2012 QCCQ 14718, 2012 QCCQ 14718

Franklin (Franklin & Franklin, Advocates) c. Woo 2012 QCCQ 14718 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-119390-096 DATE: December 14, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ Me. DAVID FRANKLIN , doing business under the name Franklin & Franklin, Advocates 4141, Sherbrooke Ouest, bureau 545, Westmount QC H3Z 1B8 Plaintiff v.

HOWARD WOO […], Montréal QC […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] David Franklin is claiming the amended amount of $ 3 829,69 from Howard Woo for professional services rendered. Mr. Woo contests the claim. [ 2 ] Me Franklin presented a motion for the revocation of the judgment rendered against him on April 16, 2012. For the reasons invoked verbally at the hearing, his request was granted. The evidence: [ 3 ] Mr. Woo consulted Me.

Franklin regarding rent owed by his tenants and his desire to end the lease. He provided the firm of Franklin and Franklin with a mandate to act on his behalf. The firm indicated that its fees would be $300 per hour. Following the receipt of a $3,300 retainer, Me. Franklin sent Mr. Woo's tenants a demand letter regarding the payment of all outstanding amounts. [ 4 ] Me. Franklin then instituted proceedings against the tenants in May 2008.

The motion to institute proceedings seeks the termination of the lease, the tenants’ eviction, the remittance of unpaid rent, business taxes and Hydro bills for the leased premises; it also requests a safeguard order. [ 5 ] The tenants filed a defence and cross demand. Their attorney then ceased representing them. Me. Franklin sent the tenants a notice to appoint a new attorney. Following their failure to appear in the file, Me. Franklin prepared the requisite documents in order to obtain judgment by default. [ 6 ] The tenants, however, retained their attorney.

He filed an appearance, a contestation and a cross demand. Me. Franklin prepared an answer to the contestation and a defence to the cross demand. He wrote to the tenants' attorneys regarding the return of the key and the removal of furniture. The case was inscribed for proof and hearing on the merits and a list of exhibits was prepared. [ 7 ] In sum, all the procedures were filed. The case was set for trial for March 18 and 19, 2009. Mr. Woo was kept informed of the procedures, which were sent to him for his review and approval. He was aware of the status of the file both from emails and from correspondence.

[ 8 ] On January 29, 2009, Mr. Woo indicated that he may be selling his building and asked whether the trial could be stopped. He also asked what the current and future fees would be. On February 2, 2009, Me. Franklin requested confirmation of Mr. Woo's position as well as the buyer's intention to deal directly with the tenants. [ 9 ] On February 19, 2009, Mr. Woo confirmed that he wished to terminate all legal proceedings, since the properties had been sold. [ 10 ] After receipt of the above-mentioned e-mail, Me. Franklin filed a Declaration of Attorneys for the Plaintiffs in Order to Cease Representing .

He also advised the tenants' attorneys that the two-day trial, scheduled to begin on March 18 th , would not be proceeding and provided the tenants' attorney with a copy of Mr. Woo's Discontinuance of Action . [ 11 ] Me. Franklin sent Mr. Woo a bill for services rendered. His claim, as set out in his last bill and demand letter, is $1, 117.22. Mr. Woo did not pay the account nor did he respond to Me. Franklin’s demand letter. [ 12 ] Me. Franklin filed the present motion to institute proceedings on June 30, 2009. He subsequently noted an error in the billing. His amended claim comes to $3,829.69. [ 13 ] Mr.

Woo, in his written contestation, maintains he had paid all amounts owed. He summits that after advising Me. Franklin he wanted his case closed, he paid all outstanding amounts and fails to understand why he is being charged for any additional amounts. [ 14 ] At Court, for the first time, Mr. Woo claimed he was not satisfied with the services rendered; he alleged that nothing had transpired in his case. In addition, he maintained that he had never received the bills sent by Me. Franklin. Analysis: [ 15 ] Me. Franklin submitted copies of all the legal proceedings carried out for Mr.

Woo’s benefit, the correspondence exchanged between the parties and the invoices related to the work that was done. [ 16 ] The file shows that Me. Franklin established the amount of his fees and the retainer required before he began to work in the file. He instituted the necessary proceedings and sent Mr. Woo copies of the correspondence, the procedures and the firm's invoices. [ 17 ] Mr. Woo claims he never received the invoices. However, his e-mail address and his mailing address have not changed since the filed was opened.

There is no reason to believe he did not receive the invoices when he had received all the other correspondence. [ 18 ] Mr. Woo claims he paid all sums that were due and did not owe any further amounts of money. However, when Mr. Woo advised Me. Franklin that he may sell his building and wondered whether the trial could be stopped, he asked how much was owed or would be owed. Mr. Woo clearly understood that he had not paid all outstanding amounts in his file. [ 19 ] It is only after the present motion to institute proceedings was filed by Me. Franklin that Mr.

Woo states he paid for all services rendered and nothing more is owing. Then, at the hearing, for the first time, Mr. Woo claimed he was not satisfied with the services, alleging that nothing had been done in his file. [ 20 ] However, the evidence clearly shows that the requisite procedures were taken and Mr. Woo was kept informed throughout the process of all the work that had been done. [ 21 ] Although Mr. Woo did not obtain the remedy he sought, the case was ready for trial and the hearing was set; it was Mr. Woo who put an end to the trial and to Me. Franklin's services. In such circumstances, Me.

Franklin is not responsible for the case coming to an end, without a beneficial result for Mr. Woo. [ 22 ] Me. Franklin has satisfied the Court, by preponderant evidence, that his claim is well founded. The Court considers that Mr. Woo's refusal to pay Me. Franklin’s invoices is without justification. [ 23 ] Accordingly, the Court considers that Me. Franklin is entitled to the payment of his fees for professional services rendered. FOR THESE REASONS, THE COURT: GRANTS the action; CONDEMNS Howard Woo to pay Me.

David Franklin doing business as Franklin & Franklin, Advocates, $ 3 829,69 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Québec , since June 30, 2009 and judicial fees of 99 $.

__________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: October 30, 2012