2019 QCCQ 453, 2019 QCCQ 453

Friedman Kotler c. Pascal 2019 QCCQ 453 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-500-32-155890-173 DATE: January 28, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE ÉRIC DUFOUR, J.C.Q. ______________________________________________________________________ PHILLIPS FRIEDMAN KOTLER Plaintiff Vs.

JORDAN PASCAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, a law firm, claims $866.79 from the Defendant for unpaid legal services rendered to him. [ 2 ] Defendant denies being indebted towards the Plaintiff. He alleges that the fees agreed on by the parties were at an hourly rate of $200 instead of $450 as claimed by the Plaintiff.

He adds that he entirely paid Plaintiff’s bill and denies owing any additional amount of money. [ 3 ] For the reasons stated below, the Plaintiff’s claim will be dismissed. QUESTIONS IN DISPUTE [ 4 ] Here are the questions the Court will answer :

a) should the revocation of judgment be granted ?

b) has the Plaintiff proved its claim ? CONTEXT [ 5 ] Somewhere towards the end of 2015, Defendant contacted the Plaintiff’s office for legal services in a will/estate file. He meets with an experienced lawyer, Me Nemeroff, at the firm’s office, during which the rate of the fees and the disbursements are discussed. [ 6 ] No contract nor any fee agreement is signed by the parties. According to Me Nemeroff, however, he did inform the Defendant that his rate was $450 per hour.

That being said, he added that his costs would not be so expensive, as he intended to have a junior lawyer work on the Defendant’s file. [ 7 ] Along the way, however, it became clear that it would finally be cheaper for Defendant if Me Nemeroff himself took care of the file, considering the complexity of the legal questions involved. As an experienced lawyer, the matter would then be resolved faster and, hence, at a lower cost for the Defendant. [ 8 ] Defendant gives a different story. He denies having been informed that the file would finally be studied and carried out by Me Nemeroff.

He adds that he paid the first bill sent to him by Plaintiff [1] . [ 9 ] In any event, Plaintiff sends a Statement of account on October 6, 2016, as well as a letter of demand, claiming the outstanding balance of $866.79 [2] . Plaintiff also files its claim, to which the Defendant did not response. Defendant alleges that he was in Italy for a long period of time by then and could not take care of this suit.

A judgement by default was rendered on April 17, 2018, condemning Defendant to pay the amount of money claimed by the Plaintiff. [ 10 ] Defendant then filed a Motion for Revocation of a Judgement, but was absent at the date scheduled for the hearing of it. Acknowledging the absence of the Defendant, Justice Davignon rendered a judgement by which he set aside his motion. It seems however that the address where the notice of hearing was served is incorrect and that said notice was returned to the Court.

As a consequence of this, a new date was scheduled for the hearing of the Motion for a Revocation of a Judgement, which the Court is now seized with. ANALYSIS

a) should the revocation of judgement be granted ? [ 11 ] First, Defendant has to convince de Court that his Motion for a Revocation of a Judgement should be granted. [ 12 ] Defendant testifies that he did not understand he had to answer the proceedings upon receiving Plaintiff’s claim. He was under the impression that he would be informed of the date set for the hearing of the trial. He then left for Italy for some time. Once informed that a judgement had been rendered, he filed his Motion for a Revocation of a Judgement.

The notice of hearing having been sent to a wrong address and returned to the clerk’s office, Defendant was not present at Court on the day scheduled for the hearing of said motion. His motion was then rejected. [ 13 ] Defendant nevertheless kept on going in his efforts to have the judgement be revoked and a new date of hearing was set. [ 14 ] These facts convince the Court that the Motion for a Revocation should be received. Defendant’s absence at trial is due to his misunderstanding of the judicial proceedings. Indeed, no one is deemed to ignore the law.

However, here, Defendant’s negligence is not akin to a situation of «je-m’en-foutisme» constantly condemned by the Courts. If even a mere mistake made without bad faith can be excusable, it should be likewise about the misunderstanding of the necessary legal steps one has follow in order to appear before the small claims division of the Court [3] . [ 15 ] Moreover, Defendant has presented a defence that should be weighed by the Court.

In the present case, allowing Defendant to be heard must prevail over the principle of stability of judgements [4] . [ 16 ] The motion for a Revocation of a judgment will be granted accordingly.

b) has the Plaintiff proved its claim ? [ 17 ] Plaintiff has the burden of proof and must convince the Court that its claim is well founded, according to the standard of evidence in civil matters, i.e., the balance of probabilities [5] . [ 18 ] The Court heard the testimonies of both Me Nemeroff and the Defendant. [ 19 ] Me Nemeroff testifies that his rate was discussed with the Defendant who accepted to pay $450 per hour. He recognizes having discussed the possibility of handing the file to a junior lawyer but revised himself when he realized the complexity of the Defendant’s case.

Me Nemeroff adds that he finally informed the Defendant that he would personally work the file and that it would turn out to be cheaper for him. [ 20 ] Me Nemeroff underlines that he worked the file the number of hours indicated in his Statement of account. [ 21 ] Defendant, on the other hand, swears that he never agreed to retain Plaintiff’s services at such a rate. He affirms that the agreement between the parties was that a junior lawyer, working at $200 per hour, would take care of the file. [ 22 ] That being said, Defendant does not contest the quality of the work done by the Plaintiff.

Defendant adds that he did pay the first bill sent to him and that he was under the impression that he did not owe any money. [ 23 ] The Statement of accounts do not show the hourly rate of Me Nemeroff [6] . That would have helped. [ 24 ] The Court has no reason to discard Defendant’s testimony. He testified calmly and with moderation. When tested by the Court, Defendant kept with his version without changing an iota. His credibility was strong. [ 25 ] That is not to say the Me Nemroff’s version is of no weight.

Me Nemeroff is a senior counsel and nothing in the present judgement affects his credibility. [ 26 ] However, the Court is faced with two credible versions of what is the contract between the parties. The Plaintiff’s claim must then be rejected, for it has the burden of the proof, as explained above.

CONCLUSION FOR THESE REASONS, THE COURT : [ 27 ] RECEIVES the Revocation of a Judgement; [ 28 ] REVOKES the judgement rendered by the Special clerk on April 17, 2018; [ 29 ] RESTORES the parties in their original position; [ 30 ] DISMISSES Plaintiff’s claim, with the judicial costs of $101 representing the costs of the stamp for the Contestation. __________________________________ ÉRIC DUFOUR, J.C.Q. Date of hearing: December 4, 2018