2019 QCCQ 818, 2019 QCCQ 818

Kongoli c. Schirm 2019 QCCQ 818 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32- 701062-178 DATE: January 31st, 2019 ______________________________________________________________________ BY THE HONORABLE Catherine pilon, J.C.Q. ______________________________________________________________________ FLORIAN KONGOLI Plaintiff v.

SYLVIE BÉATRIX SCHIRM Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Florian Kongoli is claiming $14,999.99 from Mtre Sylvie Béatrix Schirm representing the cost of proceedings she instituted on his behalf which, in his opinion, had no chance of success. Mtre Schirm contests the claim since she considers that the proceedings were instituted in accordance with the instructions given by Mr. Kongoli and that she could not guarantee the results. Context [ 2 ] Mr.

Kongoli retained the services of Mtre Schirm in July 2015 to defend him in the divorce proceedings instituted by his wife. He also sought a means of resolving a problem relating to his mother-in-law who was living with him and his wife, and who had sent derogatory remarks to his business partners. [ 3 ] Mtre Schirm developed a strategy to add the mother-in-law as a mise en cause to the proceedings and to obtain a safeguard order to evict both the wife and her mother from the house. [ 4 ] The mother-in-law filed a motion to dismiss her status as a mise en cause .

Following an unsuccessful attempt at settling the issue concerning the mother-in-law, Mtre Schirm ceased representing Mr. Kongoli because of time constraints. [ 5 ] Mr. Kongoli pleaded the motion to dismiss the mise en cause , without representation. The motion was granted. The Superior Court considered that Mr. Kongoli had no legal standing against the mother-in-law. As a result, Mr. Kongoli is claiming reimbursement of the fees paid to Mtre Schirm for her time spent on this issue.

In his view, her work in this regard was useless. [ 6 ] Mtre Schirm argued that adding the mother-in-law as a mise en cause was part of a strategy to avoid a separate defamation proceeding, given that Mr. Kongoli was reluctant to incur additional legal expenses. In addition, she argued it is not unusual to add a third party to divorce proceedings. Moreover, she was not present at the hearing and had no control over the arguments raised by Mr. Kongoli. Finally, according to Mtre Schirm, the reimbursement claimed by Mr.

Kongoli covers work on several other aspects of the file, and not only that dealing with the mise en cause . Analysis [ 7 ] Lawyers have a duty to advise their clients competently. The advice must include overall strategy and tactics with respect to a given matter, but the practice of law is not an exact science. Lawyers cannot guarantee the outcome of a matter, particularly in the context of litigation.

Several factors must be taken in consideration, many of which are outside the control of the lawyer. [ 8 ] Mtre Schirm suggested adding the mother-in-law as a mise en cause as a strategic means of resolving all the family issues globally. A review of case law shows that although it is not frequent, it is possible to add third parties to divorce proceedings. It was therefore not unreasonable to take this approach to which Mr. Kongoli had agreed.

The Court cannot fault Mtre Schirm for the dismissal of the mise en cause , particularly in a context where she did not plead the case. [ 9 ] Given this conclusion, it is not necessary to calculate what part of the fees represented the work to add the mise en cause , but the Court nevertheless notes that there was significant time devoted to other aspects of the matter. FOR THESE REASONS, THE COURT: DISMISSES the demand of the Plaintiff;

CONDEMNS the Plaintiff to pay the Defendant the court costs of $200. __________________________________ CATHERINE PILON, j.c.q. Date of hearing: November 27, 2018