2015 QCCQ 11598, 2015 QCCQ 11598

Robert Sénécal c. S.A. 2015 QCCQ 11598 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-144842-145 DATE: November 18, 2015 __________________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. __________________________________________________________________________ ROBERT SÉNÉCAL Plaintiff vs. S. A.

Defendant ___________________________________________________________________________ JUDGMENT __________________________________________________________________________ [ 1 ] Plaintiff, a notary, is claiming payment of the balance of $3,323.79 due on his May 9, 2014 invoice. [ 2 ] The Defendant contests the claim alleging that Plaintiff had quoted that he would charge $900 plus taxes and costs for his services.

CONTEXT [ 3 ] In the summer of 2013, the Defendant was looking for a notary to represent him in proceedings aiming at declaring his mother incapable of caring for herself and attending to her affairs. [ 4 ] Sometime during that summer, the Defendant met with Plaintiff to explain his mother’s situation and obtain information as to how proceed. [ 5 ] The parties version of what was discussed at that meeting differ. [ 6 ] According to Plaintiff, the Defendant represented to him that one of his siblings held a mandate his mother had signed in case of her incapacity.

Accordingly, Plaintiff declared that he quoted the Defendant that he would charge a flat fee of $975, plus taxes and costs, to have the mandate homologated.

He may have explained to the Defendant the proceeding that would have to be followed should it turned out that his mother’s mandate could not be found. [ 7 ] Still, according to Plaintiff, it took a while after the parties’ initial meeting before it became clear that there was no mandate given in case of incapacity and for Plaintiff’s mandate to change from homologating a mandate given in case of incapacity, to proceeding with a family council and the opening of a protective regime for the Defendant’s mother. [ 8 ] According to the Defendant, he told Plaintiff right from the get go that his mother did not have a mandate given in case of her incapacity; that his 11 siblings were scattered around the world; and that he was on a

schedule to take over his mother’s affairs to manage the product of an insurance indemnity and have her house, that had been destroyed by a fire, rebuilt. [ 9 ] The Defendant contends that Plaintiff thus explained to him that the first step would consist of calling a family council and then institute a Motion to open a protective regime to his mother. The Defendant also contends that Plaintiff quoted that his services would be charged at the flat rate of $900 plus taxes and costs.

[ 10 ] The Defendant shopped around for a notary. Plaintiff was apparently the one that quoted him the cheapest fee and he hired him as he had been recommended to him by an acquaintance. [ 11 ] Defendant confirmed Plaintiff’s mandate on December 3, 2013 [1] , his letter reading as follows: Dear Maître Senecal, Please accept this letter as the official request for you to start proceedings to have me, Mr. S. A. to take over the affaires (sic) of my mother, Mrs. G. B..

I have attached the information that you requested including, my mother’s ID, Proof of marriage (in German), a list of names of our family members, and my father’s name and address. (…) [ 12 ] On February 3, 2014, Plaintiff signed a Motion to obtain the convocation of a meeting of relatives (…) for the institution of protective supervision of [Defendant’s mother] [2] .

The Defendant reviewed the Motion and paid a $900 retainer to Plaintiff at that occasion. [ 13 ] Attached with that Motion were the Bar and the Notaries’ chamber certificates of search on the register of mandates given in anticipation of incapacity that Plaintiff had ordered and obtained, indicating that Defendant’s mother did not have a mandate given in anticipation of her incapacity. Both certificates were issued on September 24, 2013, prior to the Defendant confirming Plaintiff’s mandate. [ 14 ] The family council took place on April 14, 2014.

At that occasion, Plaintiff mentioned to the Defendant that his fee would be in the vicinity of $3,500. The Defendant did not want to discuss the matter in front of his siblings, asked to see an invoice, and agreed to pay an additional retainer of $1,500 in the meantime. [ 15 ] Following up to the family council, Plaintiff instituted a Motion for protective supervision of [Defendant’s mother], looking to have the Defendant appointed as her curator. [ 16 ] Judgment was rendered on May 5, 2014 [3] . Plaintiff forwarded his invoice in the amount of $5,723.79 to the Defendant on May 9, 2014.

Taking into account the advance payments made totalling $2,400, Plaintiff was asking for a payment of $3,323.79 [4] . [ 17 ] Plaintiff’s invoice does not provide any information as to how the fee of $3 , 750 (before taxes) was calculated: the hourly rates used and the time spent on the file are not specified . [ 18 ] In total, Plaintiff charged the Defendant $4,000 (plus taxes) for his fee and $1,124.79 for expenses incurred to execute the mandate. [ 19 ] After receiving Plaintiff’s invoice, arguing that Plaintiff had quoted him $900 for his fee, the Defendant asked for explanations.

Plaintiff’s response was as follows: (…) To probate a notarized mandate of incapacity my fees are 895.00 plus the searches plus court costs, plus bailiffs. Total around $1500.00 more or less. This was not your file. Starting from the searches finding no mandates, we have two motions to Court (instead of one): permission to have a Family Council and second the homologation of the deliberations of the family Council. Double the work, double the appointments, plus all the particulars of your own file as evidence of page one of your invoice.

When I ask you the second instalment of $1,500.00 I remember very well to have mention that I will be in the 3 thousands something. The rest are cost for which I have all the invoices and that I have already paid. We did not spear any efforts to get you the Judgment for the promess Middle of May and we got it. I thought that you would be satisfy with that. (sic) [ 20 ] On the same day, Sylvie Bérichon, Plaintiff’s assistant, wrote the following to the Defendant’s brother, C. A.: (…) For a normal case, as explained by Robert, if there is a mandate executed before a notary. There is less to do.

Most of the cases are, with bailiffs, court stamps and researches, it is turning around 1 500 $ to 1 800 $. Your case, is a family Council. More motions in Court. Longer and more complicated than with a mandate where the incapable person already appointed a mandatary. We started discussions with S. last summer. In the fall, S. provided with more details and we had more discussions. (…) After S. signed, he probably transferred the file to you and you are the person who exchanged all emails and conversations with me and the family. Because of your large family, this was not evident to make it work but we did.

You worked with me for a few months. It is harder to understand for S. [ the Defendant ] since he was not part of it. We had more bailiffs, registered mail and special couriers than in a normal case. More conversations, more family issues than usually.

(…) (sic) [ 21 ] To which the Defendant responded the following: (…) Notary Senecal talks about our case being double the work. Again if you knew what the family situation was why were we told the fee was $900? Also if it was double the work why is the final bill for you services ($400-$250-$3750) more than four times the original. As for the $3500 mentioned at the family council, I did not think that was the time or the place to discuss the bill especially since I did not have the final invoice. I wrote you a check for $1500 in good faith. Considering the above we will hold you to your original quote of $900.

Should you feel that the time spent exceeds the original estimate, please provide an updated invoice indicating how much time was spent on each activity and what your hourly rate is . (…) (Underscore added) [ 22 ] The Defendant does not contest the $250 charge relating to the search for a mandate given in case of incapacity, therefore accepting to pay Plaintiff $1,150 for his services and does not contest that he must pay the expenses in relation to the execution of Plaintiff’s mandate.

According to his calculation, he owes Plaintiff $18.54. [ 23 ] Claiming however that Plaintiff knew the extent of the work he would have to accomplish when he accepted the mandate and before he even started to work on it, Defendant contends that it was Plaintiff’s responsibility to inform him of the cost of his work.

Since Plaintiff led him to believe that his fee would be $900 and has failed to provide proper justification for the major increase in his fee, he contends that he should not have to pay over four times the price initially presented and accepted. [ 24 ] Offended by Defendant’s response and refusal to pay his invoice, Plaintiff did not provide the detail of the time devoted to his file nor his hourly fee until he filed his claim with the Court on November 19, 2014, providing the following details: (…) une procédure de curatelle sur requête pour la permission de tenir un conseil de famille et requête pour homologuer les délibérations du conseil de famille devaient être faites pour obtenir le jugement demandé.

Ce que nous avons fait, à frais beaucoup plus importants, vu la complexité du dossier, ce qui fut pourtant expliqué et accepté du défendeur. Le mandat dans ce dossier s’est échelonné sur environ 11 mois. Voici le détail des heures : PARALÉAL : 30h x 75$ et NOTAIRE : 6h x 250$ Vous trouverez le descriptif de ces heures sur la facture d’honoraire. (sic) [ 25 ] At the hearing, Plaintiff could not confirm how he calculated the hours he claims his assistant and himself spent on the file. He does not use an accounting software that compiles the time devoted to a file.

Allegedly, a note is made in the file further to an intervention with or for the client: it was not filed in support of Plaintiff’s claim. [ 26 ] Plaintiff contends that the amount of time his assistant and himself devoted to the file constitute a minimum amount of time they each spent working for the Defendant.

Neither he nor his assistant could provide accurate information on how they arrived at 30 hours of work for Sylvie Bérichon and six hours for him, but both sustained that the number of hours charged constitute a minimum. [ 27 ] At the insistence of the Court, Plaintiff declared that he met with the Defendant for the initial meeting for an hour and fifteen minutes (1h15min.), and attended the family council for one and a half hour (1h30min.). Although he also took time to review the proceedings, the homologation of the minutes of the family council did not require a Court appearance.

Plaintiff added that he personally went to the post office to mail documents in relation to Defendant’s file and contacted the Court’s clerk several times to confirm that all the documents were in the record for the Court to render judgment on the Motion for protective supervision. [ 28 ] Just as he did in June of 2014, the Defendant complained about the fact that the May 5 th , 2014 judgment did not appoint the substitute curator that the family had designated. [ 29 ] Plaintiff informed the Court that he did not provide a draft judgment to the Court and so he is not responsible for the mistake that has been made.

Since however his client refused to pay his invoice, he did not take any steps to have the judgment corrected. DECISION [ 30 ] The exercise of the profession of notary is governed by various laws , including the Code of ethics of notaries [5] which provides the following: 49. The fees charged by a notary must be fair and reasonable, warranted under the circumstances, and proportional to the services rendered , and in this regard the notary shall abstain from unfair competition with his colleagues.

In determining his fees, the notary shall take the following factors into account : (1) his experience or expertise; (2) the time required to execute the professional service ; (3) the degree of difficulty and importance of the service;

(4) the performance of services that are unusual or require exceptional competence or speed; (5) the degree of responsibility assumed; (6) the result obtained, where the matter may have involved special difficulties or where the outcome has been uncertain. 50. A notary shall explain his detailed statement of fees to his client as required . 51. Every notary shall inform his client of the approximate cost of his services . He shall not determine the amount of his fees without knowing all the elements required to establish the amount.

He must promptly inform his client where he anticipates that the approximate cost will be exceeded . 52. No notary shall demand advance payment of his fees; he may, however, require advances on his fees and disbursements. 53. No notary shall charge interest on outstanding accounts unless the client has been duly notified . The interest so charged must be reasonable. 54.

No notary shall deduct his fees and disbursements from a client's funds without the client's written authorization, regardless of the reason for which the funds are held . (Underscore added) [ 31 ] The Civil Code of Québec also provides the following in regard to the price or fee that can be charged to a client in the context of a contract for services: 2098.

A contract of enterprise or for services is a contract by which a person , the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. 2106. The price of the work or services is fixed by the contract , by usage or by law or on the basis of the value of the work carried out or the services rendered. 2107.

Where the price of the work or services is estimated at the time the contract is entered into, the contractor or the provider of the services shall justify any increase of the price. The client is bound to pay such increase only to the extent that it results from work, services or expenses that the contractor or the provider of services could not have foreseen at the time the contract was entered into. 2108.

Where the price is fixed according to the value of the work performed, the services rendered or the property supplied, the contractor or the provider of services is bound, at the request of the client, to give him an account of the work progress, of the services that have been rendered and of the expenses incurred so far. (Underscore added) [ 32 ] Interpreting the dispositions of the Code of ethics of advocates [6] in which dispositions similar to the ones cited above from the Code of ethics of notaries , the jurisprudence has long interpreted that a professional has the obligation to inform his client of the cost of his services, including but not limited to his hourly rate.

In addition, billing should not simply reflect a mathematical exercise of hours worked multiplied by an hourly rate.

The professional has the obligation to inform the client of the anticipated amount of the fees and provide justification when the actual amount exceeds what had been anticipated [7] . [ 33 ] It has also long been established that counsels must send interim invoices at regular intervals to allow clients to follow the financial development of their case; be attentive to the real needs of their customers and ensure they understand the value of the services rendered. [ 34 ] The time spent on a case is therefore clearly not the only factor to be considered in determining the fair and reasonable fees that can be charged in a given file, and multiplying the hourly rate announced by the number of hours worked in the file is insufficient to justify the fees charged [8] . [ 35 ] The fees are fair and reasonable if they are warranted by the circumstances, proportionate with the services rendered, take into account the value of the advantage provided to the client or disadvantage that it avoids him.

The professional must ensure that the client understands the ramifications of the services provided and the associated costs. [ 36 ] Just like attorneys, when they intend to charge for their services according to an hourly rate rather than a set rate, notaries must denounce the applicable hourly rate or rates and, when time to invoice their services comes, review the work accomplished and establish the proper amount to be billed.

They must exercise judgment as to the value of the particular services rendered [9] . [ 37 ] Interpreting the dispositions of the Code of ethics of notaries , Honorable Justice Nicole Malette, wrote the following in Julien c. Pageau [10] : [67] La Cour d'appel 2 a énoncé de la manière suivante le principe qui sous-tend ces exigences, lesquelles sont sensiblement les mêmes dans le Code de déontologie des avocats (c. B-1, r.1) : Le client n'a-t-il pas intérêt à connaître de façon assez concrète à quoi il doit s'engager? Cette connaissance lui permettra de prendre une décision éclairée.

Parfois, il arrivera à la conclusion que le jeu n'en vaut pas la chandelle. Parfois, il croira bon de consulter quelqu'un d'autre. De toute façon, il est raisonnable qu'il soit placé dans une position de décider en connaissance de cause. Ainsi, il n'y aura pas ou peu de surprise plus tard.

[68] Notre collègue, le juge Gabriel De Pokomandy, rappelant cette obligation de renseignement, a ajouté cet élément : « En plus, lorsque, comme dans la présente instance, le mandat se prolonge sur une période de temps assez longue, l'avocat doit faire ensorte que le client soit périodiquement informé de l'état de sa dette en honoraires professionnels, soit par l'envoi des comptesintérimaires ou par une information donnée de quelque autre façon dans le but d'éviter des mauvaises surprises d'un compte final d'honoraires élevé, avec les difficultés qui peuvent en découler.» (Notre souligné). »3 [69] Enfin, comme le soulignait le juge Jean Normand de la Cour supérieure : [37] Il n'est pas facile pour le praticien d'estimer à l'avance le temps qui sera nécessaire à l'accomplissement du mandat confié par sonclient.

Néanmoins, il n'est pas suffisant d'additionner les heures travaillées et de multiplier par le facteur des taux applicables, ceux-cifussent-ils raisonnables par ailleurs, pour justifier que les honoraires soient justes. [38] Dans Desjardins, Ducharme, Stein, Monast c. Empress Jewellery (Canada) Inc.6, M. le juge Hilton, alors à cette cour, formulaitcertains commentaires que le présent Tribunal endosse sans réserve : Billing on an hourly basis, however, should not be effected as a simple mathematical process whereby the number of hours is multipliedby the hourly rate to arrive at the amount of the fee.

The practice of law is a profession that is surely not the equivalent of a merchantselling a commodity for a price based on its number and weight. Hourly billing still requires a lawyer to determine, most importantly and above all, what the value is to the client of the servicesperformed for which the billing occurs.

It is not tantamount to simply filing in the amount of a blank cheque already signed by the client7. (…) Thus, the lawyer must carefully review the charges and establish a proper amount to be billed, and in se doing, exercise his or herjudgment as to what the value is of the particular services that have been rendered. That, after all, is the essence of what it means to be aprofessional. The determination of the value of a lawyer's services cannot be established as the result of a mindless exercise that can beperformed by anyone with access to a computer or a calculator _________________________ 2.

Mathieu et Als c. Lorne Marchand, (QC CA), [1986] R.D.J. 296; 3. Constantine c. Feldman, C.Q. Montréal, (QC CQ), 500-22-040409-990, 2001-04-10, AZ-50085354 6 C.S. Montréal (QC CS), 500-05-014121-964, 1999-05-20, REJB 1999-12766, AZ-99021741. 7 Ibid., par. 65-66 et 69.» [38] The Court of Appeal decided that the consequence of counsel’s failure to respect the rules relating to the determination of feesmust be the reduction of his fees and « le quantum de la diminution peut varier d’un cas à l’autre selon les éléments et circonstancespropres à chaque espèce.

C’est affaire d’appréciation et d’équilibre »[11]. [39] Plaintiff argued that his mandate in regards to Defendant’s file lasted eleven months. The uncontested evidence howeverdemonstrated that although the Defendant consulted with Plaintiff in the summer of 2013, he confirmed his mandate on December 3,2013.

Judgment having been rendered on May 5, 2014, the mandate could not have lasted more than five months. [40] The documentary evidence suggests that prior to Defendant confirming Plaintiff’s mandate, sometime in the month of September2013, the later requested a search on the relevant registries to confirm whether Defendant’s mother had executed a mandate given in caseof her incapacity, the result of which he obtained on or around September 24, 2013. At that point, waiting for the Defendant to confirmhis mandate, Plaintiff could have invoiced the services rendered.

He chose not to. [41] Contrary to Plaintiff’s contention, he knew when he accepted the mandate from the Defendant in December of 2013 that hewould have to proceed with a family council. [42] In February of 2014, Plaintiff could have gone through the detail of his fees with the Defendant when he had him sign theAffidavit in support of his Motion and had him pay the $900 retainer.

He had another opportunity to do so on April 14, 2014, when heconfirmed for the first time the amount of his fee to the Defendant and was met with both the cold response that it was not the time todiscuss the matter and the request to have a bill sent. He again chose not to. [43] In April 2014, before filing the Motion for protective supervision, Plaintiff should have sent to the Defendant the invoice herequested when he was informed that Plaintiff’s fee would be around three thousand dollars.

The Defendant’s request and refusal todiscuss the fee at that point was an indication that he had a problem with Plaintiff’s fee. [44] In fact, right from September of 2013, Plaintiff knew the ramification of his mandate and should have notified the Defendant thathe would not bill his services at a flat fee but rather charge the client for his time and that of his assistant by the hour. He should alsohave specified what the applicable rates were. [45] One thing is certain, Plaintiff cannot charge the Defendant for having gone to the Post-office.

He also cannot charge theDefendant for having called the Court house when there is no evidence that that was needed. [46] Other than stating that in his practice he generally proceeds by motion in homologation of a mandate, Plaintiff did not explain

how Defendant’s file was more complex than other files. [ 47 ] It appears that what was complicated in the file was that the Defendant had a large family scattered around the world, that all members wanted to be involved, some demanded by their actions to be notified of the proceedings by bailiff and threatened not to collaborate. [ 48 ] Although managing uncooperative family members can be time consuming, the legal services rendered are not more complex, proof being that this aspect of the file was handled by the assistant, not the notary. [ 49 ] While it is probable that Plaintiff worked six hours on Defendant’s file, not only did he fail to establish with a minimum of certainty the time his assistant devoted to the file, but he failed to validly justify charging the Defendant four times the quoted price. [ 50 ] This ascertainment does not however settle the fate of Plaintiff’s claim. [ 51 ] Indeed, the Defendant was made aware in April of 2014 that Plaintiff anticipated to charge him $3,000 for his services and chose not to indicate that he did not intend to accept what he considered was an unjustified increase of the fee.

Because he needed the judgment appointing him as curator, he led Plaintiff to believe that he would not contest his fee in order to have him continue with the next motion that needed to be filed. [ 52 ] By April 14, 2014, the Defendant knew that Plaintiff’s fee was over $900 and accepted the principle because he had paid by then a total retainer of $2,400. [ 53 ] However, in light of the applicable principles, the Court concludes that the Defendant did not agree to pay Plaintiff’s hourly rates nor a fee of $4,000 for the services rendered.

Since the evidence presented does not justify the amount charged, the Court reduces Plaintiff’s fee to $1,800 plus expenses, taxes and costs, for a total of $3,481.78 detailed as follows: Searches at the Bord of Notary and in the Québec Bar $250 Fee for the other services rendered (detailed in Plaintiff’s invoice) $1,800 GST $102.50 QST $204.49 Expenses (detailed in Plaintiff’s invoice) $1,124.79 TOTAL $3,481.78 Less retainer ($2,400) Balance due $1,081.78 [ 54 ] In view of the result and the reasons supporting the judgment , each party shall bear his own Court costs. [ 55 ] WHEREFORE, THE COURT: [ 56 ] GRANTS the claim in part; [ 57 ] CONDEMNS the Defendant to pay to the Plaintiff $1,081.78 plus the legal interest and the additional indemnity provided for by

article 1619 of the Civil Code of Québec since June 9, 2014. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: September 29, 2015 Une

partie peut obtenir la traduction en langue française du présent jugement en adressant une demande écrite à cet effet à la Directrice du secteur civil du Palais de justice de Montréal. [6] RLRQ,

chapitre B-1, r. 3.