2017 QCCQ 3073, 2017 QCCQ 3073

Leroux c. Nell Neilson 2017 QCCQ 3073 JG2338 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No: 760-22-009844-153 DATE: March 2, 2017 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Me Jacinthe L. LEROUX Plaintiff v.

Judith NELL NEILSON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Me Jacinthe L. Leroux claims from Mrs. Judith Nell Neilson, her former client, the amount of $ 15 542.54, being her professional fees for representing her in filing a Demand in divorce. THE FACTS: [ 2 ] A first bill is sent by Me Leroux on April 1 st , 2011, in the amount of $ 3240.16, representing 27.33 hours of work by Me Leroux between February 3 rd and April 1 st , 2011.

This bill was paid in full, except for a balance of $ 340.16. [ 3 ] On October 4, 2011, Me Leroux sends a second bill in the amount of $ 935.54, related to the possession of a Jeep Cherokee that Mrs. Neilson confided to her husband to sell it. The vehicle was damaged when Mrs. Neilson decided to take it back. Me Leroux suggested to Mrs. Neilson to file a Demand in the Small Claims Court Division to recover the amount of the damages, which were of $ 6337.32. This Demand was suspended by Mr.

Justice Claude Montpetit, J.C.Q., on July 9, 2012, on the basis that the Small Claims Court Division did not have jurisdiction to decide upon a vehicle that was part of a litigation in Superior Court in a divorce matter. [ 4 ] On October 7 and 8, 2013, the trial was held in front of Mr. Justice Paul Mayer of the Superior Court. The file was settled during the second day of hearing, when a Consent was signed by all the parties and their attorneys. [ 5 ] Me Leroux sent her bill on March 13, 2014, for an amount of $ 14 266.84, representing 99.5 hours at the hourly rate of $ 125.

If we add to the amount of this bill the other invoices that were still unpaid, the sum is $ 15 542.54. [ 6 ] With this invoice, Me Leroux sent an email, which reads as follows: “As agreed all along the divorce procedure, I was to invoice you for these services when the divorce was rendered and your house remortgaged so that you may pay me. I have held my side of the bargain and I trust you will respect your repeated engagement to that effect.

So I expect you had enough time since November 2013 to deal with my announced invoice which should be paid promptly.” [ 7 ] Me Leroux sent a Letter of Demand by bailiff on June 25, 2014. It is only on January 7, 2016, that Me Leroux served the procedures. [ 8 ] Mrs. Neilson’s grounds of defence, as stated in the Case Protocol, are as follows: • Professional fees are a hundred percent unjustified due to lawyer’s unacceptable representation in handling my file;

• I completed work at her request as a designer with her telling me my work would be a trade-off of her work. I paid her invoice in full up to that point. Never did she discuss any additional invoice to be sent (as a result of her request that I do work for her and a family member); • I received my first correspondence from Mrs. Leroux (the invoice in question) 1.5 years later. [ 9 ] To support her allegation that Me Leroux’s invoice was fully paid by some designer work she did for her, Mrs. Neilson issued an invoice dated January 10, 2016, describing some work done on October 19, 2011 for Mrs.

Anne Anderson (redesign of a kitchen), and for Me Leroux on February 1, 2013. She also filed some sketches. [ 10 ] The invoice is not detailed as how many hours were spent for Mrs. Anderson or Me Leroux, but totalizes $ 11 400 plus taxes, at an hourly rate of $ 95, which represents 120 hours of work. [ 11 ] Me Leroux denies such an agreement. [ 12 ] Mrs. Neilson also doubts some of the hours she was billed for by Me Leroux, filing pages of calendars to show that the dates mentioned in Me Leroux’s invoice do not match the dates on which she met her.

She also filed as exhibit D-9 a document in which she details what she disagrees with in Me Leroux’s bill. ANALYSIS AND DECISION: Compensation between Mrs. Neilson’s designer work and Me Leroux’s fees: [ 13 ] It is Mrs. Neilson who has the burden to prove to the Court that an agreement intervened between herself and Me Leroux so that her fees as a designer would be set off with Me Leroux’s fees in her divorce file. [ 14 ] Me Leroux does not deny that she referred Mrs. Neilson to Mrs. Anderson, her sister-in-law, but states that it was never understood that the work done by Mrs.

Neilson would be deducted from her professional bill. It would indeed be strange that Me Leroux would cut her fees for services rendered to someone else, even a family member. [ 15 ] It is very possible that Mrs. Neilson gave some advice to Me Leroux and even made a few sketches for her. [ 16 ] It is something else to pretend that such work would erase her bill for professional services, as she knew very well how much a contested divorce could cost. [1] [ 17 ] Such a deal would certainly worth a letter or, at least, an email. [ 18 ] Me Leroux testified that during the divorce file, Mrs.

Neilson sent her over 350 emails. Mrs. Neilson did not file any correspondence whatsoever that would have been sent to confirm the agreement, during the file or when her work was done. [ 19 ] More surprisingly, when Mrs. Neilson receives Me Leroux’s email of March 13, 2014, she does not answer that she owes her nothing, as she had already paid her with her designer services. The same silence is present after the receipt of the mise en demeure of June 25, 2014. [ 20 ] At the trial, Mrs. Neilson testified that she verbally objected to Me Leroux’s bill, saying that she disagreed wholeheartedly.

She said that she called Me Leroux’s office several times but could not talk to her. She then assumed that Me Leroux agreed to the trade-off. [ 21 ] She also filed a written Declaration from Sagar Patel who says that Mrs. Neilson told her about the trade-off agreement between herself and Me Leroux. Me Leroux’s objection to the filing of that document at trial was granted. [ 22 ] This ground of Defence is dismissed. [ 23 ] We now have to examine Mrs.

Neilson’s argument that she was not fairly defended by Me Leroux at trial, and that she did not work all the hours that are noted in her invoice. [ 24 ] The Court has carefully examined the Superior Court’s file, in order to verify the allegations in exhibits D-9 and D-10 filed by Mrs. Neilson. [ 25 ] In exhibit D-9, Mrs.

Neilson pretends that some Court dates never happened. [ 26 ] As for the Court dates of February 17, March 17, and March 24, 2011, the three minutes of the hearing in the Superior Court file show that Me Leroux was present in Court for the presentation of the Application for the divorce. [ 27 ] As for the Court date of October 24, 2011, Me Leroux’s invoice shows that it is not a vacation in Court that is billed, but the preparation of documents. [ 28 ] As for the Court date of March 23, 2012, it was not billed by Me Leroux. [ 29 ] As concerns the Court date of June 15, 2012, the minutes shows that Me Leroux was indeed present in Court for the provisional role call. [ 30 ] As for the Court date of February 4, 2013, Me Leroux’s presence in Court was noted on the minutes.

It is not because the trial could not be held at that date because of the number of cases on the role that Me Leroux’s presence in Court should not be billed. As the Court date of February 5, 2013, it was not billed by Me Leroux.

[ 31 ] As concerns exhibit D-10, which are the dates on Mrs. Neilson’s calendar, this document is entitled “difference in meeting dates as per her invoice”. Most of the dates circled by Mrs. Neilson on the three calendars for the years 2011, 2012, and 2013 correspond to emails or telephone conversations or drafting of documents that were done, and not necessarily meetings. [ 32 ] A lawyer’s work is far more than only meeting with clients.

It involves conversations and correspondence with the attorney of the other party, as well as vacations in Court, during which the client is not always present. [ 33 ] By studying the Superior Court file, it is possible to confirm many of Me Leroux’s entries in her bill, namely for the work that was done on May 2 and 3 (conversation with the Sherriff as regards the seizure before judgment). [ 34 ] The inscription filed on June 2, 2011, the procedures sent by fax on August 22, 2011, the completion of the file on February 12, 2012, the drafting of a notice according to

Section 294.1 of the Code of civil procedure on January 29 and 30, 2013, the procedure from the Defendant’s attorney on February 1, 2013 can be all confirmed. [ 35 ] Considering the overall bill sent by Me Leroux, the Superior Court file, which shows a highly contested divorce, considering also the hourly rate charged by Me Leroux, this Court cannot conclude that the amount billed for such a file is exaggerated. [ 36 ] It seems clear that Mrs. Neilson was very much disappointed by the issue of her trial. [ 37 ] Mrs.

Neilson said that she was not prepared by Me Leroux for her examination in Court, and that Me Leroux did not question her and just told her go ahead and tell the Judge what happened. [ 38 ] The minutes show that Mrs. Neilson testified from 10:29 to 12:15, and from 14:07 to 14:21, after which she was cross-examined until 15:01. [ 39 ] The minutes show that on many occasions, Me Leroux during her examination referred Mrs. Neilson to specific exhibits (19). [ 40 ] Mr. Lachaine testified from 15:03 to 16:20, at which moment, the Judge addressed both parties. The Court could not listen to what was said by Mr.

Justice Mayer, as such a hearing is confidential. [ 41 ] According to Me Leroux, the Judge strongly suggested that the parties settle this file out of Court. This Court can assume that the transaction that intervened between Mrs. Neilson and her ex-husband was drafted considering what Mr. Justice Mayer had told them. [ 42 ] In the procedures, both parties were seeking and unequal sharing of the family patrimony, as well as compensatory allowance. Mr.

Lachaine was claiming $ 125 000 as compensatory allowance, with a deduction of $ 32 000 from the family patrimony as a recognition of his contribution as well as the reimbursement of $ 10 000 for a debt he incurred to work on the family home. [ 43 ] Mrs.

Neilson was also asking for spouse support of $ 1500 per month, but it appears from an email she sent to Me Leroux on June 13, 2012, that she was well aware that this demand was more a pressure point in order to get a settlement than a realistic demand. [ 44 ] In the transaction, no support was paid, each party kept their own belongings and cars, there was no sharing of pension funds or plans, and Mrs. Neilson ended up paying $ 75 000 to Mr. Lachaine in settlement of the family patrimony and the partnership of acquest. [ 45 ] This transaction was duly signed by Mrs.

Neilson, and, although it does not represent what she was hoping for, this Court cannot conclude that the signature of this settlement was made because of Me Leroux’s wrong advice. [ 46 ] The last question to decide is related to the bill dated October 4, 2011, regarding the problem with the Jeep Cherokee. Mrs. Neilson opened the file in the Small Claims Court Division on October 24, 2011, after receiving Me Leroux’s bill dated October 4, 2011. The Court accepts Mrs.

Neilson’s testimony that she opened the Small Claims Court file following Me Leroux’s advice. [ 47 ] At that date of October 24, 2011, Me Leroux had already file an answer and a cross-defence on September 1, 2011, in which she specifically alleges that Mr. Lachaine did not return the Jeep Cherokee in perfect condition. [ 48 ] Me Leroux should have known that the Small Claims Court Division could not handle such a claim, while the Superior Court was duly seized of the question by the procedures. [ 49 ] In consequence, Mrs.

Neilson does not have to pay Me Leroux’s bill of October 4, 2011. [ 50 ] Me Leroux’s action is then granted for the amount of $ 14 607. FOR ALL THESE REASONS, THE COURT: GRANTS in part Plaintiff's action; CONDEMNS Defendant, Judith NELL NEILSON, to pay to Plaintiff, Me Jacinthe L. LEROUX, the amount of $ 14 607, together with the interest at the legal rate and the additional indemnity provided for by

Section 1619 C.c.Q. , from January 7, 2016, date of service; THE WHOLE with judicial costs.

__________________________________ CÉLINE GERVAIS, J.Q.C.