2019 QCCQ 3296, 2019 QCCQ 3296

Arnault Thibault Cléroux c. Gidney 2019 QCCQ 3296 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-22-232257-165 DATE: May 30, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE DANIEL BOURGEOIS, J.C.Q. ______________________________________________________________________ ARNAULT THIBAULT CLÉROUX, AVOCATS S.E.N.C. Plaintiff/Cross-defendant v.

Elizabeth GIDNEY Defendant/Cross-plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The Plaintiff, Arnault Thibault Cléroux, avocats s.e.n.c. (the “Plaintiff”), claims the unpaid balance of legal fees in the amount of $19,185.77, from the Defendant, Mrs. Elizabeth Gidney (“Mrs. Gidney”).

The professional services were rendered in the context of two files, i.e., file 2571-003 (Catherine Lemieux et al .), for which a balance of $16,009.01 remains outstanding, and file 2571-004 (Larry South), for which legal fees of $3,176.76 remain unpaid. [ 2 ] The Defendant denies owing any amount whatsoever to the Plaintiff and raises, inter alia , the following grounds (See “Schedule 'A', Ground for Defense”): - Plaintiff did not act with integrity, competence, loyalty, diligence or prudence on behalf of Defendant. - Plaintiff did not provide quality services. - Plaintiff did not act at all times in the best interests of Defendant in such a manner as to establish and maintain a relationship of mutual trust. - Plaintiff did not communicate with Defendant in such a manner as to be understood by the client. - Plaintiff did not act pursuant to the mandate of Defendant. - Plaintiff did not provide professional services appropriate to the nature of Defendant’s mandate. - Plaintiff multiplied professional acts without sufficient reason. - Plaintiff did not serve and protect Defendant’s interests. - Plaintiff did not advise Defendant honestly and candidly. - Plaintiff did not provide Defendant with adequate explanation for the understanding and evaluation of his professional services. - Plaintiff was not reasonably available with respect to the performance of the various professional tasks related to the mandate. - Plaintiff did not adequately report on the progress of the file. - Plaintiff did not fulfill its undertakings in the course of performing the mandate. - Plaintiff imposed the condition of payment of invoices in full without question and threatened to cease acting for Defendant until Defendant made this payment. - Plaintiff’s fees were not warranted by the circumstances or proportionate to the professional services rendered or the results obtained. - Plaintiff did not collaborate with the other party’s lawyer in the interests of the clients. [ 3 ] Mrs.

Gidney filed a cross-application claiming $40,000 from the Plaintiff for “ moral damages, loss of enjoyment of life, pain,

suffering, stress and anxiety arising from Plaintiff’s fault ”. BACKGROUND [ 4 ] Before considering the facts relevant to this dispute, it is worth reviewing the family history and the various proceedings invoked by the Defendant to better understand Mrs. Gidney’s allegations against the Plaintiff. Family history and proceedings [ 5 ] It is useful in this respect to cite the following statements set out in the defence: 2. Sam Gidney (1927-2009) ("Sam”), was Defendant’s father and founder of Gidney lobster Ltd. 3. Johanne Racz-Gidney (1930-2006) ("Johanne”) was Defendant’s mother. 4.

Defendant is the oldest daughter of Sam and Johanne. 5. Anne Gidney-Lawson (1955-2012) ("Anne"), was Defendant’s sister. 6. Gidney Lobster Ltd. was Defendant’s family business which successfully operated in the greater Montreal area for fifty (50) years up until 2012 when the business was then transferred to Monique Rasetti by Larry South; 7. Larry South, accountant, was Anne's replacement as Defendant’s co-liquidator of Johanne's estate and author of Sam Gidney’s 2009 will; 8.

Monique Rasetti had entered into an intimate relationship with Sam Gidney prior to the demise of his wife, Johanne, who was a cashier in Gidney Lobster Ltd at the time of Sam’s death; she was a beneficiary under the 2009 document and under Anne’s 2011 will and is now owner of Defendant’s family business, Gidney Lobster Ltd; 9. Catherine Lemieux was a friend of Anne and is liquidator and universal legatee under Anne's will; [ 6 ] Essentially, the Defendant brought an action in the Superior Court to have her father’s will, by which he appointed Larry South as liquidator, declared null. Mrs.

Gidney was not represented by the Plaintiff in that file. [ 7 ] The Defendant claims that Larry South defrauded her and her sister Anne for his own benefit and for the benefit of Monique Rasetti. [ 8 ] Moreover, in parallel with the foregoing, Mrs. Gidney alleges that in view of her sister Anne’s medical condition, she did not have the mental capacity to make her will in 2011.

The mandate given to the Plaintiff in March 2013 [ 9 ] Mtre Luc Arnault (“Mtre Arnault”) testified that the Defendant contacted him in March 2013, asking him to intervene in her sister Anne’s file, which was already pending before the Superior Court (file 500-14-041781-121, P-2). [ 10 ] The court ledger filed as exhibit P-2 indicates that the Defendant was at first represented by Mtre Ebrahim Macleod in January 2013.

Then, in February 2013, the Defendant dismissed her counsel and decided to appear personally in that file concerning the probate of her sister Anne’s will. [ 11 ] Mtre Arnault testified that it was urgent because the case had already been scheduled by Catherine Lemieux’s counsel in the coming weeks. [ 12 ] A declaration of voluntary intervention was filed in the court record on March 8, 2013, (D-1).

Through this intervention, the Defendant sought the dismissal of the application for probate of her sister Anne’s will presented by the liquidator, Catherine Lemieux. [ 13 ] Mtre Arnault said that the Defendant also informed him at that time of other disputes, including the one concerning the will of her father, Sam, and the fact that she also wanted to bring proceedings against Larry South.

Mtre Arnault stated, however, that the mandate concerning the Larry South file was confirmed only much later in 2013. [ 14 ] The Defendant’s version of the mandate is different than the one presented by Mtre Arnault. [ 15 ] According to the Defendant, she not only mandated the Plaintiff to contest Defendant’s sister’s 2011 will, but she submits that Plaintiff was mandated at the time to join together the above motion regarding her sister’s will (500-14-041781-121) with Defendant’s 2010 motion regarding her father’s will (500-14-036667-103), and Catherine Lemieux’s 2011 motion regarding her mother’s estate (500- 17-033666-069), as well as Defendant’s motion (to be produced) regarding Defendant’s family business.

The unpaid invoices [ 16 ] The unpaid invoices in the Catherine Lemieux file are invoice nos. 13245 dated February 28, 2014, 13355 dated March 31, 2014, 13579 dated May 31, 2014, 13671 dated June 30, 2014, and 13804 dated July 31, 2014, totalling $16,009.01. [ 17 ] The Larry South file concerns invoices 13230 dated February 28, 2014, and 13906 dated August 31, 2014, totalling $3,176.76. [ 18 ] The statement of account filed in evidence (P-8) shows that in the Catherine Lemieux file, 11 invoices were issued between March 20, 2013, and January 31, 2014, and that all these invoices were paid in full by the Defendant.

Therefore, in this file, the balance

on February 19, 2014, was zero. [ 19 ] In the Larry South file, the statement of account shows that two invoices were paid, the first dated December 31, 2013, and another dated January 31, 2014. Like the preceding file, the statement of account indicates that the balance of legal fees owing on February 19, 2014, was zero. [ 20 ] Therefore, in regard to these two files, the only invoices that are in dispute and remain unpaid are those subsequent to February 19, 2014, identified respectively as exhibits P-3 and P-4.

Other faults alleged against the Plaintiff [ 21 ] In addition to the Grounds of Defense stated at the beginning of this judgment, Mrs. Gidney submits the following in her cross- application: 50. Not being able to present these cases together as one story with one hearing and common proof; one common set of exhibits and one lawyer in one trial; on one date before one judge has become a succession of never-ending applications and court appearances that has weakened Defendant’s position in each separate matter and worn her down emotionally, psychologically, physically and financially; 51.

Defendant is forced to re-live and re-experience the loss of her family; the humiliation of having been evicted from her own family business; the financial violation of her inheritance; the Personal financial hardship of litigation; the lies, and the ongoing struggle to find some justice for her family and the loss of what her family built; 52.

The evidence in all these cases endlessly overlaps and Plaintiff s omission to join these cases together has condemned Defendant to a seeming eternity of litigation in which she has been forced to submit multiple legal forms and attend multiple case management conferences with separate parties for separate cases all of which have to do with non-family members seeking to control and/or obtain the greater portion of Defendant’s parents' estates for themselves; 53. Defendant cannot cope with the litigation she is currently facing, each case isolated from the other, and stretching out in time one after the other. 54.

Defendant is living in the shadow of the death of her family and the loss of everything her family built and Plaintiff s failure to bring these matters to the court in a timely and connected fashion in 2013 has reduced Defendant’s options for closure in 2017 as will be more amply established at trial; ANALYSIS Code of Professional Conduct of Lawyers [ 22 ] Because the Defendant alleges that the Plaintiff, Mtre Arnault, or the other lawyer who worked on the files, Mtre Nicola Corbo, did not respect their ethical obligations, it is worth citing the relevant provisions of the Code : [1] 20.

A lawyer owes his client duties of integrity, competence, loyalty, confidentiality, independence, impartiality, diligence and prudence . 23. A lawyer must act at all times in the best interests of the client, in compliance with the rules of law and in such a manner as to establish and maintain a relationship of mutual trust . 26. A lawyer must communicate with his client in such a manner as to be understood by the client . 28. A lawyer must determine together with the client the terms, conditions and scope of the mandate given to him.

In particular, he must set out in an objective manner the nature and scope of the problems as he sees them on the basis of the facts brought to his attention and the risks inherent in the measures recommended . A lawyer must obtain the client’s consent to the mandate, paying particular attention and care when the client is vulnerable due, in particular, to his age or his physical or psychological condition . 30. When a lawyer foresees that certain services relating to the performance of a mandate will be carried out in their essential aspects by another person, he must so inform the client . 35.

A lawyer must provide professional services that are appropriate to the nature of his mandate and avoid performing or multiplying professional acts without sufficient reason . He is responsible for the mandate and must adequately supervise work performed by others who are collaborating with him in the performance of the mandate . 37. A lawyer must be honest and candid when advising clients . 38. A lawyer must provide his client with any explanation necessary for the understanding and evaluation of his professional services . 99.

A lawyer must, before agreeing with the client to provide professional services, ensure that the client has all useful information regarding his financial terms and obtain his consent thereto, except if he has reason to believe that the client is already informed thereof . During the course of the mandate, the lawyer must keep the client informed of circumstances that could entail significant changes to the anticipated cost of his professional services . 101. A lawyer must charge and accept fair and reasonable fees and disbursements .

The same applies to advances he asks the client to provide . 102. The fees are fair and reasonable if they are warranted by the circumstances and proportionate to the professional services rendered.

In determining his fees, the lawyer must in particular take the following factors into account: ( 1 ) experience; ( 2 ) the time and effort required and devoted to the matter; ( 3 ) the difficulty of the matter ; ( 4 ) the importance of the matter to the client ; ( 5 ) the responsibility assumed ; ( 6 ) the performance of unusual professional services or professional services requiring special skills or exceptional speed ; ( 7 ) the result obtained ; ( 8 ) the fees prescribed by statute or regulation; and ( 9 ) the disbursements, fees, commissions, rebates, costs or other benefits that are or will be paid by a third party with respect to the mandate the client gave him . [ 23 ] From the testimony of Mtre Arnault and Mrs.

Gidney, the Court essentially understands the following. File concerning the contestation of Anne’s will [ 24 ] The Defendant faults the Plaintiff for not providing the St.

Stephen medical file to the other party’s counsel and for not obtaining Anne’s “Medication file”, that is, the list of medications her sister was prescribed. [ 25 ] In response to these allegations, Mtre Arnault submits that the pharmacological file was nevertheless included in the medical files and that this element was not determinative in the file concerning the contestation of Anne’s will. [ 26 ] The Plaintiff submits to the Court that Capriolo J.S.C. was, in any event, convinced that at the time Anne signed her will, she had the legal capacity to do so (judgment D-11): [7] For the time of signing the will, we have several contemporary witnesses: the lawyer Dennis Boyle, the assistant secretary to the lawyer, Miss Susan Beale, and the husband, Mr.

James Lawson. [8] Mr. Boyle cannot be clearer as to the capacity of the testator at the time, Miss Beale did not see anything strange about her and Mr. Lawson testified, quite clearly, that she was taking anti-psychotic medication at the time and that, therefore, she was competent. [9] I would like to point out that a testimony given by somebody against his own Personal interest is a testimony to which we can give much credence. In this particular case, Mr.

Lawson had a very serious financial interest in showing that his wife was not competent at the time of writing the will because, had he succeeded in doing so, he would either have inherited the entire fortune (if she was domiciled in New-Brunswick at the time) or two thirds of it had she be domiciled In Québec. And despite this, he was quite adamant that she was fine at the time she wrote the will. [10] Mrs.

Elizabeth Gidney says that the incapacity of her sister Anne was based on her delusional dislike of herself and that this dislike only started on 2006, despite a loving relationship in the previous years. … [13] Going back to the test provided in

Article 709, first we look at the nature of the will. Anne chose to give back to her husband everything that belonged to him coming in to the marriage and whatever she was entitled to under the pertinent statute of New- Brunswick. It has been a short marriage. She gave her interest in her company to a friend and she gave a bulk of her estate to her best friend since 1990's, Catherine Lemieux. [14] Jurisprudence is clear that is no obligation to leave any money to family members: Desharnais c.

Belleau and the Succession of Ouellet . … [16] And, as an aside, there didn't seem to be any great moral need to leave money to her sister who had inherited the same important wealth that she herself had. She did not leave her sister destitute in order to help a “Cat Memorial Center." She chose to help her best friend knowing that her sister was left in equally good circumstances as herself. … [19] I would also like to point out that Dr.

Morissette's opinion changed considerably during the course of his testimony in Court because he admitted that he had not been made aware before the trial that in fact Anne had been taking her medication regularly, that there had been previous proof of dislike (I refer again to the 1984 break in their relationship and to the testimony of Mrs. Lemieux, Mr. Boidman and Mr Grescoe.) He was not aware that she had not gone to a lawyer to ask to deliberately disinherit her sister.

He had also agreed prior to coming to Court that Anne did have cognitive capacity and he was just concerned with her emotional capacity to disinherit her sister.

(Citations omitted.) [ 27 ] Mrs.

Gidney appealed that decision before the Court of Appeal and tried to adduce the “Medication file” as new evidence. [ 28 ] It is worth reproducing the Court of Appeal’s reasons in regard to that application (judgment D-12): [10] Appellant seeks to introduce new evidence on appeal which, she says, demonstrates that the deceased was not taking anti-psychotic medication at the time of the making of the will. [11] The proposed new evidence includes written statements sent by the Manulife Financial insurance company, printed on August 21, 2015, recording the prescription drug claims for the deceased from January 2010 to September 2012.

Appellant also seeks to adduce a written declaration, dated July 15, 2016, from a pharmacist setting out the names of the drugs on the Manulife statement and their active ingredients. She also seeks to introduce a letter, dated July 25, 2016, from Dr Louis Morissette, an expert who testified at her request at trial. That letter states that none of the drugs mentioned in the Manulife statements are used to treat the deceased’s psychiatric conditions. [12] The deceased suffered from certain psychiatric conditions for which anti-psychotic medication was prescribed as treatment.

The trial judge heard evidence from James Lawson, the deceased’s husband, as to whether she had been properly medicated at the time of making of the will on October 20, 2011. On this point, the trial judge wrote: “Mr. Lawson testified, quite clearly, that she was taking anti-psychotic medication at the time and that, therefore, she was competent [to make the disputed will]” (para. [8]). [13] In her appeal, appellant argues that the judge erred on this point. She says Mr. Lawson did not name an anti-psychotic drug and that the judge misinterpreted his testimony.

Appellant further points to expert evidence before the judge that suggested that if the deceased had not been taking anti-psychotic drugs at the time, she would have suffered from delusions that would have deprived her of testamentary capacity, thereby impugning the validity of the will. [14] Should permission be granted to adduce this new evidence on appeal? [15] It should not. The motion should be dismissed. [19] Second, the evidence is not “indispensable” as that concept has been considered in the decided cases.

Appellant argues in her motion that as a result of this evidence from the insurance company, “it is now clear and without a doubt that during the period of September 2010 to September 2012, Anne Robin Lawson was not taking anti-psychotic medication at the time of the signing of the will, namely, on October 20, 2011, Anne Robin Lawson did not have the capacity in law to sign the will” (para. 23). In making this assertion, appellant wrongly assumes that any and all medication taken by the deceased would have been recorded on the insurance claims. This is not necessarily the case.

Had the evidence been before the trial judge, it would likely not have brought about a different result. [20] Indeed, the evidence at trial indicated that the deceased ordered medication on the internet at low cost and had it delivered to her home by mail. And in any event, there was evidence from different sources, based on her behaviour at the time, indicating that the deceased was taking the anti-psychotic medication, including the fact that she did not show signs of a relapse of psychosis.

It may further be recalled that the attorney who attended to the preparation of the will and his assistant gave evidence that the deceased seemed normal at the time she made the will in October 2011, again suggesting that she had access to anti-psychotic drugs, even if she did not claim reimbursement from the insurance company. In other words, notwithstanding the proposed new evidence, the proof at trial does suggest that the deceased was taking the relevant medication.

The new evidence would not have affected the outcome of the case, in that it does not prove the contrary, much less that the deceased was incapable of making a will. [ 29 ] Moreover, with respect to the St. Stephen medical file, the Plaintiff tried several times to obtain from Mrs. Gidney the identity of the expert whose services she said she was going to retain. Mrs. Gidney had said several times that she was going to take care of mandating such an expert herself. The evidence also shows that she did not keep the Plaintiff informed of the steps she took in this regard. [ 30 ] In fact, in a letter sent to Mrs.

Gidney on March 28, 2014, Mtre Corbo was very clear that it was important to file the expert report by July 31, 2014, as the trial had been scheduled for three days starting on November 17, 2014. In addition, Mtre Corbo stated the following (D-2 at 509): As I previously instructed, you must give a mandate to an expert psychiatrist immediately to review the medical records of your late sister. The expert psychiatrist of your choosing can assist us and help us prepare for Dr. Laurie Potter's examination.

I believe it would be much more efficient and practical if the expert attends the examination. [ 31 ] Mtre Corbo subsequently reminded her several times (D-2 at 514 and 528). [ 32 ] The Defendant, who was annoyed by these reminders of her obligations regarding the mandate that had to be given to a medical expert and by the fact that the Plaintiff was reminding her of her overdue accounts, answered as follows on June 11, 2014 (D-2 at 529): From the start, it has been my responsibility to obtain expert medical opinion which is to be made available by 31 July 2014. This is being done.

I don't understand why you continue to concern yourself with this. [ 33 ] Mtre Arnault testified that he was very surprised to learn on July 31, 2014, from the lawyer representing the other party, that Mrs. Gidney had contacted him and provided the expert report to him directly.

[ 34 ] Pursuant to the foregoing, the Plaintiff immediately informed Mrs. Gidney of the following (D-2 at 543): Ms Gidney, Opposing counsel communicated with us today in order to inform us that you had called him and that you specifically told him that the communication of an expert report was imminent. Please be advised that pursuant to the Code of ethics opposing counsel cannot communicate with you as long as you are represented by attorney and he therefore informed us about this call. If you have an expert report in your possession please send us same immediately for our review and analysis.

If you have mandated an expert psychiatrist, please provide us with his/her name and contact information, without any further delay. Finally, we hereby summon you at a meeting at our offices in the coming days in order to clarify this situation and more importantly our on-going legal mandate. Awaiting your response, we remain. [ 35 ] In regard to the file concerning the contestation of Anne’s will, Mtre Arnault stated that he informed his client from the start that the chances of success in that case were minimal.

The Defendant even admitted that her previous counsel had also come to this conclusion and recommended that she not go forward with this case. [ 36 ] Finally, the evidence shows in a clear, unambiguous and precise manner, that Mrs. Gidney was not only perfectly informed, but also quite proactive in the management of all her files, including the file concerning her sister, Anne. [ 37 ] In view of all the foregoing, the Court is unable to come to the conclusion that the Plaintiff did not comply with its ethical obligations. In fact, Mrs.

Gidney had significant legal experience and was very familiar with how lawyers function, as this was not the first time she was involved in legal proceedings. [ 38 ] The evidence shows that monthly invoices were sent to Mrs. Gidney throughout the entire course of the mandate. [ 39 ] Applying the criteria set out in the case law, [2] the Court concludes that the unpaid legal fees of $16,009.01 in the Catherine Lemieux file have been established and that they are due.

Larry South File [ 40 ] The evidence shows that several draft proceedings were exchanged between the parties. [3] [ 41 ] The evidence also shows that when the Defendant testified before Capriolo J.S.C in November 2014, she admitted that the documentation was incomplete in regard to the determination of the loss, among other things. [4] [ 42 ] Once again, the evidence shows that the Defendant controlled the various aspects of that file very well and that the parties communicated regularly among each other to follow up on its progress. [ 43 ] From all of the documentary and testimonial evidence, the Court is unable to find that the Plaintiff committed any fault whatsoever in the context of that mandate and accordingly concludes that the unpaid invoices in the amount of $3,176.76 are due and payable.

The cross-application [ 44 ] In view of the foregoing and the fact that the Court concludes that the Plaintiff did not commit any professional fault in the performance of the two mandates, the cross-application will not be granted. However, even if it had been established that the Plaintiff committed a fault in the performance of the mandates, the damages claimed by Mrs. Gidney have no causal connection with what is contractually alleged against the Plaintiff. [ 45 ] In fact, Mrs.

Gidney testified emotionally at the hearing that her entire family had been swindled by Larry South and Monique Rasetti in those files. She said that she has lost everything that had value and that was important to her in her life, including her dog, her friends and her social life. She spoke about the deaths of loved ones and even said that her recent divorce could be attributed to all those files. [ 46 ] Unfortunately for Mrs.

Gidney, the damages claimed are in no way related to the actions or omissions (if any exist, a conclusion that the Court cannot reach) of the Plaintiff in the mandates or in the continuation of the mandates in March 2013. [ 47 ] In view of the foregoing, the Court has no other choice but to dismiss the cross-application. FOR THESE REASONS, THE COURT: GRANTS the originating application; oRDERS the Defendant, Mrs. Elizabeth Gidney, to pay the sum of $19,185.77, with interest at the legal rate and the additional indemnity under

article 1619 of the Civil Code of Québec , as of August 27, 2015; THE WHOLE , with costs in favour of the Plaintiff, Arnault Thibault Cléroux, avocats; DISMISSES the cross-application ;

THE WHOLE , with costs in favour of the Cross-defendant, Arnault Thibault Cléroux, avocats. __________________________________ DANIEL BOURGEOIS, J.C.Q. Mtre Caroline Bourbonnais ARNAULT THIBAULT CLÉROUX, AVOCATS S.E.N.C. Counsel for the Plaintiff Mtre Steven Mark Kmec S. Mark Kmec, avocats Counsel for the Defendant Dates of hearing: March 13, 14 and 15, 2019