Executive Summary: Key Legal and Evidentiary Issues

• Nine-year delay in prosecuting the Notice of Review was found to be inordinate under the Giacomini test for dismissal for want of prosecution

• Mr. Wenn's claim of disability lacked sufficient medical evidence to establish an impairment that prevented him from advancing his case

• The Cameron Order requiring mutually convenient hearing dates and a pre-hearing conference was never fulfilled by the claimant

• Mr. Leibovitz's scheduling requests and proposals were deemed reasonable, negating claims that he obstructed the proceedings

• No explanation was provided for the eight-year period of complete inaction between April 2013 and April 2021

• Public confidence in the justice system and timely resolution of disputes weighed against allowing the matter to proceed

The dispute and its origins

Kerry Wenn retained lawyer Yair S. Leibovitz in December 2011 to appeal a Provincial Court family proceeding decision concerning parenting time issues with his ex-spouse. Mr. Leibovitz advised that the appeal would cost upwards of $30,000 in fees plus taxes and disbursements. The appeal proceeded over two days in April 2012 and was ultimately dismissed by Justice Myers on April 4, 2012. The total amount billed under four statements of account came to $38,701.78.

Filing the Notice of Review and early scheduling difficulties

On July 6, 2012, Mr. Wenn filed a Notice of Review seeking to have Mr. Leibovitz's legal bill reviewed by the Supreme Court Registrar. However, Mr. Wenn set the initial hearing date without consulting Mr. Leibovitz's availability. When Mr. Leibovitz indicated he was unavailable, a series of communications ensued regarding rescheduling. The parties eventually appeared before Master Cameron on October 4, 2012, who issued an order requiring the review hearing to be reset for two full days at mutually convenient dates, with a pre-hearing conference scheduled at least 21 days prior to the review hearing.

Failed attempts to reschedule

Following the Cameron Order, Mr. Leibovitz proposed that the Wenns provide a list of dates that worked for both Mr. Wenn and his brother Trygve, after which Mr. Leibovitz's assistant would check their list against Mr. Leibovitz's calendar and set the hearing down. Mr. Leibovitz explained he was not prepared to hold dates open in his calendar for longer than 24 hours. Despite repeated requests and letters through April 2013, no list was provided. Mr. Leibovitz received no communications from Mr. Wenn or Trygve in the period from April 15, 2013, through April 22, 2021.

The Dismissal Application

Mr. Leibovitz filed the Dismissal Application on April 22, 2021, citing want of prosecution. He attested that he was closing his law practice at the end of May 2021 due to health problems, including increasing issues with his memory, which made it difficult to recollect the nuances of his representation of Mr. Wenn during 2011-2012. Mr. Wenn opposed the application, claiming he was "disabled and medically unable to previously proceed."

The claim of disability

Mr. Wenn's evidence regarding his disability consisted primarily of a January 24, 2010 physician's letter describing problems with focus and concentration due to head and neck injuries suffered in a car accident, and a December 23, 2019 Canada Revenue Agency notice confirming his eligibility for a disability tax credit. The Court found this evidence insufficient to establish that Mr. Wenn was incapable of pursuing his review during the relevant period. The physician's letter predated the filing of the Notice of Review by over two years and merely indicated Mr. Wenn was 2-3 months away from any attempt at a return to work, not that he was incapable of conducting legal proceedings. The letter confirmed that Mr. Wenn was capable of the activities of daily living.

The legal test applied

The Court applied the revised framework from Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, which requires consideration of three questions: whether the delay was inordinate, whether it was inexcusable, and whether the interests of justice favour allowing the action to proceed despite such delay. The interests of justice analysis considers factors including prejudice to the defendant, the length of delay, the stage of litigation, the impact on the defendant, the context of the delay, reasons for the delay, and whether there is public interest in allowing the action to proceed.

Ruling and outcome

Justice Tucker found the nine-year delay to be inordinate, particularly given that the Legal Profession Act normally requires a fee review to be filed no later than three months after the bill was paid or, if unpaid, within one year after it was sent to the client. The Court also found the delay inexcusable, concluding there was no evidence establishing disability as an excuse. Additionally, the Court determined that the interests of justice did not warrant allowing the review to proceed, noting Mr. Leibovitz would be prejudiced by failing memories and the possibility that the client file no longer exists, while no public interest would be served by hearing a routine fact-based assessment. The Dismissal Application was granted, and the Notice of Review filed July 6, 2012, seeking Registrar review of the respondent's legal bill, was dismissed for want of prosecution. The respondent is entitled to his costs in the proceeding. No specific amount for costs was determined or stated.