2017 QCCQ 13772, 2017 QCCQ 13772

Goldberg c. Kaufman 2017 QCCQ 13772 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-152317-162 DATE: November 21, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ NORMAN GOLDBERG Plaintiff v. CLAIRE KAUFMAN and TRENDEX HOME DESIGNS INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Norman Goldberg claims $3,483.74 from Claire Kaufman and Trendex Home Designs Inc. (Trendex) for unpaid legal services. [ 2 ] The Defendants contest the claim. They argue that no amount is owed on the invoice for which Mr. Goldberg is claiming since they allege they incurred damages as a result of the poor quality of services performed by Mtre Goldberg in a Rental Board mandate he was handling for Mrs. Kaufman.

Moreover, they further claim they owe nothing on account of the fact that Mtre. Goldberg was paid an advance from the Defendants to conduct the trial in the Rental Board mandate, yet his mandate was revoked prior to the trial and thus he must repay a portion of the advance. Questions in Dispute

a) Have the Defendants proven that Mtre Goldberg breached his obligations in the execution of the Rental Board Mandate, and if so, what damages have they incurred?

b) What amount, if any, is Mtre Goldberg obliged to repay to the Defendants pursuant to paragraph 2 of

article 2129 of the Civil Code of Québec (C.C.Q.)? Context [ 3 ] Mrs. Kaufman and her business Trendex, were long standing clients of Mtre Goldberg and conducted business together for over 40 years. [ 4 ] In 2012, Mrs. Kaufman retained Mtre Goldberg to represent her in defense to a lawsuit filed against her by Les Ventes Aluminium Cartier Canada Ltd (Aluminium Cartier) before the Court of Québec. [1] Aluminium Cartier was claiming $30,216 from Mrs. Kaufman for work done at her residence. [2] [ 5 ] The trial took place on November 12 and 13, 2014.

On December 8, 2014, the Court of Québec granted in part Aluminium Cartier’s lawsuit and ordered Mrs. Kaufman to pay $7,593.09. [ 6 ] On November 25, 2014, Mtre Goldberg sent Mrs. Kaufman invoice #2300 for $3,483.74 representing his fees for the preparation of the and for his attendance at the Aluminium Cartier trial. [3] [ 7 ] Despite numerous reminders sent to Mrs. Kaufman, invoice #2300 remains unpaid to this day. [4] [ 8 ] Mrs.

Kaufman does not complain of the quality of the services performed by Mtre Goldberg in relation to the Aluminium Cartier Mandate. [ 9 ] However, she claims that she should not have to pay invoice #2300 because she alleges that Mtre Goldberg breached his professional obligations in the execution of another matter for which she had retained his services, namely a matter before the Rental Board (Rental Board Mandate). [ 10 ] Moreover, she claims, and this is admitted by Mtre Goldberg, that she paid him a fixed fee of $6,000 for the execution of the

Rental Board Mandate, including the preparation and attendance at Trial. [ 11 ] However, on April 17, 2015, Mrs. Kaufman resiliated Mtre Goldberg’s Rental Board Mandate prior to the trial and transferred the file to another lawyer. Hence, she argues that since Mtre Goldberg has the obligation to repay a portion of the fixed fee he received for the Rental Board Mandate, this amount should be applied to invoice #2300 such that no amount is owing on this invoice. Analysis and decision

a) Have the Defendants proven that Mtre Goldberg breached his obligations in the execution of the Rental Board Mandate, and if so, what damages have they incurred? Preliminary Comments [ 12 ] In his application, Mtre Goldberg sues both Mrs. Kaufman and Trendex for the payment of Invoice # 2300. [ 13 ] Mrs. Kaufman and Mtre Goldberg admit that the legal services he performed in the Aluminium Cartier Mandate and the Rental Board Mandate had nothing to do with the business activities of Trendex, but rather, were executed for the personal benefit of Mrs.

Kaufman. [ 14 ] However, at the client’s request, Mtre Goldberg’s invoices, including Invoice #2300, are all addressed to Trendex c/o Mrs. Kaufman. Trendex paid the invoices and Mrs. Kaufman then repaid the company. [ 15 ] Hence, while Mtre Goldberg’s legal services were provided for Mrs. Kaufman’s personal benefit, Trendex is the solvens . By adopting this scheme, Mrs. Kaufman delegated Trendex to pay Mtre Goldberg’s invoices. [5] As a result of this delegation, both Mrs.

Kaufman and Trendex are liable towards Mtre Goldberg for the payment of his invoices. [6] [ 16 ] The contract for legal services entered between Mrs. Kaufman and Mtre Goldberg is a contract for services which is governed by articles 2098 and ff. of the Civil Code and the Code of Ethics of Advocates . [ 17 ] Pursuant to

article 2100 C.C.Q., Mtre Goldberg was bound to act towards Mrs. Kaufman with prudence and diligence and in accordance with usage and good practice, in the execution of the contract for legal services. [ 18 ] The Defendants have the burden of proving that Mtre Goldberg failed in accomplishing his duties in the execution of the Rental Board Mandate. [7] Mrs. Kaufman claims that Me Goldberg breached his obligations in the execution of this contract because he was not diligent in prosecuting the file. [ 19 ] The lawsuit before the Rental Board was filed in April 2011, yet by December 2014, no trial had been fixed.

This, argues Mrs. Kaufman, constitutes professional negligence by Me Goldberg. [8] [ 20 ] On April 17, 2015, Mrs. Kaufman withdrew Me Goldberg’s mandate for the Rental Board file and appointed new counsel. [9] [ 21 ] Me Goldberg argues that he is not responsible for the delays in prosecuting the Rental Board Mandate. He claims that the delays in scheduling a trial date is entirely attributable to the administrative staff at the Rental Board and the complexity of the file. He adds that he wrote to the Rental Board on numerous occasions to ask the Board to

schedule a trial date in this file, and ultimately succeeded in obtaining a trial date. [10] [ 22 ] Based on the evidence heard at trial, the Court concludes that the Defendants have failed to discharge their burden of proving that Mtre Goldberg breached his professional obligations in the execution of this mandate. Accordingly, this grounds of their defense fails.

b) What amount, if any, is Mtre Goldberg obliged to repay to the Defendants pursuant to paragraph 2 of

article 2129 C.C.Q.? [ 23 ] The parties admit that they agreed on a fixed price of $6,000 for Mtre Goldberg’s services for the Rental Board Mandate, which included the filing of the lawsuit at the Rental Board and the preparation and conduct of the trial. [ 24 ] Mtre Goldberg’s mandate was resiliated by Mrs. Kaufman on April 17, 2015, prior to the trial. He therefore never performed a portion of the legal services he had been paid in advance to perform. [ 25 ] The trial before the Rental Board took place over five days in February and July 2016. [11] [ 26 ] Under

article 2125 C.C.Q., Mrs. Kaufman had the right to unilaterally resiliate the Rental Board Mandate.

Article 2129 C.C.Q. sets forth the obligations of the parties to a contract for services when the contract is resiliated. This

article reads as follows: 2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property supplied, where it can be put into his hands and used by him. For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned . In either case, each party is liable for any other injury that the other party may have suffered. (Emphasis added) [ 27 ] Paragraph 2 of

article 2129 C.C.Q. provides that Me Goldberg had the obligation to repay to the Defendants “any advances he

has received in excess of what he has earned”. [ 28 ] This provision exists specifically for cases such as this one where the client has paid a fixed fee in advance and then elects to unilaterally resiliate the contract before the provider of services has completed the scope of services. [12] Indeed, the provider of services would be unjustly enriched if he were allowed to keep the whole price yet only carried out a portion of the scope of work. [13] [ 29 ] The difficulty in the present case is determining the amount that Mtre Goldberg must repay to the Defendants.

In other words, what portion of the $6,000 price represents “what he has earned”? In a construction contract with a milestone schedule, the court’s task facilitated is by the construction

schedule and milestones. The Court does not have this benefit in this case. [ 30 ] The parties agreed on a fix price of $6,000 for the entire scope of services. The contract was resiliated on April 17, 2015. Trendex paid $22,014.42 to new legal counsel to prepare and conduct the 5 day Rental Board trial. [14] The new lawyers spent 59.4 hours preparing for and attending the trial. [15] [ 31 ] Undoubtedly, her new lawyer’s work was somewhat duplicative of the work that had been carried out by Me Goldberg since he had to relearn the entire file from anew.

Moreover, he may have adopted a trial strategy that resulted in a lengthier trial than what Mtre Goldberg had planned. [ 32 ] Mtre Goldberg spent 16 hours on the Rental Board Mandate over the life of the file up to the date of the resiliation. [16] Had he charged his usual hourly rate of $350 per hour, the value of the services performed up to the date of resiliation was $5,600 plus taxes and disbursements. [ 33 ] It was the Defendants’ burden under paragraph 2 of

article 2803 C.C.Q. to prove what portion of the $6,000 price represented the value of the work earned by Mtre Goldberg up to the date of the resiliation. Her evidence in this regard is limited. Based on the evidence presented at trial, the Court estimates that one half or $3,000 of the fixed fee agreement of $6,000 represented the portion of the price attributable to the preparation and the conduct of the Rental Board trial had Mrs. Kaufman not resiliated the contract as she was entitled to do. [ 34 ] Therefore, the Court concludes that under

article 2125 and 2129 CCQ, Mtre Goldberg has the obligation to repay the Defendants $3,000. [ 35 ] Applying the rules of compensation, Mtre Goldberg’s Invoice #2300 in the amount of $3,483.74 is thereby reduced or offset by $3,000 such that the net amount owed by the Defendants to Mtre Goldberg is $483.74. [ 36 ] Considering that both parties were somewhat successful in their arguments, the Court will exercise its discretion under

article 340 Code of Civil Procedure and will not award costs. FOR THESE REASONS, THE COURT: [ 37 ] GRANTS in part Norman Goldberg’s application against Claire Kaufman and Trendex Home Designs Inc.; [ 38 ] CONDEMNS Claire Kaufman and Trendex Home Designs Inc. solidarily to pay to Norman Goldberg $483.74 with interest and the additional indemnity provided for by

article 1619 of the Civil Code of Québec calculated from November 25, 2014; [ 39 ] WITHOUT COSTS. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: July 18, 2017