2014 QCCQ 7290, 2014 QCCQ 7290

Babenko Mutchnik Avocats, s.e.n.c. c. Diakonov 2014 QCCQ 7290 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139721-130 DATE: July 10, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ BABENKO MUTCHNIK AVOCATS S.E.N.C. Plaintiff v.

PAVEL DIAKONOV Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Context [ 1 ] Mr. Pavel Diakonov retained the attorney Andrey Mutchnik of the Defendant law firm further to his arrest and filing of criminal charges against him. [ 2 ] Mr. Diakonov was acquitted of all charges. Mr. Diakonov is contesting the legal fees charged. The question for the Court is to determine the amount owed by Mr. Diakonov to attorney Mutchnik, if any.

Plaintiff’s Position [ 3 ] Plaintiff issued two invoices for services rendered to Mr. Diakonov dated respectively April 22, 2012 and January 2, 2013 (Exhibit P-4 en liasse ). As an honorium, Plaintiff charged $2,000. Plaintiff charged a base fee of $1,250. He also charged an additional amount of $750. According to Mr. Mutchnik the verbal agreement with respect to the cost of the legal services to be rendered was a base minimum fee of $1,250 plus a bonus amount of $250 for every criminal charge (of the three charges) for which the client was acquitted. As Mr.

Diakonov was acquitted of all three charges, Plaintiff is asking for the amount of $750. There are also amounts incurred for expenses ($22.50 – photocopy of jurisprudence) and applicable taxes ($205.54 – combined GST/QST). [ 4 ] Mr. Mutchnik states in sworn testimony and on his oath of office as an attorney that the bonus charge was explained to Mr. Diakonov who agreed to it. Mr. Mutchnik explains that no hourly billable rate was agreed to. Furthermore, no written Mandate Agreement was signed. According to Mr. Mutchnik, the defence mounted on behalf of Mr.

Diakonov included the preparation and pleading of constitutional arguments (thus the jurisprudence), two (2) days at Court (1 full day, one reduced to the morning), review of disclosure of proof and long discussions with the public prosecutor in order to obtain further disclosure, in particular with respect to the identity of witnesses on behalf of the prosecution.

[ 5 ] After starting the trial in April 2012, the hearing was continued to a further date in December 2012, at which time the public prosecutor’s case against Mr. Diakonov collapsed. Accordingly, the judge acquitted Mr. Diakonov of all three charges. [ 6 ] In accordance with Plaintiff’s invoice, a total amount of 31 hours was spent on the file. Defendant’s Position [ 7 ] Defendant states that the fee agreement was for $1,250 (plus $50 for consultation, which is not in issue). Under oath, he states that there was no discussion of any bonus fee for acquittal.

He states that he was specifically told that there would be no taxes applicable. With regard to the taxes, Mr. Mutchnik acknowledges that initially Plaintiff qualified for an exemption but that changed by the time the final invoice was issued. Defendant minimizes the role of his attorney in the dismissal of the charges and says that the testimony of the witnesses simply favoured him. Analysis and Decision [ 8 ] In the Court’s view, neither party is being dishonest in its testimony before the Court. Both parties are in good faith. Perhaps Plaintiff’s representative was not as clear as he should have been.

Perhaps Defendant did not understand the proposed fee agreement and only heard what he preferred to hear. Certainly, such ambiguities and misunderstanding could have been eliminated had the Plaintiff confirmed the agreement in writing. The Court’s view is that in light of the good faith misunderstanding, there was no meeting of the minds between the parties as to the fee arrangement. There was however obviously an agreement between the parties that the Defendant would retain Plaintiff’s services.

As there was no agreement as to the fees, the Court will assess the amount owed on the basis of the doctrine of Quantum Meruit (“As much as is deserved”). [ 9 ] According to this doctrine, the amount owed is the reasonable amount of labour and services rendered in the absence of a specific agreement. [ 10 ] The Court takes into account the following relevant criteria: 1) experience of the attorney; 2) the responsibility assumed and the discharge of the responsibility by the attorney; 3) the complexity of the matter; 4) the importance of the matter; 5) time spent; 6) result obtained. [ 11 ] In this regard, the comments of the Court are:

1) experience of the attorney : At the time of the trial, Mr. Mutchnik had approximately two (2) years experience as an attorney; 2) the responsibility assumed and the discharge of the responsibility by the attorney : The responsibility assumed was important in that Defendant was risking a criminal record and significant prison time. The attorney, like all professionals, also has a responsibility of information towards his client (Art. 2102 CCQ). It appears from this matter that Plaintiff’s performance in that regard was deficient. Plaintiff’s representatives, in particular Mr.

Mutchnik, should have ensured that Defendant fully understood the fee arrangement including the bonus fee for acquittal. That deficiency in services justifies a reduction of $300; 3) the complexity of the matter and 4) the importance of the matter : the criminal charges laid were very serious. They involved

a) drunk driving;

b) criminal negligence;

c) hit and run. Each charge carried heavy penalties including prison time of many years; 5) time spent : The Court is convinced that Mr. Mutchnik spent 31 hours on the matter. Based upon the amount claimed by Plaintiff ($2,000), this would convert to $64.50 per hour. Based upon Defendant’s amount ($1,250), that would convert to $40 per hour.

The Court favours as a reasonable rate the higher rate of $64.50; 6) result obtained : The result obtained was excellent: Complete acquittal of all charges. [ 12 ] In the Court’s view, the amount of $2,000 in fees claimed by Plaintiff for all the services rendered is reasonable. That amount should however be reduced by $300 in light of the Plaintiff’s failure of information. As a result of the above, the amount of fees due to Plaintiff is $1,700.

As Defendant has already paid $1,250, an amount of $450 remains due. [ 13 ] There should be added to that amount the $22.50 disbursement for photocopies so that the total amount is $472.50. No taxes will be added since Defendant should not be responsible for a charge in that regard that was not explained or approved by him. That is an issue between the Plaintiff and the applicable tax authorities. The Court will thus order Defendant to pay Plaintiff the amount of $472.50, plus interest and judicial costs.

FOR THESE REASONS, THE COURT: GRANTS in part Plaintiff’s Motion; CONDEMNS Pavel Diakonov to pay Plaintiff the amount of $472.50, plus legal interest of 5% and the additional indemnity provided at

Article 1619 of the Civil Code of Quebec commencing from the institution of the legal proceedings, being August 28, 2013; WITH JUDICIAL COSTS of $73.75 in favour of Plaintiff. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: July 3, 2014