Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on unpaid legal fees and the validity of the retainer agreement between the parties.

• Procedural delays arose from the respondent’s failure to properly file and schedule her motion challenging the retainer.

• The respondent’s misunderstanding of court orders and procedural requirements contributed to the prolonged proceedings.

• The court considered whether the respondent’s motion should be deemed abandoned under Rule 37.09(2).

• Costs were assessed due to unnecessary motion proceedings caused by the respondent’s inaction.

• The amount of costs awarded was significantly reduced from what the applicant sought, reflecting proportionality and reasonableness.

Facts of the case

Blaney McMurtry LLP, the applicant law firm, initiated assessment proceedings against Yolanta Zawadzinski to resolve a dispute over unpaid legal fees. The process began on January 9, 2023, but was delayed when Zawadzinski indicated she would challenge the validity of the retainer agreement. The assessment officer adjourned the hearing and ordered Zawadzinski to serve and file any motion challenging the retainer by May 23, 2023. While she served a notice of motion and later an affidavit, she failed to file the motion with the court or book a hearing date, despite repeated reminders from the applicant. Instead, she viewed these reminders as harassment.

When the matter returned to the Assessment Office in September 2023, the hearing was adjourned indefinitely because the retainer dispute remained unresolved. The applicant, unable to proceed with the assessment for over two years due to these procedural delays, sought a court order declaring the respondent’s motion abandoned and requested that the assessment be scheduled promptly.

Procedural history and conduct of the parties

Zawadzinski offered several reasons for not booking her motion, including a belief that she was not required to do so, personal obligations, and a mistaken understanding that her actions were sufficient. The court found these explanations unpersuasive, noting that the initial endorsement clearly required her to serve and file her motion within a set timeframe. The respondent’s personal circumstances did not relieve her of the obligation to move her motion forward, especially as she had already prepared the necessary materials.

Despite her inaction, the court did not find that Zawadzinski intended to abandon her motion. Instead, as a self-represented litigant, she was given additional time—until November 21, 2025—to obtain a hearing date and serve the applicant with her motion record. She was required to rely solely on the materials prepared in 2023 and was not permitted to amend or supplement them. Failure to comply by the deadline would result in her motion being deemed abandoned and the court addressing the applicant’s costs.

Discussion of policy terms and relevant rules

The court’s decision referenced Rule 37.09(2), which states that a party who serves a notice of motion but does not file it or appear at the hearing is deemed to have abandoned the motion unless the court orders otherwise. The court exercised its discretion, considering the respondent’s self-represented status and lack of clear intent to abandon the motion, to grant a final opportunity to proceed.

Ruling and outcome

The court found Zawadzinski liable for the costs of the motion, as her failure to properly advance her motion and her refusal to heed procedural advice necessitated the applicant’s motion. While Blaney McMurtry LLP sought substantial indemnity costs totaling $36,866.47, the court determined this amount was excessive for a relatively straightforward motion. Instead, the court fixed costs at $12,000, payable by Zawadzinski to the applicant within 30 days. The successful party in this motion was Blaney McMurtry LLP, and the amount awarded in its favor was $12,000.