2015 QCCQ 317, 2015 QCCQ 317

Macleod c. Foner Lieberman 2015 QCCQ 317 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-137488-138 DATE: January 9, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ HEATHER MACLEOD […] Montréal, Qc […] Plaintiff v.

JUDITH FONER LIEBERMAN […] Montréal, Qc […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Heather Macleod, an advocate in the Province of Quebec, sues a former client, Judith Foner Lieberman, on account for professional services rendered between the period January 11, 2012 and June 25, 2012. [ 2 ] The amount claimed for the fees is $ 5,866.99 representing approximately 66.7 hours charged at $ 100 per hour plus disbursements. [ 3 ] The balance takes in to account an amount of $ 1,000 that was given in trust and applied to the first of the two accounts dated May 8, 2012 (P-1).

The second invoice remained entirely unpaid. [ 4 ] The written defence was difficult to understand stating: “because of actions loosing papers when given to the attorney, resigned from file: I am unable to present the case to win”. [ 5 ] Apart from this cryptic and incoherent text, there is also the allegation that the Defendant is on public assistance with no other income. [ 6 ] At the trial, the Defendant explained, orally, a more coherent defence. [ 7 ] The Plaintiff explained to the Court that she received a mandate to institute proceedings in divorce, including an interim support measure for the Defendant’s child, who allegedly required support from her.

[ 8 ] The Plaintiff explains that the matter became complicated when the son testified in Court and denied the essential allegations that the Defendant had made about his financial needs. [ 9 ] There was also a claim for an interim measure for funds to cover the costs associated with a house in St-Jean that was alleged to be the common domicile. [ 10 ] The Plaintiff says that she was surprised when she learned, at the hearing, that her client did not live in the alleged common domicile and that the child resided with the father. [ 11 ] The Plaintiff also speaks of a problem when her client left for China.

She sought postponement, among other reasons, because the husband’s affidavit was lengthy and contained numerous facts that the Plaintiff was not prepared to meet. [ 12 ] The file became further complicated with a Motion to declare the Plaintiff a vexatious litigant. This proceeded on January 6, 2014 before the Honourable Daniel W. Payette, J.C.S.

At this point, there had already been hearings before, Mr Justice Payette on October 31, before Mrs Justice Nicole Bénard, December 3 rd , and before Mrs Justice Danielle Turcotte, December 6 th . [ 13 ] Mister Justice Payette condemned Mrs Lieberman to pay a certain amount of money related to these proceedings, reserving the husband’s right to claim, as damages, reimbursement of subsequent fees he may incur before the courts of California, the place of residence of both of the parties. [ 14 ] There are also comments about the Defendant’s conduct in a judgment of the Honourable André Prévost, J.C.S. of August 27, 2013.

All of these decisions are in Court file 500-12-312746-120. [ 15 ] The defence, as it was stated orally at the trial was, essentially, that after 43 years of marriage, Mrs Lieberman found herself in a position where her husband resided in the USA, where he owned US corporations domiciled there. She was living in Saint-Jean in a matrimonial residence with her son.

Her son also stayed in an apartment in Montreal. [ 16 ] She deplores the fact that the international aspect of her situation was not considered by the Plaintiff. [ 17 ] Mrs Lieberman alleges that her husband diverted the assets held by the corporations, of which she was also a shareholder, thereby depriving her of her assets, and that she was left with the financial onus of the home situated in Saint-Jean, with no access to funds. She claims to have learned much of what had occurred at the hearing before Mr Justice Prévost.

Therefore, she could not have conveyed this information to the Plaintiff. [ 18 ] The hearing in that matter was held May 15, 16 and 17, 2013.

At that point, Mrs Lieberman was acting on her own behalf, the Plaintiff having withdrawn from the file, in part because of the non-payment of her fees. [ 19 ] The Defendant complains about having attended at Court for a hearing which ended up being postponed without her having been called as a witness. [ 20 ] It was not possible from the testimony to determine which of the many Court dates this complaint referred to. [ 21 ] The Defendant complaints as well that although she was awarded certain sums of money in some of the interim judgments, she never saw any of this money, because her husband resides in the US, and that, presumably, the judgment has not been enforced.

[ 22 ] She pleads that, given that the judgments in Canada have not really been effective, and that the proper forum for divorce proceedings would be the US, she should have simply been given, by the Plaintiff, the recommendation to her to take her legal proceedings in California. [ 23 ] The Plaintiff rebuts this stating that the Quebec courts did have jurisdiction.

The property situated in Saint-Jean was the only issue involving assets that she was asked to deal with, and she also denies that there was any particular problem with the postponement. [ 24 ] She also states that she was not given the mandate to look into the US affairs.

ANALYSIS [ 25 ] In the Court’s view, the general principal is that, if a professional is given instructions to carry out legal proceedings and does so in a reasonable manner, there is, presumptively, an obligation on the part of the client to pay reasonable fees. [ 26 ] In the present case, there can be no doubt that the hourly rate of $ 100 is reasonable, and there was no probative evidence that the amount of time charged was inaccurate. [ 27 ] The Defendant’s case to contest the bill centers more upon her global situation with her husband, presumably a very complex one, and on the difficulty in obtaining proper evidence of financial matters, and the troubles and problems of enforcing monetary judgments when funds have been transferred either to or from foreign corporate entities.

A brief reading of the decisions of the Superior Court would convince any reader that the Defendant does not have very much credibility as a witness. [ 28 ] In the present case, while her testimony appears to be sincere and direct, it was nevertheless vague and inconclusive.

While much of her legal problems may require resolution through the courts of one or more states of the United States of America, the fact remains that she had an interest in a matrimonial home here in Quebec, her son resided here and, on the face of the allegations she asked her lawyer to make, it would have been normal for her to receive some interim and provisional awards, with respect to the maintenance of her son, who was still a student, and toward the upkeep of the house. [ 29 ] It is not the fault of the attorney that the file became complicated with a rather aggressive and complex contestation, evidentiary difficulties and other complexities. [ 30 ] These are matters that are simply part and parcel of a complex matrimonial file. [ 31 ] While it may have been prudent for the Plaintiff to recommend to Mrs Lieberman that she consult US attorneys about the US aspects of the file, this would also, presumably, have been something that was obvious to Mrs Lieberman. [ 32 ] In

summary, given that the bills appear reasonable for the type of work described in light of the testimony, and given that the Defendant has not established any credible grounds for contesting them, the Court will maintain the action. [ 33 ] The Defendant did not make out any serious grounds for paying the condemnation in instalments. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the amount of $ 5,866.99, with interest at the legal rate plus the additional indemnity provided for in

article 1619 of the Civil Code of Québec , calculated from December 28, 2012. Condemns the Defendant to pay the judicial fees of 167 $ to the Plaintiff.

__________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 10, 2014