2017 QCCQ 2561, 2017 QCCQ 2561

Crapanzano c. Main Droit inc. 2017 QCCQ 2561 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-149801-153 DATE: March 17, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ DIANA CRAPANZANO Plaintiff v.

MAIN DROIT INC. -and- AVRUM ISAAC NEUWIRTH Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Diana Crapanzano is suing Main Droit Inc. and Me Avrum Isaac Neuwirth, attorney, for $15,000 for refund of amounts paid for services rendered and for damages as a result of various services performed by Mr. Neuwirth as an attorney. [ 2 ] Mr. Neuwirth denies any professional fault or overcharges and takes a Cross-Application against Ms.

Crapanzano for the amount of $4,287.44 (outstanding invoice: $287.44; moral damages: $4,000) on the basis that Ms. Crapanzano has allegedly acted abusively in her proceedings against him. Questions in issue

a) Has Mr. Neuwirth overcharged Ms. Crapanzano in light of the services performed and the result obtained?

b) Has Mr. Neuwirth committed a professional fault or malpractice?

c) Has Ms. Crapanzano acted abusively in her recourses against Mr. Neuwirth and does she owe payment of the outstanding invoice? Context [ 3 ] In July 2012, Ms. Crapanzano’s mother gave to her sister a mandate in the event of incapacity. In 2013, that sister concluded that her mother was no longer capable. She requested the homologation of the mandate. Ms. Crapanzano was impleaded. [ 4 ] Ms. Crapanzano alleged that her mother was incapable at the time of signing the mandate. Accordingly, she contested the

homologation. [ 5 ] Some eleven (11) years earlier, in July 2001, her mother had signed a previous mandate in the event of incapacity. That mandate designated Ms. Crapanzano or her sister as mandataries. [ 6 ] For the contestation of the homologation, Ms. Crapanzano first selected an attorney other than Mr. Neuwirth. [ 7 ] Afterwards, that attorney’s mandate was terminated. [ 8 ] For a while, Ms. Crapanzano tried to represent herself but was told by the Court that she should obtain legal representation. [ 9 ] On March 27, 2014, she hired Mr.

Neuwirth [1] and signed a “Mandate and Agreement as to Professional Services” ( Professional Mandate ). [ 10 ] In April 2014, Ms. Crapanzano revoked Mr. Neuwirth’s Professional Mandate with the intention of again representing herself [2] . At that point, her plan was that Mr. Neuwirth would act as a “coach” for her self-representation [3] . [ 11 ] In May 2014, Ms. Crapanzano was again requested by the Court to obtain legal representation. She then came back to Mr. Neuwirth. [ 12 ] On May 13, 2014, Ms. Crapanzano re-signed the Mandate and Agreement as to Professional Services and reinstated Mr.

Neuwirth as her attorney. [ 13 ] Through the months of May to September 2014, Mr. Neuwirth worked on Ms. Crapanzano’s file. Mr. Neuwirth prepared Ms. Crapanzano’s case for trial including, as per his recommendation, obtaining expert evidence. [ 14 ] During this period, Ms. Crapanzano refers to different incidents with regard to which Mr. Neuwirth allegedly breached his professional code of ethics. She also pleads that those alleged ethical violations give rise to the professional liability of Mr. Neuwirth and constitute malpractice. She also submits that he overcharged for his services. [ 15 ] Ms.

Crapanzano requests a refund of all amounts paid ($11,861.96). She also claims $3,138.04 as moral damages, trouble and inconvenience. [ 16 ] On September 28, 2014, Ms. Crapanzano terminated the Professional Mandate. This led to a conflict over the return of her file. [ 17 ] Ms. Crapanzano then hired another attorney to continue her case. [ 18 ] The trial took place on April 9 and 10, 2015 [4] . [ 19 ] Ms. Crapanzano’s contestation of the motion for homologation was dismissed, with costs. [ 20 ] The Court concluded that Ms. Crapanzano was not impartial.

The Court also concluded that her testimony contained an “invraisemblance” or disconnect in light of the overall evidence.

Analysis and Decision

a) Has Mr. Neuwirth overcharged Ms. Crapanzano in light of the services performed and the result obtained? [ 21 ] From March to September 16, 2014, Defendant charged Plaintiff $10,330, plus taxes [5] . Plaintiff paid each invoice promptly and upon receipt. [ 22 ] The Court has considered the factors established by the Bar of Quebec to determine “fair and reasonable fees” set out in the Code of Professional Conduct of Lawyers [6] . [ 23 ] According to Mr.

Neuwirth, he had given an initial quote of $15,000 to complete the mandate, not including taxes and disbursements. [ 24 ] All the time charges and rates are indicated in the invoices. Plaintiff had very little in specifics to criticize regarding the amounts charged. The hourly rate charged was $250, as specified in the Professional Mandate. [ 25 ] Ms. Crapanzano testified that she got the impression that her file was Defendant’s only file. However, there is no evidence that Mr. Neuwirth overworked the file. [ 26 ] Ms. Crapanzano states that she was misled as to Mr. Neuwirth’s years of experience as an attorney.

The internet documents [7] available to Plaintiff and filed by her indicate 18 years of prior experience. Ms. Crapanzano complains that at the time Mr. Neuwirth really only had two (2) years of experience as an attorney, since he was admitted to the Bar of Quebec in 2012. [ 27 ] However, the documentation refers to the 18 previous years as “experience as an entrepreneur”, not as a lawyer. [ 28 ] Mr. Neuwirth explained to the Court that being an attorney is a second career for him, after some 18 years in business. [ 29 ] Nonetheless, other documents included by Ms. Crapanzano state that Mr.

Neuwirth was a graduate of the Quebec Bar School in 2011. [ 30 ] Although it would have been clearer to highlight his actual years of practice as an attorney, Ms. Crapanzano has not established that Defendant committed any fault of misrepresentation regarding his previous years of experience as an attorney. [ 31 ] Furthermore, Ms. Crapanzano has not established any negligence with respect to the services rendered and charged by Mr. Neuwirth. [ 32 ] Regarding the amount in issue, Mr. Neuwirth stated that Ms.

Crapanzano was of the view that the principal asset of her mother was at stake, namely an immovable valued at $400,000.

[ 33 ] Mr. Neuwirth appears to have worked diligently and thoroughly in the preparation of the case. [ 34 ] With regard to the result obtained, it is difficult to evaluate this factor in the present matter since Ms. Crapanzano terminated Mr. Neuwirth’s mandate well before the trial took place. Mr. Neuwirth therefore never had an opportunity to actually deliver a “result”. [ 35 ] For the above reasons, the Court concludes that the amounts charged in the invoices from March to September 16, 2017 were fair and reasonable and there is no reason to grant a reduction of them.

b) Has Mr. Neuwirth committed a professional fault or malpractice? [ 36 ] In this regard, Ms. Crapanzano refers to several actions of Mr. Neuwirth. Ms. Crapanzano alleges that they were in violation of Mr. Neuwirth’s professional ethics. Proceeding without prior approval [ 37 ] Ms. Crapanzano alleges that on May 14, 2014, Mr. Neuwirth modified several of the aspects of a discussed proposal of settlement before obtaining her approval [8] .

She accepted the changes later. [ 38 ] She also states that he postponed a motion without her approval on June 26, 2014 [9] . [ 39 ] However, since the postponement was refused by the opposing party and the hearing eventually took place, Ms. Crapanzano has not established that she suffered a prejudice. [ 40 ] In the matter of In Re Aliments Supra Inc. v. Gestion Joseph Borsellio Inc . [10] , the Court of Appeal described the authority of an attorney acting on behalf of his or her client in the context of legal proceedings as follows: “L'avocat est maître de son dossier.

Il peut régler des questions procédurales reliées au déroulement harmonieux et expéditif du dossier sans avoir à requérir de son client une autorisation spéciale. Cela découle des pouvoirs des mandataires agissant dans des circonstances similaires ( art. 2136 et 2137 C.c.Q. ). Les commentaires suivants de Baudouin et Deslauriers m'apparaissent pertinents même s'ils portent sur la responsabilité de l'avocat: La responsabilité de l'avocat est d'autant plus grande lorsqu'il agit en vertu d'un mandat ad litem .

Dans ce cas, en effet, il devient, à vrai dire, seul maître du choix de l'agencement et du déroulement de la procédure et doit utiliser au meilleur des intérêts de son client, les recours que la loi lui donne. C'est lui et non le client qui gère le dossier et il doit le faire avec la même rigueur que celle qu'aurait en l'espèce un avocat raisonnablement avisé, prudent et diligent.” [ 41 ] Ms. Crapanzano also complains that on September 15, 2014, Mr. Neuwirth agreed with the opposing counsel to postpone the motion again to January 15, 2015. [ 42 ] That is not accurate.

The motion had been scheduled for September 15, 2014, on a pro forma basis only. On that date, the trial on the merits was scheduled for January 2015. [ 43 ] According to Mr. Neuwirth, that was the earliest available date.

[ 44 ] On January 15, 2015, after Ms. Crapanzano had terminated the Professional Mandate of Mr. Neuwirth, the retained expert of Ms. Crapanzano was unwell and the matter was again postponed to April 9, 2015. Unfortunately, the expert passed away in February 2015. [ 45 ] Ms. Crapanzano blames Mr. Neuwirth for the eventual unavailability of the expert to testify. That is not reasonable. Mr. Neuwirth was not responsible for the sickness and later death of Ms.

Crapanzano’s expert and he could not reasonably have anticipated such developments. [ 46 ] Furthermore, at the eventual trial, the Court admitted into evidence the reports of the expert, even in his absence. Therefore, Ms. Crapanzano has not established either a fault on the part of Mr. Neuwirth or a resulting prejudice. Requests of Ms. Crapanzano to Mr. Neuwirth to stop working, his alleged non- compliance and threats of Mr. Neuwirth to withdraw from the file [ 47 ] Ms. Crapanzano complains that she requested Mr. Neuwirth to suspend working on her case on several occasions and that he did not comply.

This occurred on June 9 [11] , September 17 [12] , and September 28 [13] , 2014. [ 48 ] Ms. Crapanzano was trying to limit legal fees. Mr. Neuwirth was of the view that he had professional obligations under the Professional Mandate to carry out certain work and that he could not continue as Ms. Crapanzano’s attorney, unless he could do what he felt was necessary to properly represent her [14] . [ 49 ] This resulted in ongoing tension between the parties up until September 28, 2014. Until that time, Ms. Crapanzano had deferred to Mr.

Neuwirth and allowed him to carry out the work that he stated was required. [ 50 ] But she continuously sought to limit the services that he desired to carry out. [ 51 ] Mr. Neuwirth felt that Ms. Crapanzano was unduly interfering in his work and was trying to “play lawyer”. He said he could not work under such conditions. [ 52 ] This continuous tension hampered the administration of the file. [ 53 ] Ms. Crapanzano wanted to send a subpoena to certain witnesses for the trial, including the notary before whom the latest mandate in the event of incapacity was executed. Mr.

Neuwirth stated that it was not necessary as the other side had already undertaken to subpoena that witness [15] . [ 54 ] Ms. Crapanzano alleges that Mr. Neuwirth did not have the right to advise that he would withdraw from the case unless his professional counsel was followed and that he had no right to carry out services when she had instructed him not to do so. [ 55 ] On his part, Ms. Neuwirth was of the view that his professional independence was not respected by Ms. Crapanzano and that he could not at the same time exercise that independence and comply with Ms.

Crapanzano’s many inflexible instructions regarding every aspect of the administration and direction of the file. [ 56 ] The following partial extracts are representative of the exchanges which occurred. [ 57 ] Mr. Neuwirth wrote to Ms. Crapanzano:

“Now, if you want absolute control in your file and you want to independently run the matter, that is your choice, which I respect immensely. However, if that is the course you want to take, I would have no choice but to resign, since I cannot do my job professionally and simultaneously have my hands tied and my every move impugned. Please advise.” [16] [ 58 ] Ms. Crapanzano replied: “I also have worked hard on this case and [that] (sic) every detail is important to me.

Whether the detail is minuscule or significant I do expect to be informed and for the both of us to remain on the same page.” [17] [ 59 ] According to the applicable rules, certain circumstances permit an attorney to withdraw from a case and end his mandate. [ 60 ] The Code of Professional Conduct of Lawyers [18] codifies in part those rules as follows: § 3. — Termination of mandate 48. Unless it is at an inopportune time, a lawyer may, for serious reasons, cease acting for a client.

The following, in particular, constitute serious reasons: (1) when there is a loss of confidence between the lawyer and the client; […] (4) when the lawyer is in a situation of conflict of interest or in a context in which his professional independence could be called into question. [ 61 ] In the Court’s view, Mr. Neuwirth was precisely in the situation of a loss of confidence between himself and his client. [ 62 ] Also, his professional independence to carry out the strategy he had developed was called into question. [ 63 ] In the circumstances, Mr.

Neuwirth had the right to advise of his intention to withdraw. [ 64 ] It should be noted that, in the end, Mr. Neuwirth did not actually withdraw. He gave Ms. Crapanzano a choice of either letting him do his job as he felt was necessary in his professional judgment or that he would have to withdraw from the case. [ 65 ] On September 28, 2014, Ms. Crapanzano decided to revoke Mr. Neuwirth’s mandate [19] . [ 66 ] The Court concludes that Mr. Neuwirth committed no professional fault by advising of his intention to withdraw from the file. Furthermore, it was Ms.

Crapanzano who ultimately decided to revoke the mandate of Mr. Neuwirth.

Revocation of mandate by Ms. Crapanzano and difficulties in obtaining return of her file [ 67 ] On September 28, 2014, in the evening, Ms. Crapanzano revoked Mr. Neuwirth’s mandate [20] . Two days later, she filed into the Court record a revocation of mandate and a personal appearance [21] . [ 68 ] Ms. Crapanzano immediately requested to pick up her file [22] . [ 69 ] Mr. Neuwirth took the position that he would not release the file until Ms. Crapanzano signed a waiver [23] . Ms. Crapanzano refused and said that it was not legal to make such a request in order to obtain her file. [ 70 ] In Ms.

Crapanzano’s opinion, the purpose of the release was to prevent a possible recourse against Mr. Neuwirth regarding his past services. [ 71 ] In his testimony before the Court, Mr. Neuwirth stated that the proposed release was not intended to cover his past services but instead possible consequences resulting from the revocation of his Professional Mandate three (3) months before the scheduled trial. He feared that a new attorney may not be able to properly represent Ms. Crapanzano’s interests. [ 72 ] The contentious part of the proposed waiver reads as follows: “5.

I hereby acknowledge and agree that Maître Avrum Isaac Neuwirth or his firm, Main Droit Inc., shall not be liable to me or any other person for any claims, losses or damages, arising directly or indirectly, from the termination of the aforementioned mandate and the cancellation of our legal services contract.” [24] [ 73 ] The clause and its possible legal effect are unfortunately not clear. Since the clause was drafted by Mr. Neuwirth, it must be interpreted against him [25] . [ 74 ] The waiver does not limit its effect to consequences after the termination of the mandate.

It covers all claims “arising directly or indirectly” from the termination of the mandate. That could cover services rendered before and up to the termination of mandate. [ 75 ] Ms. Crapanzano refused to sign it. The whole matter was referred to the Quebec Bar which advised that the transfer and remitting of the file could not be subject to such a waiver. [ 76 ] It is clear that a simple unilateral notice by Mr. Neuwirth to Ms.

Crapanzano of the possible adverse consequences of transferring the file three (3) months before the trial would have been sufficient. [ 77 ] Unfortunately, as a result of the waiver issue and other issues, the whole transfer process of the file was brought to a halt.

[ 78 ] The full content of Ms. Crapanzano’s file was only given to her on November 20, 2014. Ms. Crapanzano submitted that the long, protracted and laborious process to obtain her file caused considerable inconvenience and prejudice to her and increased her later costs to put the case in a state of readiness for trial for January 15, 2015. [ 79 ] As appears from Mr. Neuwirth’s draft release, he knew full well that time was of the essence since the trial was to proceed in less than four (4) months, including the year-end holiday period. [ 80 ] As a result of Mr.

Neuwirth’s insistence upon the signature of the waiver, that already short period was reduced to being essentially the hectic period before the year-end holiday. Ms. Crapanzano states that that situation caused additional fees on her part as her new attorneys had to prepare the case for trial under urgent circumstances and within an extremely short deadline. [ 81 ] In light of the evidence, the Court concludes that in refusing to provide Ms. Crapanzano with her file and making such release subject to the execution of a waiver of liability, Mr. Neuwirth committed a fault under Articles 1458 and 2100 C.C.Q.

Those articles read as follows: 1458. Toute personne a le devoir d’honorer les engagements qu’elle a contractés. Elle est, lorsqu’elle manque à ce devoir, responsable du préjudice, corporel, moral ou matériel, qu’elle cause à son cocontractant et tenue de réparer ce préjudice; ni elle ni le cocontractant ne peuvent alors se soustraire à l’application des règles du régime contractuel de responsabilité pour opter en faveur de règles qui leur seraient plus profitables. 1458. Every person has a duty to honour his contractual undertakings.

Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. 2100. L’entrepreneur et le prestataire de services sont tenus d’agir au mieux des intérêts de leur client, avec prudence et diligence.

Ils sont aussi tenus, suivant la nature de l’ouvrage à réaliser ou du service à fournir, d’agir conformément aux usages et règles de leur art, et de s’assurer, le cas échéant, que l’ouvrage réalisé ou le service fourni est conforme au contrat. Lorsqu’ils sont tenus au résultat, ils ne peuvent se dégager de leur responsabilité qu’en prouvant la force majeure. 2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence.

Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract. Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force. In light of the evidence, the Court arbitrates that the amount corresponding to the prejudice suffered by Ms. Crapanzano in that regard is $1,400.

c) Has Ms. Crapanzano acted abusively in her recourses against Mr. Neuwirth and does she owe payment of the outstanding invoice? [ 82 ] Mr. Neuwirth takes a Cross-Application claiming payment of the outstanding invoice No. 0132 dated September 30, 2014 [26] for $287.44 ($250, plus taxes). [ 83 ] He also claims $4,000 as damages against Ms. Crapanzano on the basis that her recourses at the Quebec Bar and the present

instance constitute harassment and a fault. Mr. Neuwirth states that Ms. Crapanzano has insisted on getting documents that she already possessed and that her unfounded recourses have caused him a great loss of time. [ 84 ] With respect, the Court sees no merit to Mr. Neuwirth’s claim for damages. [ 85 ] Ms. Crapanzano no doubt vigorously pursued the respect of what she perceived as her rights. [ 86 ] No doubt Mr. Neuwirth spent a great deal of time dealing with Ms.

Crapanzano’s claim at the Quebec Bar and in dealing with the present case. [ 87 ] But there appears to be neither abuse nor bad faith on the part of Ms. Crapanzano. [ 88 ] Mr. Neuwirth cannot claim for the loss of his time in dealing with Ms. Crapanzano’s complaints. That is, to a large extent, simply part of being a professional service provider. [ 89 ] Additionally, the relationship between Mr. Neuwirth and Ms. Crapanzano was further strained and the actions of Ms. Crapanzano were in part required by Mr. Neuwirth’s unfortunate insistence upon the signature of the proposed waiver. [ 90 ] Ms.

Crapanzano refuses to pay Mr. Neuwirth’s invoice on the ground that she had asked Mr. Neuwirth to stop working on her file since September 17, 2015. [ 91 ] However, she had asked him to stop working on her file in the past and he had made clear that he was required to carry out the work necessary to meet his professional obligations. She had always accepted that and had always paid the previous invoices in those circumstances. [ 92 ] It was only on September 28, 2014 that Ms.

Crapanzano finally decided to revoke the mandate. [ 93 ] The invoice in issue details the following services [27] : “September 28-30, 2014 1. Phone call to Dr. Wein to obtain faxed documentation and his MMSE exam as instructed by you on Sept. 15 @ court house 2. Reception and study of documentation and further conversation with Dr. Wein on that what is required for further documentation and to assure his presence for trial on Jan. 15, 2015 3. Draft notice of communication of “amended expert exhibit” 4. Service notice of communication of “amended expert exhibit” to opposing counsel 5.

File notice of communication of “amended expert exhibit” at court

6. Draft notice of revocation 7. Pending your signature, service notice of revocation upon opposing counsel and filing in court” [ 94 ] It was the professional obligation of Mr. Neuwirth to end his mandate in a manner that was as least prejudicial as possible to the interests of Ms. Crapanzano. [ 95 ] The first two items mentioned in the invoice were follow-up services to previous commitments that he had taken in the file. Furthermore, those services were rendered before the mandate was actually terminated. It was only after he informed Ms.

Crapanzano of these services in his e-mail of September 28, 2014 that she terminated his Professional Mandate. Since those services were rendered before his mandate was revoked, they will be paid. [ 96 ] The items detailed as 3, 4 and 5 of the invoice pertain to the drafting of the notice and communication of an amended expert opinion. [ 97 ] Mr.

Neuwirth explained that even though the agreed deadline to file additional documents expired on September 15, 2014 at the deadline set for filing of the Common Declaration of Readiness, he had a verbal agreement with opposing counsel that the latter would not contest the filing of a supplemental document on the condition that such filing occurred within approximately two (2) weeks of that time, namely by September 30, 2014. [ 98 ] To the credit of Mr.

Neuwirth, he prepared the notices of the exhibit and took the necessary measures to file the document within that time. [ 99 ] It is to be noted that, at the eventual trial for the contestation of the homologation, that additional expert report was entered into evidence despite the passing of its author [28] and was considered by the Court. [ 100 ] As this undertaking was agreed to before the mandate was revoked, and the work was done in order to complete the mandate, it should also be paid. [ 101 ] However, the two last items (6 and 7) on the invoice pertain to the revocation, which was the document that included the “waiver” clause. [ 102 ] For the reasons already stated, the time spent for the preparation of such a document should not be billed to Ms.

Crapanzano. The Court will accordingly reduce the invoice by $75, including taxes, and reduce it to $212.44. [ 103 ] The Court will apply judicial compensation to the respective amounts owed between the parties. [ 104 ] Legal costs will be granted to Ms. Crapanzano. FOR THESE REASONS, THE COURT: CONDEMNS Defendants Main Droit Inc. and Avrum Isaac Neuwirth to pay Plaintiff Diana Crapanzano the amount of $1,400;

CONDEMNS Plaintiff Diana Crapanzano to pay Defendants Main Droit Inc. and Avrum Isaac Neuwirth the amount of $212.44; OPERATES COMPENSATION with regard to the above amounts and CONDEMNS Defendants Main Droit Inc. and Avrum Isaac Neuwirth to pay Plaintiff Diana Crapanzano the amount of $1,187.56, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , commencing upon the institution of the present legal proceedings, namely September 24, 2015; WITH LEGAL COSTS of $200 in favour of Diana Crapanzano. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: January 24, 2017