Leland Campbell Kondratoff Persick LLP - v. –, 2020 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2020 SKPC 42 Date: October 29, 2020 File: 115/19 Location: Yorkton _____________________________________________________________________________ Between: Leland Campbell Kondratoff Persick LLP - and – Walter Kowalyshyn and Joyce Kowalyshyn K. Stamatinos For the Plaintiff J. Kowalyshyn For the Defendants _____________________________________________________________________________ JUDGMENT R. GREEN , J _____________________________________________________________________________ I. INTRODUCTION [ 1 ] The plaintiff is a law firm in Yorkton.

It sues Walter Kowalyshyn (hereafter “Walter”) and Joyce Kowalyshyn (hereafter “Joyce”) for $18,338.64, for legal services it claims were provided to them. These services related to a family estate dispute, in which Richard Leland, Q.C. - now retired but at the relevant time a practicing lawyer and a partner in this law firm - was hired to make an application to the Court of Queen Bench to remove a sibling of the defendants Walter and Joyce as executor of their father’s estate. There is no claim for interest under the agreement, only under The Pre-judgment Interest Act , SS 1984-85-86, c P-22.2 .

[ 2 ] Walter, of Regina, replies that he did not hire or give instructions to Mr. Leland or any other lawyer in this law firm to provide legal services to him or anyone else. He does not believe he should be a defendant in this action. Joyce, of Vancouver, B.C., replies that she hired Mr. Leland to bring this court application, and that it was agreed between herself and Mr. Leland that the application would be done for $3,500.00, which was to be collected out of the family estate.

She views the account, upon which this action is brought, as outrageous. [ 3 ] There was no written agreement respecting the terms upon which Mr. Leland was retained. If there had been, the confusion and emotion surrounding this action could have been avoided. That said, I appreciate that many legal services agreements are made orally. As a result, I am left to assess the evidence at the trial to determine what was agreed between the parties and, further, what is owing under any agreement that is proved by the plaintiff. [ 4 ] Joyce spoke by telephone with Mr. Leland on September 14, 2016.

I am satisfied that, during this initial conversation, it was agreed that Mr. Leland would prepare and bring court application to remove her brother as the executor. At the trial of this action, however, the parties disagreed on whether the legal fees for this court application were to be based on: (1) a fixed sum for the legal services provided; or (2) a fee for service based on the number of hours of legal services provided at an hourly rate. [ 5 ] The plaintiff presented two witnesses: Mr. Leland and lawyer Michelle McCrea (formerly Michelle Brassard, who is subsequently referred to as “Mrs.

McCrea”) who assisted Mr. Leland with the legal work involved in this case. The defendants presented four witnesses: Joyce, Walter; and one of their siblings and his wife (Eugene Kowalyshyn and Sandra Kowalyshyn) who testified by telephone from their home in Kelowna, British Columbia. Most of the 16 exhibits filed by the plaintiff, and the 13 exhibits filed by defendants, were emails and attachments sent between the parties. [ 6 ]

Section 73.1 of The Legal Professions Act, 1990 , SS 1990-91, c L-10.1 [ Act ] provides: 73.1(1) If, in an action pursuant to The Small Claims Act, 2016 respecting a bill of fees and disbursements with respect to services performed by a member, an issue arises respecting the amount of the bill and no application has been made pursuant to

section 67, the judge, notwithstanding

section 67, has jurisdiction to determine the amount of the bill.

(2) Subject to an appeal pursuant to The Small Claims Act, 2016 , a determination by a judge pursuant to subsection (1) is final. [ 7 ] In this case, no party asked for the account in question to be assessed by a registrar at the Court of Queen’s Bench, as set out in s. 67 of the above Act . As a result, I will exercise my jurisdiction to, amongst other issues, determine the amount of the account.

Ultimately, as explained by Judge Demong in Willows v Key , 2020 SKPC 29 (at para 10-15 [ Key ]) in assessing and determining the amount owing on this account, I must determine what amount is fair and reasonable, with the plaintiff bearing the onus of showing what that amount should be. [ 8 ] Having considered the pleadings, and the evidence and arguments presented in Yorkton at the trial on September 28, 2020, in my view, the following issues are to be determined:

(1) Is Walter properly named as a defendant in this action?

(2) Was the agreement for legal services between Joyce and Mr. Leland a fixed fee agreement or a fee for service agreement?

(3) Regardless of the form of agreement, what is a fair and reasonable amount for the legal services provided in this case? And

(4) What, if any, costs of the proceeding should be awarded to any of the parties, and what, if any, prejudgment interest should be ordered? II. BACKGROUND [ 9 ] On September 13, 2016, in advance of a scheduled telephone conversation the next day with Mr. Leland, Joyce sent an email to Mr. Leland summarising the situation with her father’s estate (Exhibit P-1). Her father died in 1996. His twelve children were named as beneficiaries, with his assets (which included eight quarters of land in the Invermay area of Saskatchewan, a home in Canora and farm machinery) to be divided equally amongst them.

His son and Joyce’s brother, Joseph, was named as the executor. [ 10 ] No copies of the will, or other documents related to it, or related to any of the court actions brought respecting this estate, were filed by any party at this trial. Mr. Leland, in his evidence, said Joyce’s mother was not named as a beneficiary in the will, but her consent was required for the sale of any of the quarters of land. [ 11 ] According to Joyce, Joseph rented the estate farmland to her youngest brother Nick, who, as a result, moved back to the farm to run the family farming operation.

Joyce said this was done without the approval of the other beneficiaries, and that Nick purchased the estate farm machinery from Joseph for an undisclosed amount. She said Nick continued to live at the house on the homestead for twenty years rent-free, and that he rented the estate farmland from Joseph for an undisclosed amount, and farmed this land with Joseph’s

help. [ 12 ] Joyce said that ten of the beneficiaries (Joyce and nine others of her siblings excluding Joseph and Nick) and her mother had, over the twenty years, demanded of Joseph that he provide financial information and documentation about his administration of the estate. Other than providing some preliminary and general information, he had refused. Then, just prior to Joyce contacting Mr. Leland, the family celebrated their mother’s 90 th birthday in Invermay. All the siblings attended, and questioned Joseph about the estate.

She said Joseph was uncomfortable answering these questions, and towards the end of the evening asked them to leave. Joyce said, at this point, her mother told her she no longer trusted Joseph. Amongst other concerns, her mother was not happy with Joseph’s private sale of the house in Canora. [ 13 ] Joyce further said in her email to Mr.

Leland that, taken together, these events led her and her nine siblings to decide to seek legal representation to take steps to protect their interests as beneficiaries of the estate and to “pursue some action”. [ 14 ] Joyce’s brother Eugene Kowalyshyn hired a lawyer from Kelowna to write a letter to Joseph, demanding financial information about the estate.

Nothing came of that, but the B.C. lawyer suggested that a Saskatchewan lawyer would be required to bring a court application in Saskatchewan, where the assets and the executor were located. [ 15 ] Joyce said that she was selected as the spokesperson for the ten beneficiaries and she began to look for a lawyer in the Yorkton area. She spoke, first, to Wayne Rusnak Q.C., who said he charged $400.00 an hour, and would require a $4,000.00 retainer. She was then given the name of Mr. Leland, another senior member of the Yorkton bar. [ 16 ] That chain of events led to the telephone conversation between Joyce and Mr.

Leland on September 14, 2016, when I am satisfied Mr. Leland was retained by Joyce. III. SHOULD WALTER BE A DEFENDANT TO THIS ACTION? [ 17 ] At the start of the trial, Joyce, speaking for the defendants, objected to Walter remaining as a defendant to this action. I said this issue would be determined once all the evidence and argument had been presented. [ 18 ] Mr. Leland testified that the initial plan was for Eugene Kowalyshyn to be the applicant to have Joseph removed as the executor. But because Eugene lived in British Columbia, Mr.

Leland eventually suggested to Joyce that Walter, a Saskatchewan resident, be the applicant. Walter agreed, and cooperated with Mr. Leland by swearing an affidavit. Walter also attended court in Yorkton on behalf of the family on the three occasions when the application was heard. After being served with the Notice of Application, Joseph retained Mr. Randy Kachur, Q.C., and opposed the application. [ 19 ] In Joyce’s cross-examination of Mr. Leland, he was asked whether Walter ever gave Mr. Leland written instructions or otherwise directed him on what actions were to be taken in this court application. Mr.

Leland responded: “I doubt it”. [ 20 ] Walter testified, and I accept from him that: (1) he was not involved in the initial telephone conversation between Joyce and Mr. Leland, and did not otherwise hire Mr. Leland; (2) he did not ask to be the applicant in the court application, but agreed to be when asked by Mr. Leland; (3) his only involvement with Mr. Leland was to swear an affidavit the lawyer prepared and to attend the court chamber hearings on behalf of the family; (4) he never instructed Mr.

Leland regarding the court application; and (5) he did not agree to pay, or offer to pay, the lawyer’s account. [ 21 ] Walter said he was surprised to receive Mr. Leland’s account, by email on October 11, 2017. That email was copied to Joyce and to Sandi Kowalyshyn (the wife of Joyce’s brother Eugene Kowalyshyn). The account (Exhibit P-12) was made out in Walter’s name and had his street address in Regina set out below his name. In Walter’s words: “I didn’t think it was mine”. [ 22 ] The onus is on the plaintiff to prove that Walter was a party to a legal services agreement with Mr. Leland.

Despite no argument being presented by the plaintiff on this point at the conclusion of the trial, I gather from his evidence that Mr. Leland took the position that because Walter was the applicant in the chambers application, he was, as well, his client. While that is hypothetically possible, I am not satisfied that it was the case here. Taken together, Mr. Leland’s admission and Walter’s evidence (set out above) satisfy me that Walter did not agree to hire, pay or provide instructions to Mr.

Leland, nor did Walter take any action that would make him legally liable for this account. [ 23 ] I cannot leave this issue without dealing with one other issue raised at the trial. In argument at the end of the trial, despite her statement at the start of the trial on behalf of the defendants that Walter should not have been named as, or remain as, a defendant to this action, Joyce argued that all ten of the aggrieved sibling beneficiaries should have been named as defendants in this action, as Mr.

Leland was hired on behalf of herself and her nine siblings. [ 24 ] These two positions are in direct contradiction. While I appreciate that all ten siblings were interested in the application Joyce hired Mr. Leland to bring – indeed, Mr.

Leland said he understood that all ten siblings wanted something done and would contribute to the cost of the proceeding, and in December 2016 said by email (Exhibit P-5) that “the rest of you are our clients who are responsible for our accounts” – there was not in my view satisfactory evidence, especially considering my findings (above) regarding Walter’s status as a defendant, to show that the other siblings should have been added as defendants.

Whether Joyce really intended to suggest that it would have been appropriate for the plaintiff to have named her other eight siblings – the full names of which were not provided to me but whose email addresses appear on Exhibit D-3 – as defendants, and put all of these siblings through the effort and expense and potential liability of defending this action, is questionable.

I say that considering her explanation that one or more of her siblings were struggling financially, which by implication would make it difficult to contribute to the cost of and otherwise participate in this application. [ 25 ] All that considered, there was no suggestion that the plaintiff sought at any point to have any further defendants added to this action, nor was there any suggestion that the defendants applied, prior to the trial or at the case management conference, to add any of

their siblings as third parties to the action. If Joyce wants to independently pursue compensation from any of her siblings for any amounts awarded in this action, based on any agreement between herself and her siblings, she can do so. However, my role in this action is to determine what claim, if any, has been established against the two named defendants. [ 26 ] For the reasons set out above, I am not satisfied that the plaintiff has met the onus of showing that it has an enforceable claim for legal services against Walter, and the action against him is dismissed. IV.

WAS THE AGREEMENT FOR LEGAL SERVICES BETWEEN JOYCE AND MR. LELAND A FIXED FEE AGREEMENT OR A FEE FOR SERVICE AGREEMENT? [ 27 ] Mr. Leland testified that, in his initial conversation with Joyce on September 14, 2016, he told her his hourly rate was $400.00, and that an estimated amount for a chambers application to remove Joseph as executor would be $2,500.00. He agreed to work without a retainer. At the trial, the plaintiff submitted that what Mr. Leland gave was, in effect, an estimate of an uncomplicated and single chambers application, which of course did not occur.

The plaintiff submits the hourly rate provided to Joyce shows the basis upon which legal services were to be provided and billed, as the application progressed, on a fee for service basis. [ 28 ] Joyce testified that the day after she spoke to Mr. Rusnak, she spoke to Mr. Leland. She claimed he said he would make the court application to have Joseph removed as executor for a total cost of $3,500.00, which would be paid at completion of the application, and which would be paid from the estate.

She filed her notes made at some point after these discussions, which were consistent with her testimony. (Exhibit D-1). [ 29 ] From these two opposite versions of the agreement, it is necessary to look at the email correspondence between the parties after their initial conversation. [ 30 ] Mr. Leland sent an email to Joyce on December 8, 2016 (Exhibit P-3), in which he asked for further information from her in making the application.

He, as well, said: Although it is difficult to determine what our fees will end up being, and even though we would expect the cost of the application to be paid by the estate or Joseph, there is no guarantee of same, and we therefore request that you gather together for us a $2,500 retainer at this time. [ 31 ] That was followed by a quick response by Joyce to Mr.

Leland (Exhibit P-4) where she expressed surprise that a retainer was now being required, and further said: You further suggested that the process of making an application to the courts to have someone removed as executor was fairly simple and you deemed the total costs to be a couple of thousand dollars. Further to this, you indicated that your costs would come from Joseph and/or the estate. [ 32 ] Mr. Leland responded the next day, at a time when it appeared that Eugene Kowalyshyn was to be the applicant (Exhibit P-5): I am sorry to have upset you with my previous email.

I had told you that we did not require a retainer to start working for you and that the Court would probably order costs against either the estate or Joseph, but those costs are awarded to the applicant (in this case Eugene) and the rest of you are our clients who are responsible for our account. The total cost is dependant on the time required, and we can not be sure that the matter will be concluded with one court appearance, as the judge may well require additional information, depending on what we present initially. [ 33 ] On the same day there was a further exchange of emails (Exhibit P-6) where Mr.

Leland agreed to work without a retainer, “as long as each of you agree to pay our account(

s) forthwith upon being rendered” and Joyce responded: “We agree to that arrangement”. [ 34 ] Then, after the first date this application was heard in Queen’s Bench chambers, Joyce sent an email to Mr. Leland on March 13, 2017 (Exhibit P-10) in which she: (1) sought an explanation of the outcome of the application; (2) expressed her disappointment: that it appeared there were conflicting affidavits before the chambers judge, that Mr. Leland had not obtained an affidavit from her mother as had Mr. Kachur, and that Mr.

Leland had not watched a video discussion between her sister and her mother at her mother’s 90 th birthday party; and (3) asked her whether legal fees had been discussed before the chambers judge. Mr. Leland responded with an email which said (in part): You are correct that I did not watch the video, as Michelle (Brassard) did and she and I discussed its impact, and I did not want you to incur additional costs that were not necessary.

If no agreement can be reached with Joseph, (which clearly is what the judge wishes to see), this matter will have to be set for a formal hearing with the calling of viva voce evidence and the costs will rise significantly. I am not sure what your question is respecting legal fees, but I did not discuss them any further with Walter or (your brother) Mike. If your question is whether legal fees were discussed with the judge, they were not, and costs are only addressed at the time of adjudication. [ 35 ] After considering the evidence given by Mr.

Leland and Joyce at the trial, and the correspondence noted above, I am satisfied that Mr. Leland gave an estimate of what the legal fees for an application like this would be. I, as well, accept Mr. Leland’s evidence that he told Joyce that his hourly rate was $400.00 per hour, which I note was the same hourly rate that Mr. Rusnak, another senior

member of the Yorkton bar, gave to Joyce when they spoke by telephone. [ 36 ] While Mr. Leland said he estimated to Joyce that the normal cost of such an application would be $2,500.00, and while Joyce said the number he quoted was $3,500.00, when I consider that on December 8, 2016 (Exhibit P-4) Joyce told Mr. Leland by email that he had “deemed the total costs to be a couple of thousand dollars”, I accept Mr. Leland’s evidence that the number he provided was $2,500.00. Further, as supported by the subsequent email communications (which are summarised below) between Mr. Leland and Joyce, I do not accept that Mr.

Leland either agreed or guaranteed that this amount would be the maximum charged for the application or that Joyce’s legal fees would be paid by Joseph or from the funds in the estate. [ 37 ] Regarding whether the agreement was for a fixed maximum sum or a fee for service based on the hours of legal services provided, these emails (set out above) in my view reflect an intention to enter into a variable fee, and not a fixed fee, agreement. In particular:

(1) On December 8, 2016 (Exhibit P-3) Mr. Leland told Joyce that it “is difficult to determine what our fees will end up being”;

(2) On the next day, Mr. Leland told Joyce that “the total cost is dependant on the time required, and we can not be sure that the matter will be concluded with one court appearance” to which, after he agreed to work without a retainer and asked that his accounts be paid upon receipt, he received a response from Joyce that she agreed to that arrangement (Exhibit P-6); and

(3) On March 13, 2017 (Exhibit P-10) Mr. Leland reported back on the first court appearance and said if “no agreement can be reached with Joseph, (which clearly is what the judge wishes to see), this matter will have to be set for a formal hearing with the calling of viva voce evidence and the costs will rise significantly”. [ 38 ] Regarding whether the agreement contained a provision that the legal costs be paid either by Joseph or the estate, despite Mr. Leland’s expectation that this would likely occur, I don’t accept that he guaranteed or otherwise agreed to this. That is because of what I infer from the subsequent emails between Mr. Leland and Joyce. In particular:

(1) On December 8, 2016 (Exhibit P-3) Mr. Leland said “though we would expect the cost of the application to be paid by the estate or Joseph, there is no guarantee of same”;

(2) On the next day (Exhibit P-5), in explaining what would normally happen at a court application like this, Mr. Leland said: “the Court would probably order costs against either the estate or Joseph, but those costs are awarded to the applicant (in this case Eugene) and the rest of you are our clients who are responsible for our account”; and

(3) On March 13, 2017 (Exhibit P-10), in explaining how costs are usually assessed and ordered by the court on such an estate application, Mr. Leland said “costs are only addressed at the time of adjudication”, which I take to mean upon conclusion of the application. [ 39 ] Taken together, for the reasons stated, I prefer the evidence given by Mr. Leland to that given by Joyce on the nature of this agreement, and I find that they agreed to have legal services paid for on a fee for service and not a fixed fee. I am, as well, satisfied that Joyce was aware that Mrs.

McCrea would be assisting in the provision of these legal services, as she contacted Mrs. McCrea by email (in early December, 2016, Exhibit D-6) and, as well, testified to attending at least one meeting at the plaintiff’s offices in which Mrs. McCrea was present with Mr. Leland. [ 40 ] All that said, the pivotal question remains: what is a fair and reasonable amount for the legal services that were provided under this agreement? V.

WHAT IS A FAIR AND REASONABLE LEGAL FEE IN THIS CASE? [ 41 ] The account Walter received by email on October 11, 2017 was for a total of $18,338.64, made up of: (1) legal fees of $15,547.00 (32.80 hours for Mr. Leland and 16.18 hours for Mrs. McCrea); (2) disbursements of $1,037.11 (court filing and issuance fees, process server fees, photocopying, facsimile and other office disbursements);

(3) PST of $932.82; and

(4) GST of $821.71. [ 42 ] The account described the legal services provided as: • email correspondence with clients; • all office attendances and conference calls with clients; all correspondence with clients, Randy Kachur, Curtis Fleury and Don Klassen, counsel for Agri-Food Canada; • reviewing all documentation; preparing Originating Notice of Application, 2 nd Notice of Application, affidavits of Walter Kowalyshyn, brief and orders; • preparing Affidavit of Documents; • receipt and review of Joseph Kowalyshyn’s brief, Joseph Kowalyshyn’s Affidavit of Documents, and Nick Kowalyshyn’s affidavit; • receipt and review of fiats;

• serving and filing all documentation with Queen’s Bench courthouse; • all court appearances; • all ancillary services with respect to the above; and • reporting and enclosing herein. [ 43 ] The subsequent communication between the parties is not easy to piece together, but it can be deciphered from the back and forth emails recorded in Exhibit P-2. On February 20, 2018, Mr. Leland asked Walter for partial payment of the account, as Mr. Leland had learned that a separate action for damages against Joseph, brought by Walter and Joyce and other of their siblings, was being litigated through another lawyer.

Joyce responded to Mr. Leland two days later, giving him an update on the damages action, and reminding him that he had not yet provided her with a detailed bill. Then on June 1, 2018, Walter emailed Mr. Leland, with a further update on the separate damages action, but, as well, asked again for an itemized account. He (Walter) was obviously frustrated. [ 44 ] On June 4, 2018, Mr. Leland emailed the itemized account to Walter. As contained in Exhibit P-2, it is nine pages in length.

The itemized account lists the lawyer involved, the time spent on specific abbreviated tasks (with no explanation of what each abbreviation represents explained in the account, or given to me at the trial), the hourly rate for the lawyer and the total charged for each task. At the trial, Walter expressed his frustration that the itemized account was cut off on the left-hand side of the page and, as a result, it was difficult to read the exact date services were provided.

I view this as a valid concern, as what was filed by the plaintiff at the trial was, as well, to some extent cut off on the left-hand side. [ 45 ] Other than the itemized account, only a general overview of the legal services provided was given by Mr. Leland and Mrs. McCrea at the trial, and none of the pleadings or documentation from the chambers court application was filed by the plaintiff.

That noted, the challenge for me is to determine what is a fair and reasonable amount for this account as a whole, “and not on an item-by-item basis” (as set out by the Saskatchewan Court of Appeal in Phillips Legal Professional Corporation v Vo , 2017 SKCA 58 at para 146 [ Vo ]).

In Key , Judge Demong explained this passage from Vo , in a way that I find is directly applicable to this case: “Simply put, in the absence of a very specific and informed agreement between the parties, a lawyer’s fee does not become owing simply because the lawyer has meticulously recorded their time and their actual disbursements and then added them up and forwarded it on to their client” (at para 26). [ 46 ] To be clear, there was no specific agreement between Mr.

Leland and Joyce about what specific legal services would be provided on her behalf, over the thirteen-month period between the initial retainer agreement and the first account sent by Mr. Leland. The legal service agreed to was simply to apply to the court to have Joseph removed as executor. [ 47 ] In Vo , the Court of Appeal (at para 49) set out the factors that could be considered in assessing what is a fair and reasonable account from a lawyer: (

a) the time and effort required and spent; (

b) the difficulty of the matter and the importance of the matter to the client; (

c) whether special skill or service has been required and provided; (

d) the results obtained; (

e) fees authorized by statute or regulation; (

f) special circumstances, such as the postponement of payment, uncertainty of reward, or urgency; (

g) the likelihood, if made known to the client, that acceptance of the retainer will result in the lawyer's inability to accept other employment; (

h) any relevant agreement between the lawyer and the client; (

i) the experience and ability of the lawyer;

(

j) any estimate or range of fees given by the lawyer; and (

k) the client's prior consent to the fee. [ 48 ] A few of these factors – e, f and g - are not applicable to this case. That is because there was no evidence or argument by the plaintiff that the legal fees charged were regulated by a statute or regulation, nor – despite Mr. Leland’s comment by email at one point to Joyce that he had other clients – was there a suggestion that being hired by Joyce would prevent Mr.

Leland from doing other legal work or that any special circumstance existed that would require a different or increased legal fee to Joyce. [ 49 ] While each case is unique, and while there is no mathematical formula to apply in determining what is a fair and reasonable amount for legal services, I will, before reaching any conclusion on what is reasonable, consider the other factors from Vo under three headings: (1) the amount of legal work done by Mr. Leland in response to what he was hired to do;

(2) Joyce’s reasonable expectations of Mr. Leland and of the size of the account based on her agreement with him; and (3) the other associated costs that should reasonably be included in this account. The amount of legal work done by Mr. Leland in response to what he was hired to preform [ 50 ] The itemized account in Exhibit P-2 contained over 150 entries, stated in reverse chronological order.

As I noted above, (1) the account is presented in an abbreviated fashion with no key to guide a reader or a client on exactly what service is being described; and (2) there was a paucity of testimony or other evidence presented by the plaintiff at this trial about what services were specifically provided. That said, I again observe that the onus remains with the plaintiff to prove what is a fair and reasonable amount for the legal services provided. [ 51 ] At the trial Mr. Leland testified that he appeared in Queen’s Bench chambers three times on this application.

No dates of court appearances were stated in the formal account sent to Walter on October 11, 2017, or by testimony at the trial. While not easy to decipher, it appears from the itemized account that these chambers court appearances were on March 13, 2017, April 24, 2017 and September 5, 2017. [ 52 ] Further in his evidence, Mr. Leland said that after his initial discussions with Joyce (as outlined above), and after it was determined that the application would proceed, he worked with Mrs. McCrea who was assisting him. He said Joyce knew that Mrs.

McCrea would be working with and assisting him on the file, given that she, as an articling student, worked at one half his hourly rate. He said Mrs. McCrea put quite a bit of work into the research and preparation of materials for the chambers application and said, “we worked together”. [ 53 ] Mr. Leland said, near the start of spring of 2017, that the materials had been prepared and were served on Joseph. It took awhile for a response, and they then learned that Mr. Kachur was representing Joseph. Mr. Kachur filed a response for Joseph to this application. Mr.

Leland said that, at the first chambers appearance, there was a conflict in the affidavits filed, and, as a result, the judge adjourned the application in the hope that all the parties could agree on who could be coexecutors of the estate. He said that he discussed this with Joyce and Walter, but neither of them wanted to be coexecutors with Joseph. [ 54 ] Mr. Leland said the next chambers appearance was to determine the parameters of the action, including how evidence was to be presented.

He said that, on a subsequent chambers application, he requested that Joseph provide an accounting of the estate financial information and sought to get other information from Joyce’s brother Nick, including information from the Government of Saskatchewan’s Disaster Relief Program and Crop Insurance Program. Mr. Kachur agreed to provide information on behalf of Joseph, but a separate application was required to get the information from the government agencies and from Nick. [ 55 ] Mr. Leland admitted there were two mistakes made in preparing these applications.

These were that: (1) the application to obtain information from Nick did not include Nick’s wife as a party, and, as a result, as they were joint owners of property, this was flawed; and

(2) Mr. Leland forgot to put a time for a reply in the applications for information, and as a result had to apply for another order to be issued containing a date for the filing of the information. [ 56 ] Regarding the conflict in the affidavits at the first chambers hearing, Mr. Leland said that Mr. Kachur had obtained an affidavit from Joyce’s mother, which conflicted a bit with what Joyce said her mother had told her. That conflict was that, in the affidavit filed by Mr.

Kachur, Joyce’s mother said that Joseph was picked by his father to farm after he had asked Walter and another son if they wanted to farm, and they had said no. As a result, it appeared from that affidavit that Joseph was, in effect, his father’s choice to farm. Mr. Leland maintained that, although he did not obtain an affidavit from Joyce’s mother, he did not think that such an affidavit was pivotal as her mother not a beneficiary to the will and, regardless, Joyce’s mother had provided sworn evidence to the court, through an affidavit, that would be difficult to counter. [ 57 ] Mrs. McCrea’s evidence was brief.

She was an articling student at the plaintiff’s law firm at the relevant time. She assisted with Mr. Leland in working on this file and had little recollection of what specifically was said when she met with Mr. Leland and Joyce and some of Joyce’s siblings. She worked on this file from the beginning, drafting materials and doing research.

As disclosed in the detailed account, her hourly rate was $150.00 an hour. [ 58 ] In the brief argument that followed the evidence at this trial, the plaintiff, in effect, submitted that the hourly rate had been agreed to by Joyce and the cost billed in the account – both for hours of legal services and disbursements and taxes – had actually been incurred by the plaintiff, and therefore the account was justified. Mr. Stamatinos, as well in argument, pointed to Mr.

Leland’s evidence, that after one of the chambers appearances in the summer of 2017, Walter spoke to him about the financial statement filed by Joseph in

court, which showed that $20,000.00 had been taken out of the estate account by Joseph to pay his legal fees. Mr. Leland said he told Walter that this amount might be similar to his account. Mr. Stamatinos said this showed that Joyce, through Walter, was aware that the account would be significantly higher than the original estimate. [ 59 ] To be clear about this discussion, however, Walter testified that he was shocked and, in effect, sickened by Mr. Leland’s comment about fees and said nothing in response as he did not know what to say. It should as well be noted that the discussion between Mr.

Leland and Walter at court came almost a year after Joyce hired Mr. Leland, and Mr. Leland had yet to send out any form of account. Joyce’s reasonable expectations of Mr. Leland and of the size of the account based on her agreement with him [ 60 ] At trial, both Joyce and Walter expressed concerns about how the legal services were provided. These were that: 1. Mr. Leland was hired to have Joseph removed as executor of the estate, and this did not happen; 2. The total account rendered was over seven times the amount Mr. Leland originally estimated; 3. A priority from the start was having Mr.

Leland obtain an affidavit from Joyce’s mother setting out her views on the estate, and this did not happen; 4. The original agreement was that Mr. Leland would work without a retainer, and then on December 8, 2016 he sought to obtain a retainer from Joyce (Exhibit P-3); 5. Mistakes were made on this application, including those admitted to by Leland (above). In Joyce’s view, these mistakes added to a delay in the application, and to the legal costs they were being charged, including the cost of correcting these mistakes; and 6.

Most significantly, in my view, no account for legal services of any kind, whether interim or final, was sent out by Mr. Leland until thirteen months after the initial discussion between Mr. Leland and Joyce. Given the antipathy of response which followed the formal account, it is obvious that some earlier account would have, at the least, brought to a head the gap between what Mr. Leland claimed was owing and what Joyce expected to be owing. [ 61 ] Clearly, Joyce’s expectations in hiring Mr. Leland were not met. While no one of her concerns (listed above) is determinative, and while Mr.

Leland was candid in admitting his mistakes on this application and but, as well, did give what I thought was a credible explanation of why he did not get Joyce’s mother’s affidavit, on balance I do not view Joyce’s expectations and concerns as misguided. That is so particularly when I consider that:

(1) Mr. Leland was hired to make an application to remove Joseph as the executor and that did not happen;

(2) Mr. Leland initially agreed to work without a retainer, but then, a few months later, asked for one; and (3) after thirteen months, Joyce learned of an account from Mr. Leland which was many times greater than the estimate he gave her. Analysis of what fair and reasonable legal services are in this case [ 62 ] Taken together, I am satisfied that Joyce’s reasonable expectations about this account, the lack of results obtained, and the size of the account compared to the estimate originally given, justify a significant reduction. Looked at another way, considering these and other factors within the framework from Vo :

(1) Mr. Leland estimated to Joyce that such an application would cost $2,500.00 and sent an account thirteen months later charging $18,338.64;

(2) Given Mr. Leland’s experience, Joyce in my view had a reasonable expectation of success in removing Joseph as executor through this application, which obviously did not occur;

(3) The application was undoubtably more complicated than initially anticipated by Mr. Leland; and

(4) While Joyce agreed to pay for Mr. Leland’s services by his hourly rate, there was no reasonable expectation on her part that the legal account could have reached this level, especially considering no interim bill was sent to her.

[ 63 ] In balancing the relevant factors, set out above, I view a fair and reasonable amount for the legal services provided to be $7,000.00. That is because:

(1) The legal services provided were all, in one way or another, in support of the court application Mr. Leland brought to remove Joseph as executor. He estimated the cost of this application to be $2,500.00, on his belief that only one court appearance at the Court of Queen’s Bench would be required. In fact, the application was more complicated than anticipated, and three court appearances were required. As a result, in the absence of any compelling argument otherwise from the plaintiff, I view as reasonable that there be a starting point of three times the estimated amount for the legal services required, which would be $7,500.00; and

(2) From that initial benchmark, I am satisfied that some discount from it is appropriate, given the lack of results, mistakes made and delay in providing any account to Joyce. I view a reasonable discount, in recognition of these factors, to be $500.00, resulting in legal services of $7,000.00. The other associated costs that should reasonably be included in this account [ 64 ] Although it was not specifically argued by the parties, I infer that the parties to this agreement expected that PST and GST and a reasonable amount for disbursements would be added to the fee for legal services.

While there was no evidence of any discussion about these added taxes or disbursements, I view both as a reasonable expectation of a person hiring a lawyer. [ 65 ] As a matter of provincial and federal law, a lawyer in Saskatchewan is required to charge both the PST (6%) and GST (5%) on legal fees and GST on disbursements. On that point, I note that Judge Kovatch (in NLS Construction Ltd. v Kirkby , 2013 SKPC 5 at para 30 ) found that a contractor did not have to include the GST, which the business was still obligated to charge on its account, in the price quoted for construction work.

Similarly, I am not satisfied that a lawyer such as Mr. Leland had to specifically state that both taxes would be added to the fee for legal services. [ 66 ] Regarding disbursements, I as well accept as a reasonable expectation of a client that some reasonable number and amount of disbursements would be added to the fee for legal services.

By “reasonable” I mean that, while some additional costs are obvious and unavoidable to the lawyer, such as the cost of filing documents at court and of issuing orders, at the same time there has to be a reasonable sense of proportion between the fee charged for legal services and that charged for disbursements. [ 67 ] The list of disbursements on Mr. Leland’s account rendered on October 11, 2017 (Exhibit P-12) contained a list of disbursements, many of which were unavoidable to Mr. Leland, such as the cost of filing documents and issuing orders.

That said, over 80% of the disbursements came largely from process servers, and as well included a courier fee and miscellaneous office expenses. In the absence of other evidence about why the service fees were so high, I view $700.00 as a reasonable amount of disbursements in this case. VI. WHAT ORDER FOR COSTS OF THIS PROCEEDING OR INTEREST ON THIS ACCOUNT IS APPROPRIATE? [ 68 ] The plaintiff’s action sought cost of the proceeding.

Given that no further argument on this point was made by the plaintiff at the trial, but as well considering that no payment whatsoever was made on this account by Joyce, I am satisfied that the plaintiff is entitled to receive from Joyce the costs of commencing this action, $100.00. [ 69 ] At the conclusion of the trial, both Joyce and Walter asked the court to order costs against the plaintiff, for the cost each had encountered to attend the case management conference and trial in Yorkton. Joyce’s expenses, for air and taxi fare for two return trips from Vancouver, totalled $1,101.37.

Walter’s expenses, which were mileage for two return trips from Regina, totalled $391.68. Section 36(2) of The Small Claims Act, 2016 , SS 2016, c S-50.12 gives a judge the power to award costs not otherwise mentioned in s. 36(1) of that Act , which is clearly the case here. [ 70 ] Regarding Walter’s claim for costs, given my finding that he should not have been named as a defendant in the first place and my order that the action against him be dismissed, I view his request as well-founded, and order the plaintiff to pay costs to him in the amount claimed of $391.68.

Regarding Joyce’s claim for costs, when I consider that she decided to hire a lawyer in Yorkton, to bring an application at the Court of Queen’s Bench in Yorkton, and that no payment whatsoever was made on that account, I do not think it is appropriate that she be given her costs to attend court in response to the plaintiff’s action, brought in court in Yorkton, to enforce that agreement. VII.

CONCLUSION [ 71 ] For the reasons stated, the plaintiff will have judgment against Joyce Kowalyshyn for the total amount of $8,297.00 ( legal fees of $7,000.00; disbursements of $700.00; PST of $462.00; GST of $35.00; and the costs of issuing this claim of $100.00). Further, the plaintiff’s action against Walter Kowalyshyn is dismissed and he shall receive costs payable by the plaintiff in the amount of $391.68 . _____________________ R. Green, J