2017 QCCQ 11869, 2017 QCCQ 11869

Hutton c. Bernard 2017 QCCQ 11869 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-152172-161 DATE: August 29, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ERIC DUFOUR, J.C.Q. ______________________________________________________________________ MICHELLE HUTTON Plaintiff vs.

ME WILERNE BERNARD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Michelle Hutton claims $3,405.34 from Me Wilerne Bernard, her former lawyer. She complains about Me Bernard’s services in her divorce file. Hutton first argues that she never consented to raise Me Bernard’s professional fees from $3,000 to $5,000. Second, she alleges that Me Bernard «stole» money from the sale of the house of the former spouses.

She finally asserts that Me Bernard was rude, did not properly counsel her and, generally, did not act professionally. [ 2 ] Me Bernard denies owing any amount of money to Hutton. She claims that she acted professionally in the file and that all she billed to Hutton were judicial and professional fees which were agreed upon in a contract signed by the parties and amended later on.

She finally argues that the transit of the money coming from the sale of the house through her in trust account was a matter dealt with in the agreement endorsed by the Superior Court’s decision granting the divorce. [ 3 ] Me Bernard originally filed a cross-demand, which she withdrew at the hearing. The question in dispute [ 4 ] The only question raised by this litigation is whether Plaintiff can be reimbursed from what she paid to Me Bernard for her professional and judicial fees. The facts [ 5 ] In 2014, Hutton instituted proceedings in a divorce file against her former husband.

She was first represented by a legal aid lawyer who, after some time, decided to cease representing her. Hutton then turned to Me Wilerne Bernard, a well-trained family lawyer of ten years of experience, who took over the mandate. [ 6 ] On January 9, 2014, Me Bernard and Hutton agreed on a «Contract of fees with the attorney» [1] . This contract shows that Hutton accepted to pay «$3,000 + Tax as a payment for legal services in relation to the above mentioned matter. In consequence, I give this day $0 as a deposit» (sic).

This contract is signed by both Hutton and Me Bernard. [ 7 ] Exhibit P-4 shows a handwritten note, just above the «$3,000», that bears the sole signature of Me Bernard. That note brings the legal payment to $5,000 and was added to the contract on January 17, 2016. Hutton says that she was never presented with this document. In her testimony, Hutton repeatedly denied having signed this amendment and never agreed to raise the fees. [ 8 ] However, Me Bernard filed as Exhibit D-1 the exact same contract- identical to P-4 but for the signatures. This Exhibit D-1 bears the signature of Hutton.

Faced with this copy, Hutton finally admits having singed it, including the increase of the fees to $5,000. Analysis [ 9 ] Hutton pretends that she did not understand that the money coming from the sale of the house of the former spouses as a consequence of the divorce was to transit through Me Bernard’s in trust account. She says that she was shocked when she realized that the notary sent the money to Me Bernard’s, so that the lawyer fees can be self-paid. She considers that Me Bernard «stole» money from her. [ 10 ] The evidence adduced before the Court affects Hutton’s credibility.

Section 4.2 of the agreement intervened between the parties in the divorce file reads as follows: «The parties agree that the amount to be paid to them by the notary shall be paid to their attorney’s in Trust.». It is a very blunt and straightforward sentence, easy to understand. Hutton expresses herself with ease. The Court is of the

opinion that Hutton understood exactly what she was signing in this agreement. The Court relies notably on the E-mails. [2] [ 11 ] Hutton says that she was stressed by her divorce and her personal health condition. However, when asked by the Court if that health condition was of mental order, she frankly admits that it was not the case. [ 12 ] Based on the evidence adduced at the hearing, the Court considers that the transit of money through Me Bernard’s in trust account was duly set forth in the agreement endorsed by the Superior Court. Hutton has nothing to complain about what she agreed to.

Me Bernard did not, in any way, steal any money from Hutton. [ 13 ] The Court now turns to the increase in Me Bernard’s fees. It is noteworthy to underline that Hutton first strongly denied having been aware of the amendment to the contract and testified that she was never presented with it. The Court insisted on that point during her testimony. It is only when Me Bernard filed Exhibit D-1 that Hutton finally admitted that she had indeed signed the amended contract. [ 14 ] This strongly affects the overall credibility of Hutton. [ 15 ] Contract D-1 was signed by the parties.

It clearly provides that Hutton will pay an amount of $5,000 plus applicable Taxes for the professional services of Me Bernard. No deposite was necessary, which means that Me Bernard accepted to act without charging any amount of money for her professional fees during the proceedings. In fact, Hutton paid nothing to Me Bernard during that period of time.

Furthermore, contract D-1 clearly provides that Hutton is responsible for judicial disbursements and the costs related to the bailiff, the stenographers, and the photocopies. [ 16 ] The final invoice P-2 sent to Hutton shows that Me Bernard charged nothing but what was agreed upon by the parties. [ 17 ] According to Me Bernard’s testimony, Hutton never complained about her professional behavior. She even insisted to keep her as a lawyer when the divorce hearings had to be postponed due to the illness of Me Bernard.

It is only when Plaintiff received her Final notice [3] that she first complained. [ 18 ] A contract is the law of the parties. It is binding on them as well as the Court. [ 19 ] As to the alleged coldness and rudeness of Me Bernard, as well as to all the other complaints raised by Plaintiff towards her former lawyer, Hutton addressed these questions to the Barreau du Québec [4] who dealt with them [5] . It is not for the Court to intervene in the Barreau’s decision. [ 20 ] Hutton did not prove her allegations against Me Bernard.

The evidence shows that Me Bernard acted with compassion, in the best interest of her former client. For these reasons, the COURT: DISMISSES Plaintiff’s application, with costs of $100 representing the stamp of the Contestation by Defendant. __________________________________ ÉRIC DUFOUR, J.C.Q. Date of hearing: August 10, 2017