Simon Kent Law Corporation v. Rick Davidson Date:, 2014 BCPC 238

Citation: Simon Kent Law Corporation v. Rick Davidson Date: 20140711 2014 BCPC 0238 File No: 13-46546 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SIMON KENT LAW CORPORATION dba KENT EMPLOYMENT LAW CLAIMANT AND: RICK DAVIDSON DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing for the Claimant: Richard Johnson Appearing in person: Rick Davidson Place of Hearing: Vancouver , B.C. Date of Hearing: June 11, 2014 Date of Judgment: July 11, 2014

[ 1 ] This is a claim for legal professional services rendered by the Claimant for $2,721.83, as well as interest, filing fees of $100.00, and service cost of $20.00 in relation to a claim for wrongful dismissal, and a complaint to the BC Human Rights Tribunal. [ 2 ] The Defendant, Rick Davidson (“Mr. Davidson”), was involved in a dispute over his dismissal as Executive Chef at Arbutus Ridge Golf Club in Cobble Hill, British Columbia (“GolfBC”). [ 3 ] This lawyer/client relationship lasted from approximately November 15, 2011 to April 3, 2013, at which time the Claimant terminated the Retainer. [ 4 ] In 2011, Mr.

Davidson retained Jonas McKay of the Claimant’s office. Mr. McKay’s hourly rate at the time was $275. [ 5 ] The Retainer Agreement dated November 15, 2011 was never signed, however, no issue was raised by Mr. Davidson in this regard. Also, I note an email sent by Mr. Johnson on May 3, 2012 raising this issue, to which Mr. Davidson responded that he would look for the Retainer Agreement. Various emails throughout the course of the Retainer acknowledge monies owing by Mr. Davidson and, in my opinion, confirm the Retainer Agreement. [ 6 ] I am satisfied that Mr.

Davidson accepts that he owes some fees, although how much is owing, if any, is disputed. [ 7 ] During the majority of the time that Mr. McKay was counsel, seven invoices were rendered for $3,737.98 (“Undisputed Accounts”). These invoices were paid in full as at July 9, 2012. [ 8 ] Mr. Davidson was satisfied with Mr. McKay’s work, and thought him to be clear, forthright, and acting in Mr. Davidson’s best interests.

The Undisputed Accounts include the following: Date Amount October 21, 2011 308.00 November 23, 2011 770.56 January 4, 2012 560.56 February 7, 2012 341.36 April 4, 2012 608.38 May 3, 2012 970.37 June 8, 2012 178.75 Total: $3,737.98 [ 9 ] $308 of the Undisputed Accounts was paid after the consultation on October 21, 2011, and the remaining $3,429.98 was paid in full on July 9, 2012. [ 10 ] In or about May 2012, Mr. Davidson’s file was transferred to Richard Johnson (“Mr. Johnson”), who testified on behalf of the Claimant. Mr. Johnson’s hourly rate at the time was $225.

The Disputed Accounts [ 11 ] The disputed accounts were rendered between July 10, 2012 and April 9, 2013, as follows: Invoice Date Hours charged Fees Fees Tax Disb. Disb.

Tax Total July 10, 2102 1.3 @ $225 292.50 35.10 8.40 1.01 337.01 Aug. 24, 2012 2.90 @ $225 (minus $52.50 discount) 600.00 72.00 39.90 4.79 716.69 Oct. 9, 2012 0.4 @ $225 0.8 @ $240 282.00 33.84 58.35 6.16 380.35 Nov. 5, 2012 0.4 @ $240 96.00 11.52 0.90 0.11 108.53 Feb. 6, 2013 0.3 @ $240 72.00 8.64 1.50 0.18 82.32 April 9, 2013 3.3 @ $240 792.00 95.04 207.46 2.43 1,096.93 Total: 9.4 hours $2,134.50 $256.14 $316.51 $14.68 $2,721.83 (“Disputed Accounts”) The Client’s Concerns [ 12 ] Mr. Davidson’s concerns are outlined in his Reply, filed January 30, 2014, as well as his Trial Statement, filed June 5, 2014.

These include: a. He did not authorize the work completed by Mr. Johnson;

b. The services, communication, and consultation was poor; c. Mr. Johnson did not adequately inform, consult, or provide him with the services he expected; d. He was not provided with the approach that best fit his needs; e. Mr. Johnson did not adequately guide or negotiate on his behalf; f. Numerous other allegations including negligence, breach of fiduciary duty, unethical behaviour, unprofessionalism, incompetence, and inadequate service. [13] In an email dated August 12, 2012, Mr.

Davidson expressed a concern about unfamiliarity with the legal process and costs ofthe legal work. [14] On September 20, 2012, Mr. Davidson sent an email to Mr. Johnson advising that he believed little progress was being made,but that the legal cost continued to increase. He expressed that he was not being informed as much as he expected, that he had noprevious experience dealing with lawyers, and that he did not feel assured that he was in good hands. [15] Mr. Johnson responded on September 20, 2012. He acknowledged Mr. Davidson’s concerns and advised that he was unawareof Mr.

Davidson’s desire for more contact aside from the emails. He further advised about the status of the file, and that the HRComplaint was in accordance with the Tribunal’s litigation schedule. I note that 0.3 hours was charged for this correspondence. [16] Mr. Davidson promised that he would begin payments in mid-October 2012 by email sent September 26, 2012. On December20, 2012, Mr. Davidson stated he was working on getting his bill paid up. By email on January 14, 2013, Mr. Davidson promised tostart sending some payments. An email from Mr.

Davidson on March 12, 2013 made further promises of payment and, specifically, that he will be sending cheques for the 15th and last day of each month to “get up to date.” [17] In an email on March 22, 2013, Mr. Johnson advised Mr. Davidson that because of the unpaid accounts, he was ceasing workexcept for work that was absolutely necessary. [18] Mr. Davidson was terminated as a client on or about April 3, 2013. [19] By email on April 16, 2013, Mr. Davidson expressed dismay at the situation.

He stated that he had not been able to check hisemail until that date, he was unhappy that he had been terminated as a client, the Claimant knew that he had very little money, that he felt“out of the loop”, and that the Claimant had done a poor job. He closed with a statement that he will try to pay off the remainder in full. [20] On April 25, 2013 and on June 10, 2013, Mr. Davidson once again promised payment. [21] On July 4, 2013, Mr. Davidson emailed the Claimant to request the final invoice, and stated that he will be addressing theoutstanding accounts in the near future. Ms.

Frances Heaps of the Claimant’s office responded on July 5, 2013 attaching a statement andconfirming the final amount owing. Law: [22] The legal test to determine the reasonableness of a lawyer’s fees, as adapted from Yule v Saskatoon (City) (No. 4), (SKQB) (“Yule”) is codified in the provisions of the Legal Profession Act, SBC 1998, c 9 (the “Act”). [23] I must consider the following in determining the amount of fees and disbursements “reasonably necessary and proper to conductthe proceeding” for which the solicitor was retained (ss. 71(2)(

a) and (4) of the Act). The specific factors which I must bear in mind are: 71(4) At a review of a lawyer's bill, the registrar must consider all of the circumstances, including: (

a) the complexity, difficulty or novelty of the issues involved, (

b) the skill, specialized knowledge and responsibility required of the lawyer, (

c) the lawyer's character and standing in the profession, (

d) the amount involved, (

e) the time reasonably spent, (

f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent bythe lawyer, whether the rate was reasonable, (

g) the importance of the matter to the client whose bill is being reviewed, and (

h) the result obtained. The complexity, difficulty or novelty of the issues involved:

[ 24 ] The issues were not particularly complex, difficult, or novel. The skill, specialized knowledge and responsibility required of the lawyer: [ 25 ] Mr. Johnson was called to the British Columbia Bar on June 7, 2010. I note that he previously practiced in Alberta. Mr. Johnson, in my opinion, has the necessary skills to represent the client. The lawyer’s character and standing in the profession: [ 26 ] I do not accept that Mr. Davidson’s claims in his Trial Statement against Mr. Johnson are well founded. The Claimant was retained, at least in part, on the basis of its reputation. I find Mr.

Johnson to be able counsel, and do not find that his character or standing is at issue. The amount involved: [ 27 ] The outcome and amount involved is unclear, as the Retainer was terminated prior to the trial. However, Mr. Johnson, on Mr. Davidson’s behalf, sought relief pursuant to s. 37(d)(ii) and (iii) of the Human Rights Code , RSBC 1996, c 210 , including lost wages, vacation pay, wage contributions, interest, expenses, tax liability, and compensation for injury to dignity. The time reasonably spent: [ 28 ] Mr.

Davidson contests all bills rendered after date of payment on July 9, 2012. [ 29 ] I have reviewed the Claimant’s Trial Statement, as well as the Reply and Statement of the Defendant. Mr. Davidson had expressed satisfaction with the work of Jonas McKay, and unhappiness in which his file was handled by Mr. Johnson. [ 30 ] I do not find the time expended by Mr. Johnson, which was less than 10 hours over almost ten months, to be unreasonable, except in relation to those explained below. [ 31 ] I find it troubling that Mr.

Davidson was billed for time to terminate the solicitor-client relationship on and after April 3, 2013. That said, I appreciate that much time was likely spent corresponding back and forth via email with Mr. Davidson after that date, until the date a Notice of Claim was filed in these proceedings, after which Mr. Davidson expressed his dissatisfaction. [ 32 ] Mr. Johnson and Mr. Kent of the Claimant’s office responded to these emails in an attempt to address them. This time was unbilled.

If there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable: [ 33 ] Mr. Johnson’s hourly rate increased on or about September 14, 2012. This rate change is reflected midway through the October 9, 2012 Invoice. There is no advice to the client of this increase. The increase is apparent by one conducting a calculation of that time billed. It appears Mr. Johnson’s billing rate was increased from $225 to $240 per hour. [ 34 ] However, although there was no signed Retainer Agreement, I find that Mr.

Johnson’s hourly rate was fair for his experience and year of call to the Bar. The importance of the matter to the client whose bill is being reviewed, and the result obtained: [ 35 ] This matter was of great importance to Mr. Davidson, or he would not have chosen to instruct Mr. Johnson to undertake the work done. [ 36 ] I do not know the final outcome of this case, or if there has been any resolution, as no evidence was led by Mr.

Davidson in this regard. [ 37 ] According to the factors, as set out in Yule , a Court may also take into account other factors, including the client’s ability to pay. [ 38 ] For at least some of the Retainer, Mr. Davidson was not working.

However, several emails indicate that he had found a new job at the Parksville Beach Club Resort and Spa, and that he was earning an income for at least part of the Retainer. [ 39 ] Nonetheless, a client’s ability to pay “should not be a critical factor leading to a major reduction of, or dismissal of, a lawyer’s bill, whose only “sin” was to take on an impecunious client”: ( Kowarsky & Co. v Williams , [1998] BCJ No 543 at para 68 , as cited in Dreyer v Nelson , 2006 BCSC 1467 at para. 33 ) [ 40 ] Over the course of this Retainer, Mr. Davidson questioned the work being done to support those billings.

However, it is clear that Mr. Davidson’s unhappiness increased significantly after the point of termination on April 3, 2012. Conclusion: [ 41 ] I am satisfied that the Claimant is entitled to fees for services rendered taking into account the following: (

a) Some allowance should be made for the dissatisfaction of Mr. Davidson with the way his case was handled. (

b) In a comparison of the accounts in which Mr. Davidson was satisfied, as opposed to those that he has expressed dissatisfaction, I cannot reasonably find any significant difference. Mr. Johnson billed less time, his fees were $50 less per hour, and when his hourly rate was increased, it was $35 less per hour than Mr. McKay’s charge out rate.

(

c) Many emails went back and forth between the parties after the breakdown of the Retainer. Mr. Davidson expressed his discontent with the services, largely being expressed after his Retainer was terminated. (

d) The Claimant was entitled to terminate its legal services as per the Retainer Agreement at

section 9(

e) and (f). (

e) The time spent to terminate Mr. Davidson as a client should not be allowed. This time was recorded on and after April 3, 2012. As such, I have deducted 2 hours from the total amount owed by Mr. Davidson. (

f) As it was unclear whether it was adequately communicated to Mr. Davidson that Mr. Johnson’s fees were increased on or about September 14, 2012, it is reasonable to disallow that increase in the final calculation. [ 42 ] Accordingly, I award the Claimant the following: 7.4 hours legal services @ $225 = 1,665.00 Minus original discount (Aug 24, 2012)

(52.50) Tax on fees (12% x $1,612.50) = 193.50 Disbursements 316.51 Tax on disbursements 14.68 Subtotal: $2,137.19 Filing fees: 100.00 Service fees: 20.00 Total: $2,257.19 [ 43 ] The Claimant is entitled to pre-judgment interest from April 9, 2013 to the date of this Judgment, which sum shall be calculated by the Court Registry. __________________________ Lawrence A. Kahn