Executive Summary: Key Legal and Evidentiary Issues

• Fasken Martineau DuMoulin LLP moved for summary judgment on unpaid legal accounts of $1,018,968.16, out of $1,733,642.78 billed between December 2018 and March 2020, against Suske Capital Inc., Family Retirement Residences Inc., and Stephen Suske as personal guarantor.
• The defendants sought dismissal of the motion and referral of the accounts for assessment under section 4 of the Solicitors Act or the Court's inherent jurisdiction, relying on "special circumstances."
• None of the plaintiff's documents — the two retainer letters, the June 2020 Acknowledgment of Indebtedness, or the March 8, 2021 Personal Undertaking and Guarantee — directly advised the clients of their right to have the firm's accounts assessed.
• Evidence showed the firm breached its own sixty-day billing term, including an August 31, 2018 invoice of $906,137.62 covering five months of work, and knew of client fee concerns from a December 7, 2018 email.
• Timing was a central issue, since the last invoice was dated November 11, 2020 and the defendants first raised assessment in their Amended Statement of Defence and Counterclaim of March 11, 2025.
• Justice G. Dow found special circumstances existed, dismissed the summary judgment motion, and ordered the accounts referred for assessment, with costs left to be agreed or determined through written submissions.

Facts of the case

Fasken Martineau DuMoulin LLP sued Suske Capital Inc., Family Retirement Residences Inc., and Stephen A. Suske in the Ontario Superior Court of Justice for unpaid legal fees, and moved for summary judgment. The firm claimed $1,018,968.16 outstanding on accounts totalling $1,733,642.78 rendered between December 2018 and March 2020, and sought judgment against Stephen Suske personally under a guarantee he signed on March 8, 2021. The retainer began with a letter dated December 5, 2017, confirming Suske Capital Inc.'s request that the firm complete a reverse takeover transaction through which the newly created Family Retirement Residences Inc. would acquire retirement residence assets owned by Suske Capital's development partners. A second retainer letter followed on July 26, 2019, this time naming Family Retirement Residences Inc. as the client for additional transactions. The relationship deteriorated: the firm did not render accounts every sixty days as agreed, and by December 7, 2018, while making a $500,000 payment, Farooq Moosa, then President and CEO of Family Retirement Residences Inc., emailed the firm that he was reviewing the time dockets and would return with observations and concerns about the outstanding invoices — a review that never occurred. The defendants, in an Amended Statement of Defence and Counterclaim dated March 11, 2025, asked that the motion be dismissed and the accounts referred for assessment under section 4 of the Solicitors Act, R.S.O. 1990, c. S.15, or the Court's inherent jurisdiction, citing special circumstances.

Contractual documents and clauses at issue

Four documents anchored the firm's claim. The December 2017 retainer letter provided for billing every sixty days and attached a standard form "Client Service Terms-Canada." The closest those Terms came to advising the client of its assessment rights was a "Questions and Concerns" clause inviting clients to raise concerns with their client manager or the Managing Partner for Ontario, and noting that the rules governing the legal profession provide formal procedures for review of accounts by independent authorities. The July 2019 retainer letter attached the same Terms. A June 2020 Acknowledgment of Indebtedness recorded an unpaid balance of $1,070,488.29 — which the Court noted was an incorrect amount — and stated the corporate defendants had an opportunity to obtain independent legal advice, but made no mention of any right to assess the accounts. Finally, the Personal Undertaking and Guarantee Agreement of March 8, 2021 provided at paragraph 2.3 that Stephen Suske waived all defences in respect of the indebtedness and the enforcement of the engagement letters; it too was silent on assessment rights.

The court's reasoning and analysis

Justice G. Dow began from the principle that a solicitor-client relationship differs from an ordinary commercial relationship: the solicitor owes a fiduciary duty, and the relationship is one of trust and confidence carrying obligations of loyalty and transparency, citing Ledroit v. Rooplall, 2011 ONSC 2751. Drawing on Echo Energy Canada Inc. v. Lenczner Slaght Royce Smith Griffin LLP, 2010 ONCA 709, the Court emphasized that public confidence in the administration of justice requires courts to protect a client's right to a fair procedure for assessing a solicitor's bill. Although the time limits in section 4 of the Solicitors Act and the two-year period under the Limitations Act, 2002 had passed — the last invoice was dated November 11, 2020, and assessment was first sought in March 2025 — assessment can still be ordered where the client demonstrates special circumstances, and a superior court retains inherent jurisdiction to review lawyers' accounts apart from any statute, per Guillemette v. Doucet, 2007 ONCA 743. The defendants pointed to the firm's awareness of fee concerns from the December 2018 email, its failure to advise them of the assessment process despite its fiduciary duty, the very large quantum, an acknowledged instance of overcharging connected to a retainer fee cap of $24,936.56, and the fact that neither the reverse takeover nor the public offering was completed. The firm countered that Stephen Suske was a sophisticated businessman with access to lawyers, that he admitted awareness of the documents he signed, that the Acknowledgment provided for independent legal advice, and that the guarantee waived all defences. Exercising a fact-driven judicial discretion, the Court preferred the defendants' position, endorsing the sentiment in Metzler et al. v. Shier et al. and the statement in Borden Ladner Gervais LLP v. Cohen, 2005 CanLII 21114, that the client's right to assessment is an important right not to be taken away except in compelling circumstances, and observing that none of the firm's documents advised the client, in any direct or coherent form, of that right.

Ruling and outcome

Finding that special circumstances existed, the Court dismissed Fasken Martineau DuMoulin LLP's motion for summary judgment and ordered the firm's accounts referred for assessment, making the defendants — Suske Capital Inc., Family Retirement Residences Inc., and Stephen Suske — the successful parties on the motion. No monetary amount was ordered, granted, or awarded in their favour in this decision. On costs, the Court noted the parties' competing costs materials, including the defendants' partial indemnity Bill of Costs totalling $47,342.80, but urged the parties to agree; failing agreement, written submissions were directed on a schedule ending August 24, 2026, so the costs amount remains undetermined.