2013 QCCQ 12452, 2013 QCCQ 12452

Aspler c. Rotrand COURT OF QUEBEC 2013 QCCQ 12452 CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N°: 500-22-186764-117 DATE: October 8, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ PHILIP ASPLER Plaintiff v. MARVIN ROTRAND Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I.

PARTIES AND PROCEEDINGS [ 1 ] Philip Aspler, advocate, sues a former client, Marvin Rotrand, a Montreal City Councillor, for fees and disbursements relating to his services in defending Mr Rotrand’s interests in a libel action brought against him in May 2006. [ 2 ] The balance claimed is $ 13,407.09 for the period from August 1996 to January 2011 (P-1, P-1A). [ 3 ] In addition, the claim includes an unpaid invoice of $ 656.11 (P-6) for services in miscellaneous small matters carried out between December 2008 and March 2009. [ 4 ] The total for these two accounts is $ 14,063.20 [ 5 ] Mr Rotrand’s defence can be broken down as follows:

a) for services rendered throughout 2006:

i) the bills issued for that period were paid in full and, subsidiarily: ii) the claim is prescribed

b) for services allegedly rendered in 1997, 1998, 2002, 2003, 2004 and 2005, if any were performed:

i) there was no mandate given and, subsidiarily, ii) the claim is prescribed

c) for services rendered in 2010 and 2011, these were never required nor authorised. [ 6 ] Maître Aspler joins issue by asserting that services rendered from August 2006 onward to January 2011 were part of a continuing mandate and have remained unpaid. [ 7 ] On the prescription issue, he asserts that these fees only became payable in 2011 because of a condition precedent agreed to between him and his client according to which payment of the fees would be suspended until a later date when the City of Montreal would accept to assume the legal fees associated with the case under legislation applying to suits against City Councillors.

II. ISSUES [ 8 ] On the questions relating to fees for representation in the libel action, the Court must resolve the following questions: 1. Is the claim for fees and disbursements prescribed in whole or in part?

2. Did these amounts become billable in 2011 because the City of Montreal decided to indemnify Mr Rotrand for his legal expenses already incurred? 3. Is the claim unrecoverable because the services were not requested and authorised? 4. Are the fees claimed for fair and reasonable? 5. What amounts, if any, already received are to be imputed to these fees? [ 9 ] And, on the amount of $ 656.11: 6. Are any matters prescribed? 7. Are the fees fair and reasonable in light of the services rendered? III.

FACTS The libel case [ 10 ] On May 28, 1996 Mr Rotrand was sued by Legault et Touchette Inc. and Jean Legault in connection with statements he allegedly made concerning these Plaintiffs who had obtained contracts for the City of Montreal to carry out works at the “ Centre de tri et d’élimination des déchets ” formerly known as the Miron Quarry. [ 11 ] The damages claimed were $ 1,750,000 for each Plaintiff. [ 12 ] At the time, Mr Rotrand was one of two members of a minority party that sat in opposition to the Bourque administration in city council. [ 13 ] Maître Aspler appeared on this behalf and filed a motion for particulars and then conducted an examination before plea.

The active part of his representation culminated with a ruling of a judge in chambers on several objections that had been noted at the examination, (P-3, procès-verbal du 23 décembre 1996 ) Changes in municipal law [ 14 ] At the time the libel action was initiated, a bill (Bill 24) to amend the cities and towns act and the Municipal Code had been presented in the National Assembly whereby municipal bodies would be under a duty to provide financial support to elected municipal representatives and civil servants who were sued in relation to

an act or omission occurring in the exercise of their duties. The part of the new legislation relevant to Mr Rotrand’s situation is

article 604.6 of the Cities and Towns Act. [ 15 ] When the law came into force on June 20, 1996, Mr Rotrand requested the application of these articles to the libel case taken against him. The executive committee resolved not to apply the provisions of the new law to this case, presumably because it deemed the law not to be with retroactive effect.

Instructions and an alleged agreement as to fees [ 16 ] Maître Aspler alleges and testifies that he reached an agreement with Mr Rotrand that all of his fees would eventually be paid when the city changed its decision and accepted to indemnify Mr Rotrand for his legal expenses. Maître Aspler refers to this as a “condition precedent”. [ 17 ] Payments were made on account of his fees, according to Maître Aspler, subject to the agreement. [ 18 ] Mr Rotrand denies the existence of such an agreement. His position is that the payments made in 2006 and 2007 are a complete payment for the work billed.

His testimony is that, while he had told Maître Aspler from the outset to keep his litigation activities to a minimum, as of the end of 2006, he gave instructions to Maître Aspler to do nothing further in the case. “Can it”, as he said in his testimony. The litigation becomes inactive [ 19 ] The decision on the objections in the libel case coincided with the beginning of a long period of inactivity in the file. The inactivity became permanent. The Plaintiffs never resurfaced.

Mr Rotrand testifies that in 2002, Jean Legault informed him, informally, that he would never proceed further with the case and that he passed this information on to Maître Aspler. [ 20 ] Mr Aspler remained as attorney of record. He let sleeping dogs lie. From time to time he would bring the file forward and check the plumitif to confirm to Mr Rotrand in writing that nothing had transpired. Often he would enclose jurisprudence of interest in the field of libel cases.

As of the letter, dated August 13, 2002 (P-5), he began recommending to Mr Rotrand to ask his colleagues who were now in power on the city council, to get funding for the litigation.

He also recommended that the status of governing party be used to obtain incriminating information against the Plaintiffs concerning the Miron Quarry so that, “armed with a suitable war chest and sufficient incriminating information, adverse to the interest of Legault & Touchette Inc. and Legault himself, mandate the undersigned to induce the other party to discontinue its procedures.” [ 21 ] The follow up and recommendations along the same lines continued periodically up to 2005, and perhaps ofter that date, though the series of letters produced ends with the letter of February 11, 2005. [ 22 ] In 2010, it came to Maître Aspler’s attention that Legault Touchette Inc. had been dissolved.

In fact, the “ radiation d’office ” was effective, according the CIDREQ, on December 23, 2008. The city changes its approach [ 23 ] Maître Aspler testified that in January 2011 he learned, through a conversation with Maître Cyr, one of the city’s attorneys, that the city had decided to take up Mr Rotrand’s defence. Mr Rotrand’s attorney objected to the admissibility of this testimony to prove that, in fact the city had made that decision. The objection was maintained, but the testimony does establish Maître Aspler’s reason, according to what he believed the

city’s position to be, to issue an account for services rendered since his last interim billing. In his understanding, the condition precedent had now been met and it was time to issue an account. [ 24 ] The bill he issued, invoice No. 11-014 accounted for work in progress from August 5, 1996 to January 27, 2011. There are three versions of this bill, dated February 1, 2011. The first (D-6) adds up to fees of $ 12,125.00, less payments on account of $ 2,000, $ 1,000 and $ 627.50 ($ 627.50) for a net billable of $ 8,597.50 to which is added taxes and disbursements for a total of $ 9,928.36.

The copy produced is a fax copy received at the “Cabinet du Maître”. [ 25 ] An amended version, No. 11-104A (P-1, D-6) was sent by email attachment on February 1, 2011 to Mr Rotrand and on February 2, 2011 Louis-Pascal Cyr, the “ Directeur adjoint ” of the mayor’s office. [ 26 ] The amount is slightly higher, $ 10,529.32 because the partial payment for $ 627.50 is deleted. [ 27 ] Maître Aspler issued a demand letter dated April 14, 2011 (P-7) with reference to this invoice and the other invoice claimed in this action, no. 11-028 dated March 4, 2011 in the amount of $ 656.11. [ 28 ] The third version No 11-104B (P-1A) was generated during the proceedings.

It deletes the partial payments of $ 2,000 and $ 1,000, bringing the invoice total to $ 13,947.09. [ 29 ] Maître Aspler testified that he made these corrections in reconciling accounts and attributing partial payments to other matters he had carried out for Mr Rotrand over the years. [ 30 ] A box of file materials was delivered by Maître Aspler’s office to Mr Gilles Berger, on behalf of Mr Rotrand (P-8).

The contestation of the invoice [ 31 ] On February 21, the attorneys in the employ of the City of Montreal wrote to Maître Aspler on behalf of Mr Rotrand to state the latter’s position, consistent with the position taken in these proceedings; essentially that the claim is for services that were not required and that it is prescribed (D-7). [ 32 ] These attorneys filed a substitution of attorneys in the libel action on March 8, 2011. The bill of costs [ 33 ] Maître Aspler presented a bill of costs pursuant to

article 252 C.C.P. claiming, in addition to the honorarium of $ 325 for the disposal of an action before plea, and disbursements, the amount of $ 34,000 as the special honorarium of 1% of the amount of the claim in excess of $ 100,000. [ 34 ] Contested by Mr Rotrand’s new attorneys, the taxation was refused on the ground that the substitution was not the equivalent of a revocation of mandate as contemplated by

article 252 C.P.C. Bills and accommodation bills, Payments received and imputed [ 35 ] During the active period of the litigation, bills were issued, chiefly to various individuals and an association as well as to Mr Rotrand himself. Some of these bills are detailed so that it is possible to trace chronologically the work in progress. [ 36 ] When the bills were issued to parties other than Mr Rotrand personally, it was because third parties had agreed to cover his fees. [ 37 ] Mr Rotrand’s allegation is that he paid a total of $ 14,548.86 on six bills, as follows: 25.

De fait, il ne s’est strictement plus rien passé dans le dossier après la fin décembre 1996; après que le défendeur ait veillé à acquitter six factures d’honoraires totalisant 14 548.86$, à savoir: a) 3 juin 1996 2 279.10 $ b) 20 juin 1996 854,66 $ c) 1 er août 1996 7 281,39 $ d) 19 septembre 1996 2 279,10 $ e) 15 novembre 1996 1 139,55 $ f) 28 novembre 1996 715,06 $ [ 38 ] There are two types of invoices: those that detail work in progress or disbursements and those that appear to be merely accommodation invoices, breaking up the fees aggregated in the detailed invoices. [ 39 ] The following (P-12) are, substantively, the true invoices: NUMBER DATE PERIOD AMOUNT 96-142 June 19., 1996 May 29, 1996 to June 19, 1996 $ 5,184.95 96-168 Aug 1 1996 June 17, 1996 to July 30, 1996 $ 7,281.39 96-246 Nov 28, 1996 Stenography $ 715.06

$ 13,181.40 [ 40 ] The cheques that are on record establish that Mr Rotrand and the friends that were helping him out paid a total of $ 7,748.80. [ 41 ] The following accommodation invoices, break up, in part, the first two invoices above: Number Date Person billed Amount 96-149 June 19, 1996 Coalition Démocratique Ecologique $ 149.48 96-149 June 20, 1996 Marcel Sevigny $ 569.78 96-150 June 20, 1996 Jeremy Searle $ 569.78 96-151 June 20, 1996 Marvin Rotrand $ 854.66 96-196 September 19, 1996 Marvin Rotrand $ 2,279.10 96-243 November 15, 1996 Marvin Rotrand $ 1,139.55 96-258 December 23,1996 Coalition Démocratique Ecologique $ 1424.44 Total: $ 7034.79 [ 42 ] The difference between the true billing and the accommodation billing, $ 5,431.55 ($ 4,700 before tax) was, according to Maître Aspler, written off. [ 43 ] A number of other matters were handled for Mr Rotrand in the relevant period.

Some of these are reflected in the amounts Mr Rotrand alleges to have paid in the amounts listed in paragraph 25

a) to f). [ 44 ] One such matter, for which payment did not accrue, is invoice 11-028 dated March 4, 2011. Each of the time entries, December 6, 2008, December 8 2008, February 15, 2009 and March 2, 2009 relate in some way to Mr Rotrand’s father.

The first two relate to a pension from the government of Germany, the third relates to a curatorship and the last, an issue relating to the Canada pension. [ 45 ] Mr Rotrand does not plead specifically to this account, only to the accounts related to the Legault Touchette matter. [ 46 ] In his testimony, Mr Rotrand reduces the involvement of Maître Aspler to signing a form and states that he thought it would be free, because of the close personal relationship: “we did things for each other”. He points to the fact that no bill was sent for three years as indicative of the intention not to bill. IV.

ANALYSIS [ 47 ] The Court turns now to the issues: Suspension of billing and prescription Two types of professional work [ 48 ] Part of the services rendered up until the point in time when the file became inactive was not billed until 2011. Maître Aspler accepted partial payment for the work performed up to July 31, 1996. For the payments accepted, he issued bills that were entered into his accounting system. The amounts over and above these paid amounts were recorded and billed, but never officially entered.

This was tantamount to “writing off” approximately $ 4,700 plus tax. [ 49 ] In issue are fees and disbursements of two types. Firstly, there is the work in progress for the defence from August 1, 1996 to the judgement rendered in December 1996 on the objections made during examination before plea. [ 50 ] This is a substantial amount, approximately $ 10,000 of the $ 12,125 of time mentioned in the account: over 80% of the bill. It represents litigation time: attendance at the examination and at the hearing on objections and extensive preparation.

It cannot be said that this was not authorised: it is the essence of the defence mandate at that time. [ 51 ] After the file became inactive, no litigation was carried out. It is not in issue that Maître Aspler was to do nothing, to “let sleeping dogs lie”. [ 52 ] This second part of the bill, approximately 8 hours over 14 years, consists of reporting to the client that nothing has been done by either party. While the lawyer had a professional duty to give these reports, so long as he remained attorney of record, he was not performing a professional service apart from the report to say that he has done nothing.

Exceptionally, he reported on the dissolution of the corporate Plaintiff, something that may or may not have had an impact, if the person behind the corporation had intended to continue with the litigation, which he did not. [ 53 ] The research and other work connected with the option of bringing a motion in peremption, carried out at the very end of the narrative, in the early part of 2011 was done despite there being no instructions to do so. It was not part of any professional services agreement, but rather an

initiative taken by Maître Aspler.

The suspension of billing [ 54 ] Maître Aspler’s version of the facts is that he agreed to suspend billing, beyond that which was already billed in the accommodation bills and to bill it and any other fees only when the City of Montreal would change its position and agree to support Mr Rotrand in the litigation, assuming the payment of bills that had been suspended. [ 55 ] But, Mr Rotrand denies having ever made such an agreement. [ 56 ] Paradoxically, this agreement, if in fact it existed, would prevent Maître Aspler from claiming any fees in the present case, because he has not established with probative evidence the other part of the equation, that the City has in fact made such a decision.

The substitution of attorneys in favour of the City’s in-house counsel establishes, presumptively, a prospective decision to act ad litem in the still-inactive file, but it does not give evidence of a decision of retro-active effect to indemnify Mr Rotrand for a previous liability, incurred at the time the City had resolved not to support him financially in his defence. [ 57 ] To prove the accomplishment of the “condition precedent”, it would have been necessary to produce a resolution of the Executive Committee, or something of equivalent probative value, perhaps a letter emanating from counsel acting on the City’s behalf to confirm the existence of such a resolution.

Mr Aspler’s testimony on the point establishes his belief that the City had agreed to “take over this litigation”, as Maître Aspler states in his letter of January 27, 2011, but it does not establish with a sufficient probative value that the City committed to paying his fees. [ 58 ] The existence of the agreement, as is the case for the accomplishment of the condition that is its essential feature, is a key element of the Plaintiff’s case, and the Plaintiff therefore has the burden of proving it. It is the sort of agreement that one would expect to see confirmed in writing.

While Maître Aspler included in several of his letters (P-5) an admonition to Mr Rotrand to attempt to change the City’s decision so that the litigation could be funded, which would have furthered Maître Aspler’s own interest as well, there is no reference to any agreement. The admonition is equally consistent with Mr Rotrand’s version, that no such agreement had been made and that no fees would be generated, because Maître Aspler was to “can it”.

The Court sees nothing in the evidence that would show Mr Rotrand’s version to be less plausible that that of Mr Aspler and, as witnesses, there was no element that would show Mr Rotrand to be less credible that Maître Aspler. [ 59 ] Given the burden of proof, the existence of the agreement is therefore not proved on the balance of probabilities. It becomes necessary to consider the defence of prescription. Prescription [ 60 ] While the Civil Code of Lower Canada,

article 2260, al. 1, provided a precise point of departure for prescription of claims of advocates, namely the judgment, the Civil Code of Quebec applies the more general rule of the moment when the claim first becomes exigible. [ 61 ] Jurisprudence has applied the rule in a way that is reminiscent of the previous rule, as applied in cases [1] where there was a contract of professional services that did not involve obtaining a judgment, determining the beginning of the prescriptive period as the end of the mandate, or, to be more precise, the moment when the last service in connection with the matter is provided [2] .

This point of departure does not depend upon the billing, as it has been pointed out that the more negligent conduct of not billing in a timely manner should not lengthen the period of prescription as compared with the more diligent conduct of billing promptly [3] . [ 62 ] The question of determining precisely the end of the mandate will turn on the facts of each case. In the present matter, there is a procedural continuum throughout because the Plaintiff is the attorney of record at all relevant times.

Despite this procedural continuum, there are two distinct phases, which, in the Court’s opinion are two different mandates for the purposes of applying prescription. The first was to defend the action by taking the usual litigation steps: the motion for particulars, examination before plea, arguing objections and the like. Had this mandate continued, a defence would have been filed and the case would have eventually been inscribed for proof and hearing and made ready for trial.

If that had been the case, the unbilled work done in 1996 would not begin to be subject to prescription until judgment or settlement, as the case may be. [ 63 ] At a relevant point in 1997, it was decided that, in light of the Plaintiff’s inaction, nothing more would be done in furtherance of the defence. The fact that the billing ceased tended to confirm that the work was at an end. It could have also implied that any work in progress not billed, was part of the “write off”. [ 64 ] New instructions were given, and respected: to do nothing. Mr Rotrand’s testimony is very clear and convincing on that point.

The nature of the second mandate was different from the first: it involved no services, no advice and no responsibility, only the passive monitoring of the situation should it change. By maintaining his status as attorney of record, Maître Aspler need do nothing: if the Plaintiffs reactivated the file, he would be the first to know, because he would receive service of a notice of presentation of a motion or inscription, or perhaps a letter first, asking him to file a defence.

Maître Aspler testified that he thought about peremption. [4] According to Mr Rotrand’s instructions, however, he was wise not to recommend such a step, because it would encourage the Plaintiffs to file a useful proceeding in order to prevent the dismissal of their suit for want of prosecution. He would not be acting in the client’s interests. So he did not seek instructions to bring a motion in peremption of suit.

He did nothing. [ 65 ] The letters sent from time to time to report on the lack of activity were not a bad idea: they would satisfy the requirement that an advocate communicate regularly with his client, but they did not constitute the furtherance of the initial litigation mandate, which had been terminated. They could also be seen as a courtesy.

From Mr Rotrand’s point of view they were solicitations, because he was being asked to promote his attorney’s interests by getting funding so that the file could go back into defence mode. [ 66 ] On those facts, the Court finds that the charges for the work done up until the judgment on the objections are prescribed. [ 67 ] On the other hand, if the passive monitoring of the file gives rise to fees, these are not prescribed. Fair and reasonable fees [ 68 ] There was no specific fee arrangement for this mandate and no budgetary expectation. Mr Rotrand was taken by surprise by the billing.

This is a situation where the Court should review the quantification and assess a fair and reasonable fee. [5] [ 69 ] The periodic review of the file from 1997 to 2011 accounts for approximately eight hours of billable time. This could have been done at

the rates of a paralegal or student for the most part, with some supervision by a more senior person. The standardised increment of 0.25 hours is not unreasonable, given the time it takes to bring a file forward, check the plumitif and write a letter, and diarise the file again. An average rate of $100 would have been appropriate for the blended time of the lawyer and paralegal or student. [ 70 ] The more substantial work done as of January 2011, looking into the possibility of a motion to dismiss was not called for because no instructions were obtained to do it. This time is not billable.

On the other hand, 1.75 hours spent to ready the file for transfer and the mechanics of dealing with the transfer are not unreasonable, with the same considerations as to rate. [ 71 ] The disbursements are in order. [ 72 ] The computation is, fees $ 975, disbursements $ 117.32 plus tax at the 2011 rates, 5% and 8.5 %. The total is $ 1,244.43. Imputation [ 73 ] Maître Aspler’s correction of the first statement, where payments were accrued to the billing relating to the libel action, is plausible.

It makes sense and is consistent with Mr Rotrand’s position, that if he received any payments, they would have been imputed to bills for other matters that are not in issue in this case, not against the 2011 bill for work done in connection with the libel action. [ 74 ] Therefore, there is no payment demonstrated with respect to the amounts in issue.

Bill n° 11-028 [ 75 ] On the issue relating to the handling of matters related to Mr Rotrand’s father’s, the fact that the parties were friends does not create a presumption that there was no intention to deal with this as a billable matter. [ 76 ] When the action was taken on November 7, 2011, the fees were not prescribed, as the earliest time entry was December 6, 2008. [ 77 ] As to quantum, the amounts are very small and the Court has no reason to doubt the accuracy of the charges. The amount of the bill is in order: $ 656.11.

FOR THESE REASONS THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $ 1,900.54 together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from April 14, 2011. THE WHOLE with costs. __________________________________ DAVID L. CAMERON, J.C.Q. Me Baron Abrams GLENN M. DERSTENFELD Attorney for the Plaintiff Me Chantale Beaudin CHAREST, GAGNIER, BIRON, DAGENAIS Attorney for the Defendant Date of hearings: April 10 & 11, 2013