2022 QCCQ 3874, 2022 QCCQ 3874

Larouche et Associés Avocats inc. c. Singh 2022 QCCQ 3874 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-161162-195 DATE: May 23, 2022 ______________________________________________________________________ BY THE HONORABLE CAtherine Pilon, J.C.Q. ______________________________________________________________________ LAROUCHE ET ASSOCIÉS AVOCATS INC. Plaintiff v.

BALBIR SINGH Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims $9,402.93 from the Defendant for unpaid legal services. [ 2 ] The Defendant contests the claim on the basis that he was not satisfied by the services rendered by the Plaintiff. [ 3 ] The Court also raised at the hearing a question in relation to prescription, i.e. whether the claim was time-barred. Questions at issue

a) Is the claim prescribed?

b) Are the legal fees justified? Context [ 4 ] The Defendant retained the services of the Plaintiff in November 2013 to represent him in legal proceedings he had undertaken in 2001 against various defendants asking for reimbursement of a loan. The retainer provided for fees at an hourly rate and an interest fee of 18% on late payments. [ 5 ] Apart from an examination on discovery of the Defendant, the proceedings were basically stagnant until he retained the services of the Plaintiff.

Once it became involved, the bulk of the work performed by the Plaintiff’s lawyers was to help the Defendant provide the undertakings following his examination on discovery. [ 6 ] In 2016, the defendants brought a motion to dismiss the Defendant’s lawsuit pursuant to

article 51 of the Code of Civil Procedure . They argued that 15 years had elapsed since the claim was undertaken without any significant procedural steps since, and that this delay was abusive and improper. [ 7 ] On September 13, 2016, Justice Karen Kear-Jodoin granted the defendant’s motion and dismissed the Defendant’s claim. [ 8 ] The Defendant did not appeal this judgment. [ 9 ] Until 2016, the Defendant had regularly paid all of the invoices from the Plaintiff.

However, he started making partial payments in the beginning of 2016, and stopped paying altogether once the judgement dismissing his action was rendered. [ 10 ] The last payment by the Defendant to the Plaintiff was a payment of interest on September 15, 2016. [ 11 ] The Plaintiff’s claim before this Court was undertaken on September 11, 2019. The unpaid invoices range from January 20, 2016 to November 15, 2018. Analysis

a) Is the claim prescribed? [ 12 ] According to

article 2925 of the Civil Code of Quebec (the “ CCQ ”), a personal action is prescribed by three years: 2925 . An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [ 13 ]

Article 2898 CCQ further provides that acknowledgment of a right may interrupt prescription: 2898 . Acknowledgment of a right, as well as renunciation of the benefit of the time elapsed, interrupts prescription.

[ 14 ] When prescription is interrupted, it begins to run again for the same length: 2903 .

After its interruption, prescription begins to run again for the same period. [ 15 ] The claim having been brought on September 11, 2019, raises the question of prescription for the invoices prior to September 11, 2016 and the impact of the September 15, 2016 payment of interest. [ 16 ] Both case law and doctrine consider that a payment of interest constitutes an acknowledgment of debt and therefore interrupts prescription. [1] [ 17 ] As a result, when the Defendant paid interest on September 15, 2016, he acknowledged his debt which interrupted prescription. It began to run again until September 15, 2019.

Seeing that the claim was instituted on September 11, 2019, it is not prescribed.

b) Are the legal fees justified? [ 18 ] Pursuant to the Code of Professional Conduct of Lawyers [2] , fees charged by lawyers must be reasonable and fair: 101 . A lawyer must charge and accept fair and reasonable fees and disbursements. The same applies to advances he asks the client to provide. [ 19 ] Various criteria are to be analyzed to determine whether fees are fair and reasonable: 102 . The fees are fair and reasonable if they are warranted by the circumstances and proportionate to the professional services rendered.

In determining his fees, the lawyer must in particular take the following factors into account: (1) experience; (2) the time and effort required and devoted to the matter; (3) the difficulty of the matter; (4) the importance of the matter to the client; (5) the responsibility assumed; (6) the performance of unusual professional services or professional services requiring special skills or exceptional speed; (7) the result obtained; (8) the fees prescribed by statute or regulation; and (9) the disbursements, fees, commissions, rebates, costs or other benefits that are or will be paid by a third party with respect to the mandate the client gave him. [ 20 ] The Defendant essentially blames the Plaintiff and its lawyers for not having represented him properly by speaking to the other parties without his consent and not having filed documents to contest the motion to dismiss his lawsuit. [ 21 ] The Court is the view that these arguments unfounded. [ 22 ] The Defendant was not in a position to explain at trial what damageable conversation would have taken place with the other parties.

In any event, it is not out of the ordinary for lawyers to speak to opposing counsel without necessarily obtaining their client’s authorization, as long as no admissions are made. [ 23 ] In respect of the motion to dismiss, providing additional documentation would not have made a difference. The Superior Court judge had to analyze the matter as it then was, additional documents would not have changed the fact that the file had been dormant for 15 years.

This Court cannot see how this would have constituted a professional error which would justify not paying the legal fees. [ 24 ] The Defendant further argued that the Plaintiff’s lawyers should have advised him that he should not reactivate his file and that it would be dismissed. The evidence is to the contrary. He was informed at the outset that there would be difficulties and he willingly decided continue the matter. [ 25 ] A review of the invoices and the time spent on the matter shows that the fees charged by the Plaintiff were fair and reasonable.

The Defendant attempted to raise that too much time was spent on various elements, but was incapable to pinpoint any such charges. [ 26 ] It appeared clearly to the Court that the only reason the Defendant refuses to pay the Plaintiff for its fees is that his lawsuit was dismissed. This is not a valid ground. FOR THESE REASONS, THE COURT: [ 27 ] GRANTS demand of the Plaintiff; [ 28 ] CONDEMNS the Defendant to pay the Plaintiff $9,402.93 with interest at the annual rate of 18% since the demand letter of November 15, 2018; [ 29 ] CONDEMNS the Defendant to pay the Plaintiff the court costs of $205.

__________________________________ CATHERINE PILON, J.C.Q. Hearing date : March 24, 2022