2015 QCCQ 6411, 2015 QCCQ 6411

Morrone Avocats inc. c. Cicarelli 2015 QCCQ 6411 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-145102-143 DATE: July 20, 2015 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ MORRONE AVOCATS INC. Plaintiff vs.

FRANK CICARELLI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming $6,495.09 from the Defendant as fees for the services he rendered. [ 2 ] The Defendant claims he should not have to pay for Plaintiff’s services because he had represented to him that the opposing party would pay for his services as it was certain they would loose. As for the Fee Agreement that he signed, he claims that he signed it without reading it because he trusted his attorney.

CONTEXT AND DECISION [ 3 ] The Defendant hired the Plaintiff to represent his parents in legal proceedings instituted against them [1] . [ 4 ] Plaintiff testified that he explained the content of the Fee Agreement signed by the parties, a simple agreement that indicate the hourly rates that will be charged, how the time is recorded and what is charged [2] . [ 5 ] According to the Defendant, Plaintiff forwarded by fax a signed Fee Agreement to his attention for him to read before signing it. He read it somewhat and signed it at Plaintiff’s office in the presence of a secretary.

He claims he did not understand the content of the agreement but signed it anyway without questioning its content trusting his attorney. [ 6 ] His understanding was that Plaintiff’s services would not cost him more than $1,500.00 and that the opposing party would pay his legal costs. [ 7 ] Plaintiff invoiced the Defendant on a monthly basis starting October 31, 2013 [3] .

By the November 30 th , 2013 invoice, Plaintiff’s fee had exceeded the $1,500 the Defendant allegedly understood Plaintiff’s fee would be for his services. [ 8 ] The Defendant claims that he asked Plaintiff why he was receiving invoices and was told not to worry about the invoices because the opposing party would pay them. [ 9 ] The Trial for which Plaintiff’s services had been retained took place on March 6, 2013.

On March 7, 2013, Plaintiff sent its final invoice to the Defendant regarding the services rendered [4] . [ 10 ] According to Plaintiff, the Defendant always maintained that he would pay for its services, that he needed time, that he would arrange things, even asking at one point if an arrangement could be taken. [ 11 ] In May of 2014, hoping to finally get paid, Plaintiff issued a credit of $500.00 to the Defendant.

The Defendant still did not pay the balance he had agreed to pay. [ 12 ] On September 2 nd , 2014, Plaintiff sent a demand letter to the Defendant asking for payment of the outstanding fee [5] . [ 13 ] The Fee Agreement provided that an interest rate of 1½% per month or 18% per annum would be charged on payments past due

after 30 days. Plaintiff asks that the interest provided for in the Fee Agreement be granted as of the date the Motion to Introduce Proceedings was signed. [ 14 ] The Defendant denied having ever promised Plaintiff that he would pay his invoices.

He also denied having told Plaintiff that he could not afford to pay the services because he was not getting paid by his clients, or that he wanted to take payment arrangements. [ 15 ] Recordings of voice messages the Defendant left on Plaintiff’s voicemail were plaid at the hearing to corroborate Plaintiff’s testimony that the Defendant had hold him he would pay its invoices.

Commenting the recordings, the Defendant claimed that Plaintiff must have recorded him leaving messages on other people’s voicemail. [ 16 ] The two recordings that were played at trial clearly indicated that the Defendant was leaving messages to Plaintiff’s attention. Defendant’s attempt at justifying the content of the voice messages could not be more farfetched. [ 17 ] The Defendant’s parents were sued for an amount of approximately $9,000. Plaintiff declared that he suggested to the Defendant to try to settle the case prior to investing money in defending against it.

According to Plaintiff, Defendant’s answer to that suggestion was that he would rather pay him legal fees than pay the opposing party any money. [ 18 ] Not surprisingly, the Defendant declared having stated exactly the contrary. [ 19 ] Anyone who wants to assert a right shall prove the facts that sustain his claim and, safe exception, the clear and convincing evidence that makes the existence of a fact more probable than its nonexistence is sufficient [6] to satisfy the test of balance of probabilities [7] . [ 20 ] Provision 127 of

An act respecting the Barreau du Québec [8] provides the following: 127. The oath of the advocate shall make proof as to his services having been required and as to the nature, duration and value thereof, but such oath may be contradicted in the same way as any other testimony. [ 21 ] The Court is satisfied that the Defendant had ample time to read and question the content of the Fee Agreement that he signed. It is not sufficient to state that he did not bother to question the document he signed to not be bound by its terms.

One has the obligation to question what he signs and make sure that he knows and agrees with its terms. Signing a document without questioning its content that one allegedly does not comprehend constitutes an inexcusable error [9] . [ 22 ] The Defendant does not contest that Plaintiff rendered the services for which it is claiming payment.

The Court is satisfied that the services were rendered and justified, particularly in light of the outcome. [ 23 ] WHEREFORE, THE COURT: [ 24 ] GRANTS the claim; [ 25 ] CONDEMNS Frank Cicarelli to pay to Morrone Avocats inc. $6,495.09 with the interest of 1½% per month of 18% per annum as of the date of service, October1 st , 2014, and the costs of $143. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: 30 June 2015 [9] Art. 1400 (2) C.C.Q.: An inexcusable error does not constitute a defect of consent.