Executive Summary: Key Legal and Evidentiary Issues

• Law firm’s solicitor’s lien over the probate file was vacated in favour of security paid into trust, pending assessment of the firm’s account.
• Assessment Officer twice found the law firm’s work on the probate matter “was useless to the client” and reduced the account to $Nil, with a costs award in favour of the client.
• Core dispute turned on whether the law firm could rely on its earlier motion (already granted and spent) to attack the superseding assessment report.
• Court applied the 40 Park Lane Circle v Aiello factors to decide whether to extend time for the law firm’s late appeal of the Superseding Report and Certificate of Assessment.
• Prejudice, modest quantum, and the absence of prior judicial review of the account (beyond the Assessment Officer) supported granting a short extension of time on strict terms.
• Law firm was required to return the $17,168.68 trust funds (to be held in trust by the client’s counsel) and pay fixed motion costs to the client, while being given a final opportunity to advance its appeal of the assessment.

Factual background

In March 2023, the applicant, Karim Jina, acting as trustee for the estate of his father, the late Dr. Abdul Jina, retained the respondent law firm, Halliwill Seguin LLP, to prepare and proceed with a probate application for the estate. The solicitor–client relationship later broke down and the retainer was terminated. The law firm then rendered an account in the amount of $17,168.68 for its work and asserted a solicitor’s lien over the probate file, effectively holding onto the file as security for its unpaid fees. To regain control of the estate file, the applicant brought a motion addressing the lien and the fees. On February 20, 2024, Justice Chalmers ordered that the solicitor’s lien be vacated upon payment of $17,168.68 to the respondent law firm, to be held in trust and not released until the assessment of the bill was completed, further order of the court, or consent of the parties. The funds were duly paid into trust on that basis. The law firm’s account was then taken to assessment. On August 16, 2024, an assessment hearing was held before Assessment Officer Michael Boehm, with both sides participating. In reasons released on November 20, 2024, the Assessment Officer concluded that the law firm’s work on the probate matter “was useless to the client” and assessed the account at “$Nil.” Costs of the assessment were also awarded against the law firm in favour of the applicant in the amount of $10,622, as reflected in a Superseding Report and Certificate of Assessment dated May 29, 2025.

Procedural history and motions

The respondent law firm objected to the Assessment Officer’s initial decision by serving a Notice of Motion dated January 14, 2025, seeking to set aside the Assessment Officer’s Report and Certificate of Assessment. That motion was unopposed and led to an order by Justice Glustein on February 28, 2025, setting aside the original Report and Certificate of Assessment and granting leave for the law firm to serve formal objections, for the applicant to reply, and for the Assessment Officer to reconsider his decision. Following reconsideration, the Assessment Officer issued a further decision on April 7, 2025. Despite the reconsideration, no changes were made to the earlier conclusion, and the Superseding Report and Certificate of Assessment dated May 29, 2025 again fixed the assessment at $Nil and awarded $10,622 in costs against the law firm in favour of the applicant. Under Rule 54.09(3), the law firm had 15 days after the superseding certificate to bring any further objection or appeal. On June 18, 2025, after that 15-day period had expired, counsel for the applicant wrote to the respondent law firm demanding payment of the funds now owing under the assessment outcome. When no response was forthcoming, counsel followed up on June 24, 2025, again without reply. In the absence of payment or engagement, the applicant then served a Notice of Motion dated June 30, 2025, returnable July 16, 2025, seeking repayment of the $17,168.68 held in trust. Only on July 11, 2025—after receiving the applicant’s motion materials—did the respondent law firm respond, asserting that its earlier January 14, 2025 Notice of Motion remained operative and that it was relying on that step, which had led to Justice Glustein’s February 28, 2025 order. These competing positions ultimately led to the motions coming before Justice Dow. The law firm, in effect, sought confirmation that its earlier motion was still “alive” in relation to the Superseding Report and Certificate of Assessment, or, in the alternative, leave to proceed with a late appeal of the superseding assessment under Rule 54.09. The applicant, for his part, sought repayment of the $17,168.68 plus interest and substantial indemnity costs, on the footing that the assessment process was complete and the law firm was now bound by the $Nil result and associated costs order.

Legal framework and issues before the court

There was no discussion of insurance policy terms or specific contractual clauses in this decision; the dispute focused instead on solicitor–client accounts, assessment procedure and timing, and the treatment of trust funds paid in as security for fees pending assessment. The first legal issue was whether the respondent law firm could continue to rely on its January 14, 2025 Notice of Motion, already determined by Justice Glustein, as a basis to challenge the Superseding Report and Certificate of Assessment. Justice Dow rejected this position. He held that the January 14 motion, and the February 28, 2025 order setting aside the original Assessment Officer’s report, fully disposed of the relief sought in that earlier motion. That order expressly set aside the original report and certificate “without prejudice” to the Assessment Officer’s ability to re-issue a further report in his discretion, which is precisely what occurred when the Superseding Report issued. Once the superseding report was released, any further challenge had to proceed by way of a fresh objection or appeal within the prescribed 15-day period, not by relying on an exhausted prior motion. Having found that the earlier motion could not serve as a continuing vehicle for challenging the superseding report, the second key issue was whether the court should grant the law firm an extension of time to bring a late appeal or objection to the Superseding Report and Certificate of Assessment. Justice Dow relied on the factors set out by the Ontario Court of Appeal in 40 Park Lane Circle v Aiello, including: (a) whether the proposed appellant had a bona fide intention to appeal within the prescribed period; (b) the length of and explanation for the delay; (c) any prejudice to the respondent if an extension is granted; (d) the merits of the proposed appeal; and (e) whether the justice of the case requires an extension.

Application of the extension of time factors

On the question of bona fide intention to appeal, the court found that the law firm had not provided evidence of any concrete steps within the 15-day period after May 29, 2025, such as drafts, instructions, or communications evidencing a plan to file a new objection or appeal to the Superseding Report and Certificate of Assessment. On that factor alone, the request for an extension would have failed. Regarding the length and explanation of the delay, the law firm first clearly articulated its intention to appeal on July 11, 2025, less than 30 days after the expiry of the 15-day deadline. However, Justice Dow noted the absence of any explanation for the failure to respond to the applicant’s June 18 and June 24 letters, which sought payment in light of the assessment. The unexplained silence until after the applicant had filed his own enforcement motion weighed against the indulgence sought. On prejudice, the applicant pointed to the delays in repatriating the funds and the additional legal costs incurred. Justice Dow concluded that, while real, this prejudice could be addressed by tailored terms—particularly a direction as to how the $17,168.68 would be held and an award of motion costs—rather than by an outright refusal of any extension. As to merits, the applicant argued that the proposed appeal had no reasonable prospect of success because of the Assessment Officer’s factual findings and the deference typically owed to them. Justice Dow emphasized that depriving a party of its right to appeal should only occur where there is “so little merit” that such a right should effectively be extinguished. Given that the account had only ever been scrutinized by the Assessment Officer and had not yet been reviewed by a judge on its substantive merits, and that the Assessment Officer had reduced the account to $Nil, the court held that this factor favoured allowing an appeal to proceed. Finally, under the “justice of the case” factor, the applicant relied on the relatively modest amount in dispute. Justice Dow noted that this argument was undercut by the same affidavit’s acknowledgement that the applicant was prepared to go to “significant trouble to recover funds,” indicating the importance of the dispute to both sides. Balancing all of the 40 Park Lane factors, the court exercised its discretion to extend time, but only on strict conditions designed to protect the applicant and reflect the prejudice already suffered.

Outcome, costs, and overall result

Justice Dow granted the respondent law firm a short extension of time to challenge the Superseding Report and Certificate of Assessment, on clearly defined terms. The law firm was given seven days to prepare and serve a fresh Notice of Motion seeking to set aside the Superseding Report and Certificate of Assessment dated May 29, 2025. Within the same seven-day window, the law firm was ordered to return the $17,168.68 it held in trust (together with any accrued interest) to counsel for the applicant, with those funds to continue to be held in trust pending settlement, disposition of the new motion, consent of the parties, or further order of the court. If the law firm failed to comply with these conditions, its motion, as contained in its December 5, 2025 motion record, would be dismissed. In addition, the law firm was ordered to pay the applicant’s costs of these motions fixed at $2,373, inclusive of fees and HST, forthwith, while the applicant’s own motion was otherwise dismissed with issues of costs and interest on the underlying assessment deferred to the judicial officer who will ultimately determine the law firm’s new motion. Taking the decision as a whole, the applicant, as trustee for the estate, remains the more successful party in monetary and substantive terms: the law firm’s account stands at $Nil, the Superseding Report and Certificate of Assessment includes a prior costs award of $10,622 in his favour, the law firm must return the $17,168.68 to be held in trust for his side, and he is awarded a further $2,373 in motion costs. Aggregating the figures identified in the decision, a total of $30,163.68 in monetary amounts (excluding any interest on the trust funds, which cannot be precisely determined from the decision) is referenced as ordered or held for the benefit of the successful party, the applicant trustee for the estate.