2014 QCCQ 9653, 2014 QCCQ 9653

Chen c. Oiknine & Associés 2014 QCCQ 9653 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-22-194761-121 DATE: October 10, 2014 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD, J.C.Q. YOW JANE CHEN Plaintiff v.

OIKNINE & ASSOCIÉS and JAY TURNER and DANIELLE OIKNINE and ERIC CHOUEKE Defendants JUDGMENT [ 1 ] Yow Jane Chen seeks $52,881.53 from law firm Oiknine & Associés and lawyers Jay Turner, Danielle Oiknine and Eric Choueke for alleged overbilling and professional errors. [ 2 ] In addition to a monetary award against the defendants, Ms Chen seeks to have declared illegal a settlement in a case in which the defendants acted for her, and a statement that their behaviour constituted “a premeditated fraud which caused Plaintiff suffering serious financial loss and mental plus physical pains”.

The Court finds that these demands are unfounded since they are not supported by any evidence. [ 3 ] Lastly, Ms Chen seeks a court order to force the defendants to provide statements for all their bank accounts for the period from August 1, 2011 to December 31, 2011 and an order to obtain “a written authorization to Plaintiff to agree that all their banks could provide all the information related to this case to Plaintiff;”. [ 4 ] Concerning the latter applications for court orders, the Court settled them during trial by maintaining an objection to the production of the defendants’ bank statements since they are in no way relevant to the settlement of the dispute.

The Court rejects Ms Chen’s application to obtain written authorization from the defendants to give her access to their bank records, since it is illegal and irrelevant. [ 5 ] To settle the case, the Court reviewed each item in Ms Chen’s monetary claim and ruled on its validity. [ 6 ] In civil law, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided for in

article 2803 of the

Civil Code of Québec ( C.C.Q. ) which states “a person wishing to assert a right shall prove the facts on which his claim is based”. [ 7 ] The Court must weigh the probabilities pursuant to

article 2804 C.C.Q. which states “evidence is sufficient if it renders the existence of a fact more probable than its non-existence”. In other words, the Court must establish what is more probable and likely. Claim items a.

Legal fee after judgment (which should be paid by former Defendant Yan, Defendants exempted Yan this amount without asking the consent from Plaintiff and Plaintiff’s right of asking Yan to pay this amount has been deprived; plus, this amount is not supposed to have happened, if Defendants had never purposely defrauded Plaintiff by illegally concealing C.p.c. 733 and by ridiculously executing C.p.c. 543, the examination regarding the woman’s (Yan) assets, which caused Plaintiff not to be able to apply C.c.Q. 2730 simply by the minimum cost ……………………………. $7,127.17 [ 8 ] First, the lead attorney handling Ms Chen’s case against third parties at the Court of Québec (no. 500-22-150064-080), Mtre Jay Turner, testified calmly, patiently and with great credibility concerning all the circumstances of his relations with Ms Chen and the professional services provided. [ 9 ] Mtre Turner explained that the criteria for obtaining a seizure before judgment under

article 733 of the Code of Civil Procedure , CQLR, c.

C-25 ( C.C.P. ) [1] , were not met since no evidence showed that the third parties sued were attempting to relinquish their property to make themselves “judgment proof” or that any other objective facts indicated a reason to fear that, without a seizure before judgment, the recovery of Ms Chen’s debt may be put in jeopardy. [ 10 ] At trial, Ms Chen confirmed this factual situation since she only had “feelings” that the third parties she was suing were attempting to protect themselves against a possible adverse judgment. [ 11 ] On June 16, 2010, Judge Mark Shamie handed down his judgment and found for Ms Chen, ordering the defendants to pay her $30,000 with interest, additional indemnity and costs. [2] [ 12 ] Following the judgment, an examination of the debtor was conducted on September 3, 2010 by Mtre Eric Choueke pursuant to

article 543 C.C.P. [3] Mtre Choueke was replacing Mtre Turner who was on vacation. [ 13 ] Ms Chen claims that she never mandated Mtre Choueke to conduct the examination after the judgment, since the only existing mandate was with Mtre Jay Turner. She relied on

article 2140 C.C.Q. [4] . [ 14 ] Ms Chen’s position is unfounded. The evidence shows that Ms Chen had mandated the law firm Oiknine & Associés, for which Mtre Jay Turner and Mtre Eric Choueke worked, to represent her. Mtre Danielle Oiknine was the lead partner in the law firm. [ 15 ] As a result, there was nothing illegal in the fact that an attorney at Oiknine & Associés other than Mtre Turner conducted the examination under 543 C.C.P.

[ 16 ] In addition, Ms Chen claims that Mtre Choueke conducted the examination following judgment without preparation and without asking questions that would have allowed him to confront the debtor with contrary evidence. [ 17 ] Ms Chen’s criticism of Mtre Choueke is unfounded. He conducted an examination of the debtor following judgment without assistance from a stenographer, asking the debtor questions from a pre-printed form that was sworn in the prescribed way. [ 18 ] Ms Chen failed to show that this approach was incorrect or contrary to any standard of professional conduct. [ 19 ] Since the debtor was under oath following her examination under

article 543 C.C.P. , it remains possible to bring proceedings subsequently if she is found to have been lying. [ 20 ] In addition, in the numerous e-mails between Ms Chen and Mtre Turner, she never mentioned being dissatisfied with the examination of the debtor following judgment conducted by Mtre Choueke. [ 21 ] Concerning Ms Chen’s reference to

article 2730 C.C.Q. [5] , the Court cannot find for her against the defendants since it is impossible for Ms Chen to publish a legal hypothec on her debtor’s property as a result of the judgment handed down on June 16, 2010 because the evidence shows that she has no property. [ 22 ] The amount of $7,127.17 relating to the first item in Ms Chen’s claim is the amount of the last invoice from the firm Oiknine & Associés, dated August 15, 2011. [ 23 ] An analysis of the invoice shows that it covers services in particular for preparatory work and the two last days of the trial on September 4 and December 10, 2009. [ 24 ] This invoice describes services leading to the signing of a statement of out-of-court settlement by Ms Chen’s debtor and the full payment of the judgment handed down by Judge Shamie including capital, interest, additional indemnity and costs. [ 25 ] On August 15, 2011, Ms Chen signed a letter addressed to Oiknine & Associés and worded as follows: Dear Sirs & Madam, Further to the services rendered in the above-captioned matter, I hereby authorize your firm to withdraw the sums held in trust, to make payment pursuant to the invoice in the above-captioned matter dated August 15 th , 2011, in the amount of $ 7 127.17.

I acknowledge receipt of the trust cheque dated 2011/08/16 in the amount of $ 28 127.22 remitted in payment of the balance of the funds received in settlement of the present matter. Yours very truly, (

s) Ms Chen Yow-Jane [ 26 ] In this letter, Ms Chen agreed to pay, without reservation or protest, the last invoice for professional services dated August 15,

2011 in the amount of $7,127.17. [ 27 ] The Court finds no juridical grounds for questioning the validity and reasonableness of this invoice for professional fees. [ 28 ] Lastly, concerning the first item in the claim, a preponderance of evidence shows that Ms Chen agreed, after receiving all appropriate information from Mtre Jay Turner, not to claim any professional fees back from her debtor on grounds of abuse of law or procedure. b.

Investigation fee after judgment caused by Defendant Choueke’s unbelievable examination and Yan’s bad faith (which should be paid by former Defendant Yan, Defendants exempted Yan this amount without asking the consent from Plaintiff and Plaintiff’s right of asking Yan to pay this amount has been deprived : 366.08 X 2 ……………………………….. $672.16 [ 29 ] Following preliminary research by Mtre Turner and the impossibility of locating any seizable property owned by Ms Chen’s debtor, it was agreed to hire a firm of investigators to discover whether the debtor owned any seizable property in Québec. [ 30 ] The report from the firm of investigators established that the debtor was selling one of her properties to her daughter, leading to the presentation on August 9, 2011 of a motion prepared by Mtre Turner, “Plaintiff's Motion for permission to execute a judgment upon the assets of a nominee ("prête-nom")”. [ 31 ] Following the presentation of the motion, Ms Chen’s debtor agreed to settle the case by paying the entire amount of the judgment rendered by Judge Shamie on June 16, 2010. [ 32 ] The Court accordingly finds no juridical grounds justifying Ms Chen’s claim for the reimbursement of the fees paid to the firm of investigators whose services were retained to facilitate the execution of the judgment handed down in her favour.

No evidence shows that any lawyer from the firm Oiknine & Associés committed any fault concerning the payment of those fees by Ms Chen’s debtor. c. Defendant Turner lied about his seniority as more than ten (10) years in 2008 and charged Plaintiff for three hundred dollars (300$) per hour, but he confessed later in front of Judge that his hour rate was only 200$ per hour.

Barreau confirmed that Me Turner was a member since 2006. (300-200) X 6 …………………………………………………… $600.00 [ 33 ] Ms Chen claims that Mtre Turner lied to her concerning his years of experience as a lawyer and improperly charged her an hourly rate of $300, while two invoices sent to Ms Chen by Oiknine & Associés show an hourly rate of $200. [ 34 ] Concerning Mtre Turner’s level of experience, the Court gives preference to his calm, patient and highly credible testimony in which he explained that he could not lie concerning his level of experience since the information is readily available from the Barreau du Québec or the telephone directory for attorneys, which shows the year of calling to the Bar. [ 35 ] Before the firm Oiknine & Associés appeared in the court case in which it sued third parties on behalf of Ms Chen, Ms Chen met

with Mtre Turner on at least six occasions and, after each meeting, gave him a cheque for $300. [ 36 ] For the purposes of the present claim item, she maintains that Mtre Turner’s hourly rate is $200, and claims $600 from the defendants to compensate for the alleged overpayment. [ 37 ] This item of Ms Chen’s claim is unfounded in fact and in law.

The testimony of Mtre Turner, which is not contradicted by Ms Chen, shows that the six pre-hearing meetings lasted longer than one hour, justifying the six payments of $300 each that Ms Chen provided with pleasure, in view of the excellent service given by Mtre Turner. d. Plaintiff had this amount paid for the third trial in 2009, but Defendants never provided Plaintiff receipts and charged this amount two times.

Even Plaintiff sent proof and asked for refund since 2011, Defendants never replied this requirement until August 29, 2013, Defendants could not deny anymore, they were eventually willing to pay back this amount by lying again that this amount was forgotten by mistake …………………………………………………………… $1,252.56 [ 38 ] The defendants have tendered and deposited in the court record the amount of $1,252.56 since they realized, after studying the Oiknine & Associés accounts, that this amount remitted by Ms Chen was not taken into account when the invoice for professional services was prepared. e.

Frais de mise en demeure $25.00 [ 39 ] There is no evidence for this claim item. f. Defendant Turner charged one hundred dollars (50 x 2=100$) and promised Plaintiff to write a demand letter to the daughter of the woman (Yan) regarding the issue of helping her mother empty assets by buying another house under daughter’s name, but Defendant Turner never wrote this letter and these two checks were not among the deducted items of their invoice either ( Exhibit P-23 et Exhibit P-16) …………………………………………………….. $100.00 [ 40 ] The defendants agree to repay this amount to Ms Chen.

g.

Defendants took all the « dépens » directly from the woman (Yan) by signing the settlement and deciding the amount alone without even informing Plaintiff, not only Defendants took this money illegally, now Plaintiff has no way to claim this amount due to Plaintiff cannot make the woman (Yan) to sign another check to pay this amount, so Defendants should be responsible for this cost which was totally paid by Plaintiff ( Exhibit P-24 ) ………………………………………….. $2,039.64 [ 41 ] Concerning the costs for the case in which Ms Chen sued third parties, in which a judgement was made by Judge Shamie on June 16, 2010, the defendants recognize that the amount of the costs that they establish at $476.13 belong to her and have tendered and deposited that amount into court record. [ 42 ] Concerning this claim item, the Court specifies that Ms Chen cannot claim the amounts of the list of costs appearing under the heading “fees” since they belong to the firm Oiknine & Associés pursuant to

article 479 C.C.P. [6] [ 43 ] Concerning the costs claimed from Ms Chen’s debtor, three elements were omitted: − Signification de la requête introductive d’instance : 43,69 $ 20,32 $ − Signification de l’inscription au mérite et de la déclaration pour mise au rôle : 31,79 $ − Signification de la réponse à la défense : 55,67 $ Total : 151,47 $ [ 44 ] The firm Oiknine & Associés should have asked Ms Chen to forward the relevant invoices since she was entitled to claim the additional amount of $151.47 from her debtor.

h.

In the light of the C.c.Q. 1590, Plaintiff require Defendants to pay this amount to compensate her dommages-intérêts totally caused by their fault and, especially their bad faith – purposely not to invoke C.p.c. 733 as early as possible, what wose is, Defendant Turner never informed Plaintiff this law until a few days before applying the action paulienne , (August 9, 2011), which is more than three years later since the first time (July 29, 2008) Plaintiff met Defendant Turner and informed him that the Woman (Yan) owns a big mansion with value of half million, which was the reason that Plaintiff initiated the lawsuit, but Defendant Turner concealed this information to exploit Plaintiff more service fees by not letting Plaintiff recapture her loss as quick as possible; thanks to this premeditated scheme, not only Plaintiff paid much more unnecessary lawyer fees, but Plaintiff suffered enormous physical and mental pains for the three years due to the stress caused by Defendants’ bad faith ……………………………………………………………….. $9,000.00 [ 45 ] First, no evidence of fault or bad faith was presented to support this claim item. [ 46 ] Although Ms Chen may be able to complain about the delay between the rendering of the judgment (June 16, 2010) and the payment by the debtors (August 12, 2011), she cannot establish any fault by Mtre Turner since the debtor paid, as a result of the delay, the interest specified in the judgment, with the additional indemnity. [ 47 ] In addition, Ms Chen provides no justification for the amount of $9,000 claimed for this item. i.

Due to Defendant’s never providing receipts for all the checks Plaintiff paid, Plaintiff had to ask BMO to reprint all these checks and being charged by this amount ( Exhibit P-25) ……………………………………………………………… $65.00 [ 48 ] This claim by Ms Chen is unfounded in fact and in law. [ 49 ] Ms Chen has not established any fault concerning the obligation of the firm Oiknine & Associés or its lawyers to issue any kind of receipt. j. Disbursements & miscellaneous expenses ………………….. $2,000.00 [ 50 ] Ms Chen presented no evidence in support of this claim item.

k. In the light of C.c.Q. 1590, Plaintiff requires Defendants to pay this amount to compensate her dommages-intérêts totally caused by their fault and, especially their bad faith – Defendant Oiknine used the vacation of Defendant Turner as an excuse and assigned Defendant Choueke to execute the examination according to C.p.c. 543 ; by purposely ignoring the two most important facts that woman (Yan) possessed four hundred fifty thousand dollars cash in hand and used her daughter Ya Wen Huang as the prête-nom to empty all the assets, which left Defendant Turner had good excuses not to invoke C.c.Q. 2730 when Plaintiff’s judgement was rendered. Defendant Turner never informed Plaintiff this

article ( C.c.Q. 2730 ), but immediately jumped to much more expensive action paulienne as the last recourse and acting like sympathising Plaintiff’s financial situation by keeping offering useless suggestions to exhaust Plaintiff. When Plaintiff became more and more desperate and agreed to pay another three thousand dollars to Defendants to apply action paulienne , Defendants sold Plaintiffs out by colluding with the woman (Yan) and signed the “settlement out of Court” without even informing Plaintiff.

Aside from suffering above-mentioned enormous physical and mental pains for the three years (2008-2011), nearly three years (2011-2014), Plaintiff must devote huge amount of time and efforts to study and research alone to eventually figure out how Defendants organised this premeditated scheme, owing to no lawyers dared to represent Plaintiff .

For this, Plaintiff has retarded her normal life, including not being able to work fulltime for two years, Defendants must compensate all the time and cost that Plaintiff has sacrificed ………………………………………… $30,000.00 [ 51 ] Ms Chen presents no evidence in support of this claim item. [ 52 ] More specifically, she has established no fault by Mtre Jay Turner or any other lawyer at the Oiknine & Associés firm in her regard.

[ 53 ] On the contrary, the evidence arising from the numerous e-mails between the parties shows that Ms Chen was extremely satisfied with the services provided by Mtre Turner, whom she thanked warmly after receiving the total amount of the settlement remitted in mid- August 2011. [ 54 ] Ms Chen vigorously reproaches Mtre Turner for not collecting any amount to reimburse the professional fees paid in the case in which she sued third parties.

Mtre Turner explained calmly, serenely and credibly that he had suitable informed Ms Chen of the difficulty of claiming any such amount and of the categorical refusal of Ms Chen’s debtor in this respect. [ 55 ] The preponderance of evidence shows that Ms Chen agreed to settle the case with her debtor by accepting the total amount of the judgment in capital, interest, additional indemnity and costs, and also agreed to pay the professional fees of the Oiknine & Associés firm, which the Court describes as extremely reasonable. [ 56 ] In this respect, the Court notes that, on the two invoices sent to Ms Chen, Oiknine & Associés granted her generous “courtesy discounts”, taking into account Ms Chen’s precarious financial situation. [ 57 ] Lastly, the Court adds that no medical evidence supports Ms Chen’s allegations and testimony that the defendants’ alleged faults caused her health problems [ 58 ] In conclusion, Ms Chen is entitled to claim the amount of $251.47 from Oiknine & Associés.

Tender and deposit [ 59 ] The defendants, without admitting fault and simply to buy peace and limit discussions, tendered and deposited into the clerk’s office of the Court of Québec the amount of $2,368.79, broken down as follows: - $1,252.56 to reimburse the payment of December 11, 2009; - $476.13 to reimburse the taxable costs collected; - $113.95 representing interest from July 23, 2012; - $526.15 as costs incurred, representing the disbursements of this case. [ 60 ] Subject to the additional amount of $251.47 that Oiknine & Associés must pay to Ms Chen, the defendants’ tender and deposit into court record is valid and sufficient and discharges all the other items of the claim.

THEREFORE, THE COURT: DISMISSES the re-re-amended motion to institute proceedings filed by Yow Jane Chen against Jay Turner;

DISMISSES the re-re-amended motion to institute proceedings filed by Yow Jane Chen against Danielle Oiknine; DISMISSES the re-re-amended motion to institute proceedings filed by Yow Jane Chen against Eric Choueke; GRANTS in part the re-re-amended motion to institute proceedings filed by Yow Jane Chen against Oiknine & Associés; CONDEMNS Oiknine & Associés to pay to Yow Jane Chen the amount of $251.47 with interest at the legal rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , calculated from August 2, 2012; ACKNOWLEDGES the defendants’ tender and deposit into court record in the amount of $1,842.64 as capital and interest and in the amount of $526.15 as costs incurred; DECLARES this tender and this deposit valid and sufficient to discharge all the other claim items in the re-re-amended motion to institute proceedings filed by Yow Jane Chen, except for the amount of $251.47; ORDERS the clerk of the Court of Québec to remit to Yow Jane Chen the amount of $2,368.79 already paid into court record; THE WHOLE , each party paying his or its costs Henri Richard J.C.Q.

Ms Yow Jane Chen, plaintiff M tre Maria De Michele, (DE MICHELE & AVOCATS) for the defendants Dates of hearing: September 4 and 5, 2014 [5] 2730. Every creditor in whose favour a judgment awarding a sum of money has been rendered by a court having jurisdiction in Québec may acquire a legal hypothec on the movable or immovable property of his debtor. He may acquire it by registering a notice describing the property charged with the hypothec and specifying the amount of the obligation, and, in the case of an annuity or support, the amount of the instalments and, where applicable, the annual Pension Index.

The notice is filed with a copy of the judgment; it must be served on the debtor.