2010 QCCQ 11648, 2010 QCCQ 11648

Bertucci c. Aguzzi 2010 QCCQ 11648 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-118599-093 DATE: December 15, 2010 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ ANTHONY BERTUCCI […], Montréal, Qc., […] Plaintiff v.

ADAM AGUZZI […], Boucherville, Qc., […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Anthony Bertucci is suing Adam Aguzzi for $3,386.25, representing his account for professional accounting services. Mr. Aguzzi, who was represented by his father at trial, claims that the price agreed upon was half that amount. The evidence: [ 2 ] Mr. Bertucci, an accountant, received a mandate from Adam Aguzzi. According to Mr. Bertucci, he was asked to do Adam's personal income tax for the 2007 tax year.

He advised Adam he estimated his return would cost about $1,500 but he charged according to an hourly rate of $250 per hour; the rate of his partner, Mr. Chait, was $150 per hour. [ 3 ] On April 7, 2007, Adam's father brought the relevant documents to Mr. Bertucci. According to Mr. Aguzzi Sr.'s testimony, there was no mention of an hourly rate. [ 4 ] M. Bertucci testified that in addition to preparing Adam Aguzzi's provincial and federal tax return, he was asked to amend the provincial income tax return that Mr. Aguzzi Sr. had filed for his wife, since she had purchased property with her son Adam.

Her federal income tax also needed to be prepared. [ 5 ] Mr. Bertucci claimed that the tax return for Mrs. Aguzzi contained multiple errors that needed correction. As well, the figures in Adam's and Mrs. Aguzzi's tax returns, regarding their jointly owned properties, had to correspond. [ 6 ] Mr. Aguzzi Sr. claimed he supplied all the requisite information regarding the expenses concerning the two rental properties, jointly owned by his wife and his son. He contends that the information can be entered into computer program, which generates the results quickly. [ 7 ] Mr.

Bertucci contended that more was involved than simply splitting the expenses between Adam and Mrs. Aguzzi; rather the depreciation had to be determined separately for each property. There were also expense allocations. In addition, he contended that the documentation he received was not in order to allow for the splitting of the properties. Finally, given that the adjustments constitute a separate operation, the two tax returns could not be done simultaneously. Analysis: [ 8 ] Mr. Aguzzi disputes the time spent on the files, contending that the work could be done quickly with the use of a computer

program. However, Mr. Bertucci spent time dealing with a number of elements, which had to be considered in determining the depreciation and expense allocation for each property involved. This was the first time a tax return had been done involving the real estate jointly owned by Adam and his mother. Once the initial breakdown between properties was determined, the process is less time consuming in the ensuing years. [ 9 ] Accordingly, Mr.

Aguzzi's argument with respect to the amount of time spent on the file is not retained. [ 10 ] The other aspect of the claim concerns the nature of the mandate given by Adam Aguzzi to Mr. Bertucci. [ 11 ] Mr. Aguzzi Sr. maintains Mr. Bertucci had been told at the outset that the mandate concerned both Adam Aguzzi and Mrs. Aguzzi. Therefore, the total amount foreseen was $1,500 for both files and not $3,386.25, namely the amount billed. [ 12 ] However, Mr. Aguzzi Sr. was not the one who had the initial conversation with Mr. Bertucci.

That conversation was with Adam and Adam was not present at the hearing to testify as to whether the mandate concerned only his file or both his and his mother's file. [ 13 ] Mr. Bertucci maintains that the initial discussion concerned Adam Aguzzi's file and contends that his initial estimate was solely for Adam's tax return. It was only subsequently he learned that his client wanted him to prepare the returns for both Adam and Mrs. Aguzzi. [ 14 ] Given Mr. Bertucci’s testimony and the lack of evidence from Adam Aguzzi, the Court concludes that the sum of $1,500 quoted by Mr.

Bertucci was to prepare Adam's taxation return and not the two files. [ 15 ] However, this does not end the matter. The evidence does not indicate that Mr. Aguzzi was informed as to the cost for the services regarding his wife's tax file. [ 16 ] In fact, Mr. Bertucci did not provide any indication as to how much he estimated as fees for his services with respect to the second file. [ 17 ]

Article 57 of the Code of ethics of chartered accountants states [1] : A member shall make sure that his client is informed of the approximate and foreseeable cost of his services unless he can reasonably assume that the client is already informed. A member shall inform his client without undue delay if he expects to exceed the approximate cost. [ 18 ] In this case, while Mr. Bertucci is entitled to be remunerated for accounting services he provided, he failed to respect his obligation of information as set out in

article 57 of the Code of ethics governing the setting and payment of fees. [ 19 ] The remedy in such cases is a reduction of fees. In the case of Mathieu c. Marchand [2] , the Court of Appeal concluded that where there has been a violation of the obligation to inform, foreseen by the Code of Ethics governing lawyers, the only satisfactory solution is a reduction of the amount of professional fees payable: « Tel qu'il a été observe précédemment, le juge a constaté que l'avocat n'a pas renseigné le client sur le taux horaire at the time of the mandate.

Il convient d'ajouter que, par la suite, l'avocat n'a pas renseigné utilement son client sur le prix approximatif et prévisible de ses services… » Les dispositions de l'article 3.08.04 du code de déontologie des avocats se lisent ainsi: 3.08.04 L'avocat doit s'assurer que son client est informé du coût approximatif et prévisible de ses services, sauf s'il peut raisonnablement présumer que ce client en est déjà informé. (…) Ces dispositions ont pour effet d'imposer à l'avocat une obligation de renseignement. Dans le présent cas, le juge constate en définitive qu'il y a eu manquement à cette obligation.

Quelle est la sanction? Le juge, me semble-t-il, est d'avis que la sanction est une réduction des honoraires. Dans la relation avocat-client, je ne vois pas d'autres sanctions satisfaisantes. » [ 20 ] The above citation and underlying principle are applicable to the present case. [ 21 ] In light of Mr. Bertucci's failure to inform, the Court considers it appropriate to reduce the amount charged. After consideration of the said violation as well as the services rendered, the Court in its discretion reduces the amount of Mr.

Bertucci's invoice such that the total amount payable is $2,900. [ 22 ] As obiter, this litigation could have been avoided had a mandate for professional services been executed before beginning to work on the file of Mr. Aguzzi's wife, setting out the hourly rate, the estimated cost for services and the nature of the work involved. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's claim; CONDEMNS Adam Aguzzi to pay Me Anthony Bertucci, the sum of $2,900 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec , since June 16, 2009, plus the judicial fees of $127.

__________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: October 25, 2010