were reasonable;
- by finding that the fees that you were charged reflect a fair value;
- by placing the burden of proof on you to disprove the lawyer’s accounts;
- by not requiring all timekeepers who did work to testify and prove the accounts;
- by misapplying the factors listed in the leading case of Cohen v. Kealey (1985).
Rule 54.09 states:
54.09 (1) Where the order directing a reference does not require the referee to report back, the report or an interim report on the reference is confirmed,
(a) immediately on the filing of the consent of every party who appeared on the reference; or
(b) on the expiration of fifteen days after a copy, with proof of service on every party who appeared on the reference, has been filed in the office in which the proceeding was commenced, unless a notice of motion to oppose confirmation of a report is served within that time.
To Whom Motion to Oppose Confirmation Made
(2) A motion to oppose confirmation of a report shall be made to a judge other than the one who conducted the reference.
Notice of Motion to Oppose Confirmation
(3) A notice of motion to oppose confirmation of a report shall,
(a) set out the grounds for opposing confirmation;
(b) be served within fifteen days after a copy of the report, with proof of service on every party who appeared on the reference, has been filed in the office in which the proceeding was commenced; and
(c) name the first available hearing date that is at least three days after service of the notice of motion.
Motion for Immediate Confirmation
(4) A party who seeks confirmation before the expiration of the fifteen-day period prescribed in subrule (1) may make a motion to a judge for confirmation.
Disposition of Motion
(5) A judge hearing a motion under subrule (2) or (4) may require the referee to give reasons for his or her findings and conclusions and may confirm the report in whole or in part or make such other order as is just.
Remedy #3
You also have 7 days to serve and file a Notice of Appeal.
Rules 58.11 and 62.01 state:
58.11: The time for and the procedure on an appeal under clause 6 (1) (c) or 17 (b) or subsection 90 (4) of the Courts of Justice Act from a certificate of an assessment officer on an issue in respect of which an objection was served is governed by rule 62.01.
62.01 (1) Subrules (2) to (10) apply to an appeal that is made to a judge,
(a) from an interlocutory order referred to in clause 17 (a) of the Courts of Justice Act;
(b) from a certificate of assessment of costs, under clause 6 (1) (c) or 17 (b) or subsection 90 (4) of that Act; or
(c) under any other statute, unless the statute or a rule provides for another procedure.
Time For Appeal
(2) An appeal shall be commenced by serving a notice of appeal (Form 62A) on all parties whose interests may be affected by the appeal, within seven days after the making of the order or certificate appealed from.
Hearing Date
(3) The notice of appeal shall name the first available hearing date that is not less than seven days after the date of service of the notice of appeal, and rule 37.05 (hearing date for motions) applies, with necessary modifications.
Notice of Appeal
(4) The notice of appeal (Form 62A) shall state the relief sought and the grounds of appeal, and no grounds other than those stated in the notice may be relied on at the hearing, except with leave of the judge hearing the appeal.
(5) The notice of appeal shall be filed in the court office where the appeal is to be heard, with proof of service, not later than seven days before the hearing date.
Place of Hearing
(6) The appeal shall be heard at a place determined in accordance with rule 37.03 (where motions to be brought).
Appeal Record
(7) The appellant shall, not later than seven days before the hearing, serve on every other party and file, with proof of service, in the court office where the appeal is to be heard, an appeal record containing, in consecutively numbered pages arranged in the following order,
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;
(b) a copy of the notice of appeal;
(c) a copy of the order or certificate appealed from, as issued and entered, and the reasons, if any, as well as a further typed or printed copy of the reasons if they are handwritten; and
(d) such other material that was before the judge or officer appealed from as is necessary for the hearing of the appeal,
and a factum that meets the requirements of rule 4.06.1.
(8) The respondent shall serve on every other party, at least four days before the hearing,
(a) a factum that meets the requirements of rule 4.06.1; and
(b) any further material that was before the judge or officer appealed from and is necessary for the hearing of the appeal.
(8.1) The respondent’s factum, and any further material, shall be filed with proof of service in the court office where the appeal is to be heard, at least four days before the hearing.
(9) A judge may dispense with compliance with subrules (7) and (8), in whole or in part, before or at the hearing of the appeal.
Abandoned Appeals
(10) Rule 61.14 applies, with necessary modifications, to the abandonment of an appeal under this rule.
But be careful.
At every stage of a court case, the Assessment Officer or Judge can order you to pay costs if you are unsuccessful.