Law Society of Alberta v Thomas, 2011 ABQB 441

Court of Queen ’ s Bench of Alberta Citation: Law Society of Alberta v Thomas, 2011 ABQB 441 Date: 20110708 Docket: 0903 11851 Registry: Edmonton In the Matter of the Legal Profession Act of Alberta and In the Matter of the Custodianship of Terry J. Thomas Between: Joseph M. Shafir, in His Capacity as Custodian of the Law Practice of Terry J. Thomas Applicant - and - Terry J. Thomas, Edward Ens Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] This is an application on behalf of the Law Society of Alberta under the Legal Profession Act of Alberta , R.S.A. 2000, c. L-8 in the matter of the custodianship of Terry J. Thomas for an Order seeking a declaration that Mr. Thomas has no claims for fees against funds held in trust by the custodian attributable to Mr. Ens’ file in the sum of $5,260, and directing that the custodian should pay the sum of $5,260 to Mr. Ens unconditionally. The Law Society also seeks costs of this application from Mr. Thomas.

[ 2 ] Mr. Thomas does not appear but does provide a series of emails opposing the requested declaration in general terms, however he has never seen fit address the Court directly on the issue. However Mr. Ens does appear and submits that no money is owing for unbilled legal fees to Mr. Thomas, and furthermore that Mr. Thomas told him on the morning of this application that he would not be contesting the matter, which Mr. Ens took to mean that Mr. Thomas agreed that the $5,260 should be returned to him in full. [ 3 ] A custodian is appointed under the Legal Profession Act pursuant to

Section 95 , which reads as follows:– Custodian 95(1) In any of the following cases: (

a) when the name of a member has been struck off the roll; (

b) when the membership of a member has been suspended; (

c) when a member’s conduct is the subject of any proceedings under

Part 3 and there is reason to believe that the conduct involves the misappropriation or wrongful conversion of property; (

d) when a member has died or become mentally incapacitated; (

e) when by reason of illness or for any other reason a member is unable to practise as a barrister and solicitor; (

f) when a member has absconded or is otherwise improperly absent from the member’s place of business or has neglected the member’s practice for an unduly extended period; (

g) when there is reason to believe that the trust money held by a member is not sufficient to meet the member’s trust liabilities; (

h) when other sufficient grounds exist, the Court of Queen’s Bench, on application by the Society either ex parte or on such notice as the Court may require, may by order appoint a person as custodian to have custody of the property of the member and to manage or wind up the legal business of the member.

(2) An order under subsection (1) may direct a civil enforcement agency to seize and remove and place in the custody of the custodian all property of the member, and to that end the order may authorize a civil enforcement bailiff to enter on any premises or open any safety deposit box or other receptacle when there are grounds for believing that property of the member may be found on it or in it.

(3) Unless otherwise directed, the order shall be promptly served on the member.

(4) On receipt by any person of notice that an order has been made pursuant to this section, the person shall retain and shall not dispose of any property of a member until directed by the custodian or by order of the Court as to the disposition of it.

(5) The Court of Queen’s Bench may in an order under subsection (1) or may at any time and from time to time by a subsequent order made ex parte or on such notice as the Court may require, (

a) direct a depository of any property of a member (

i) to deal with, hold or dispose of the property in accordance with the order, or (ii) to pay over or deliver the property to the custodian in accordance with the order, (

b) remove any custodian appointed by the order and appoint another custodian, (

c) give directions and advice to the custodian as to the disposition of the property in the custodian’s hands or any part or parts of it, or (

d) give any directions or make any other order that the nature of the situation requires. [ 4 ] In the only Affidavit before me in this matter sworn by Mr. Shafir on March 18, 2011, he deposes that he sent a number of emails to Mr. Thomas concerning whether there were legal fees owing to Mr. Thomas by Mr. Ens. Mr. Thomas indicated that he would provide Mr. Shafir with a statement of account, but he has failed to do so. Mr. Shafir advised Mr. Thomas in these emails that Mr. Ens was claiming that there were no legal fees payable to Mr. Thomas by Mr.

Ens. [ 5 ] A review of the numerous emails attached to the Affidavit shows that Mr. Shafir wrote to Mr. Thomas on February 10, 2011 advising Mr. Thomas that Mr. Ens believed that there were no legal fees owing to him, and asking Mr. Thomas to please confirm whether any legal fees were owing to Mr. Thomas. [ 6 ] Mr. Thomas emails back on February 11, 2011 indicating that Mr. Ens’ file was “massive”, and that “there are no fee’s owing back to Mr. Ens”. [ 7 ] On February 11, 2011 Mr. Shafir again emails Mr. Thomas indicating that he did not ask if there are “fees owing back to Mr.

Ens”, but rather “the question is: are you owed any fees?”. [ 8 ] Mr. Thomas then responds again on February 11, 2011 to Mr. Shafir as follows:– No there are no other fees owed as his retainer covered the fees incurred any unbilled fee we wrote off as the fee’s from Fortis and retainers covered the time incurred. [ 9 ] In response to this email Mr. Shafir emails Mr. Thomas and indicates that he will be returning the $5,260 back to Mr. Ens, at which point Mr. Thomas on February 11, 2011 responds as follows:– What did you not get those fees are that of Thomas Law, no more fees are owing to Mr.

Enns, in that those fee’s are paid to the credit of work completed on not one but two files. Release the fees and you will be responsible to account to for the balance. [ 10 ] Mr. Thomas then again threatens Mr. Shafir later on February 11, 2011 with the following:–

The files speaks for itself examination court applications numerous meeting filing, affidavits I will hold you personally responsible for recovery of those fees if you release them to Mr. Enns. This is no more your piggy bank than it was mine. [ 11 ] Mr. Shafir then on February 11, 2011 demands that Mr. Thomas prepare a statement of account and email it to him no later than February 18, 2011, failing which he would seek a Court Order and costs against Mr. Thomas. [ 12 ] The email exchanges continue on February 11, 2011 with Mr. Shafir demanding from Mr. Thomas whether Mr.

Ens owes him money for services performed that have not been billed, and Mr. Thomas responding that Mr. Shafir is:– Your playing games. I said he owned “no other” fee’s other than what he has paid. There were other accounts on the file. His fee’s were in excess of $10,000.00. No other fee’s were being billed beyond what he paid. I will check with his current counsel as to what he has on file. I can’t imagine what fee’s you have charged to the Law Society. [ 13 ] The email exchange ends that day February 11, 2011 with the following statement from Mr. Thomas to Mr. Shafir:– You are the one who does not understand.

Clearly I have stated no of those monies that you claim are unbilled are to be refunded to Mr. Enns. Those fees or retainer is for work billed or unbilled. You have asked for an account one shall be forthcoming. [ 14 ] Mr. Shafir then invites Mr. Thomas to prepare a statement of account of services rendered to Mr. Ens, and to provide him with that account by the close of business on March 9, 2011. [ 15 ] No statement of account has ever been prepared by Mr. Thomas in this matter, nor did he appear when this matter was heard before me on July 5, 2011. Mr. Thomas did however email Ms.

MacLean, counsel for the Law Society and for the Applicant Mr. Shafir, on Monday, July 4, 2011 to indicate that he needed an adjournment due an “unfortunate personal situation” which he alluded to as being some sort of “personal medical issue”. Mr. Thomas noted in his July 4, 2011 email that “Mr. Enns does not dispute the amounts billed to him”. Conclusion [ 16 ] This matter was originally scheduled to be heard on June 15, 2011, but Mr. Thomas was granted an adjournment to July 5, 2011. Part of the provisions of Justice Verville’s Consent Adjournment Order was that Mr. Thomas’ request to question Mr.

Shafir on his Affidavit in this matter must be completed by June 30, 2011, the same date in which Mr. Thomas was to render statements of account in the Ens file. Mr. Shafir as I understand it was never examined on his Affidavits, nor has Mr. Thomas ever rendered a statement of account to Mr. Ens. [ 17 ] Mr. Ens insists before me that he owes nothing more to Mr. Thomas, and that in fact Mr. Thomas wrote on his last statement of account to Mr. Ens that all payments in full had been made on his account from February 2009. Mr.

Ens however does not file any Affidavit before me, nor can he find the receipt of payment in full of all monies owing from Mr. Thomas. Nor am I able to rely completely on Mr. Thomas’ hearsay admission made to Mr. Ens on the date of this application, although I believe it to be reliable information from Mr. Ens. Given that the custodianship in this matter did not occur until July 2009, it is possible that legal fees were incurred that Mr. Ens is responsible for since the February 2009 “paid in full” reference written by Mr. Thomas.

[ 18 ] Mr. Thomas has apparently not been disbarred, but his practise has been in custodianship for two years since July 2009 so the Law Society has some trusteeship aspect and obligations to Mr. Thomas’ professional practice. [ 19 ] The Court is alive to the possibility that Mr. Thomas may be suffering from certain personal medical issues, which may explain the very erratic nature of many of his emails, and the poor grammar and disjointed composition contained in those emails. However notwithstanding Mr. Thomas’ “health problems” and “personal issues’, he seems to be working as the emails from Mr.

Thomas identify himself as principal of Thomas Law Consultants Group of Edmonton practising it appears as Thomas Law Solutions. [ 20 ] Additionally Mr. Thomas has consistently refused to bill for any fees owing by Mr. Ens, and the Court must draw the undeniable inference that Mr. Ens does not owe Mr. Thomas any further legal fees. If Mr. Thomas was owed legal fees for unbilled worked by Mr. Ens surely at some point throughout the course of many months and many emails, he would have issued his statement of account. [ 21 ] Instead Mr.

Thomas has engaged in a pattern of delay and obfuscation. [ 22 ] The Court will declare that Mr. Terry J. Thomas has no claim for fees against the funds held in trust by the custodian attributable to the Edward Ens file in the sum of $5,260, and the custodian should immediately pay Mr. Ens $5,260. The Law Society is awarded costs of this application from Mr. Thomas’ practise. Heard on the 5 th day of July, 2011. Dated at the City of Edmonton, Alberta this 8 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Lois J. MacLean de Villars Jones for the Applicant Edward Ens

Appeared on His Own Behalf