2013 QCCQ 1935, 2013 QCCQ 1935

Joli-Coeur Lacasse, s.e.n.c.r.l. c. De Lima COURT OF QUEBEC 2013 QCCQ 1935 CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-190463-128 DATE: February 27, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JOLI-COEUR LACASSE S.E.N.C.R.L Plaintiff vs.

JOSÉ PEREIRA DE LIMA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Joli-Cœur Lacasse S.E.N.C.R.L., a Montreal law firm, sues its client, Mr Jose Pereira de Lima for outstanding accounts for professional services. The amount initially mentioned in the conclusions of the introductory motion was $ 51,467.36.

Interest in the amount of $ 11,689.76 mentioned in the statement of account (P-1.1) was not included. [ 2 ] At the hearing, the Plaintiff dropped an additional $ 5,164.64 for two invoices relating to its representation in the matter of a fee dispute with the Defendant's former attorney (Videira, Richard, avocats), reducing the total claimed to $ 46,302.72. [ 3 ] This amount is made up of five accounts dated between September 30, 2009 and September 30, 2010 all relating to the matter "Succession de feu Horacio Pereira De Lima". The bills total $ 47,021.81.

The statement of account shows a partial payment applied to the first of these invoices of $ 719.09, hence a balance of $ 46,302.72. [ 4 ] The Defendant's grounds of defence, taken down from an oral statement, read in the minutes of the "Gestion de Temps" as "Les factures ne sont dues.

Mésentente sur le quantum des factures". [ 5 ] At the hearing, Joli-Cœur Lacasse gave an undertaking to seek recovery of an eventual judgment first against the funds they hold in trust for Mr Pereira De Lima pursuant to the settlement agreement reached in the matters they were handling and only to execute against other assets if these amounts should be insufficient, upon final distribution of the funds to the various recipients.

Issues [ 6 ] The Court must decide, for each invoice, whether the amount is properly charged to the defendant as the firm's client, in view of the contract for professional services and the rules formulated in the Code of ethics of advocates. [1] Facts [ 7 ] When Joli-Cœur Lacasse became involved in the early part of 2009, Mr Pereira de Lima was engaged in litigation in connection with the estate of his late brother Horacio Pereira de Lima, involving Michael Pereira de Lima (Horacio Pereira de Lima's son) in two Superior Court files ( 500- 14-025248-055 and 500-17-038436-070) ( the "estate litigation") [ 8 ] In the estate litigation, Mr Pereira de Lima had already been represented by the firm of Videira, Richard, avocats.

A dispute over fees had developed between the estate as well as Mr Pereira de Lima personally, and that firm. This dispute was still unresolved, and the subject matter of a suit in the Court of Quebec (500-22-154659-091) at the time the parties to the estate litigation met on September 28, 2009 in the presence of Mr Justice William Freiberg at a Settlement Conference. [2] It was one of the minor matters dealt with the estate litigation being of chief concern. [ 9 ] Mr Pereira de Lima was represented in this conference by Maître Michel Richer of Joli-Cœur Lacasse.

The meeting lasted the day and resulted, apparently in an agreement in principle, but the parties finalised the written settlement agreement much later, on January 25, 2010, (P-9) the last signature on the document being dated January 26th. [ 10 ] In the period intervening between the settlement conference, where an agreement in principle was made, and the signing of the agreement,

the attorneys and parties continued both their negotiation for the finalisation of the text of the settlement agreement, and the fulfillment of certain obligations of the agreement, through the preparation of accounts to be rendered by Mr Pereira de Lima as executor of the estate, preparations for transfers of funds etc. [ 11 ] According to testimony, Joli-Cœur Lacasse 's last bill dated from May 2009 when the transaction agreement was finally signed. [ 12 ] The final text of the transaction agreement, dated January 25, 2010 includes an agreement about this work in progress, set out in paragraph 9: 9.

José agrees that he shall personally pay for all work in process and all invoices generated by Jolicoeur, Lacasse since the issuance of Jolicoeur Lacasse's last invoice, which was on May 19, 2009.

Jolicoeur Lacasse has disclosed and José acknowledges that as of September 25, 2009 the work in process generated by Jolicoeur Lacasse totals $ 23, 870.44 (inclusive of all applicable taxes and disbursements) and that this sum in addition to all future sums owing to Jolicoeur Lacasse will be paid for by José personally who hereby authorizes Jolicoeur Lacasse to withdraw all of these sums from the Funds. [ 13 ] The first two accounts in issue in the present case, no. 23535 for $ 9,829.35 dated September 30, 2009 (covering Sept. 3 to 25 2009) (P- 1.2) and no. 240221 for $ 14,759.68 dated January 22, 2010 (covering Aug. 31 2009 to Jan. 21, 2010 (P-1.3) total $ 24,589.03. [ 14 ] It would appear that the bill bearing the date September 30, 2009 had not yet been issued on January 25, 2010 when the transaction agreement was finalised and signed by Mr Pereira De Lima. [ 15 ] Computations are further complicated by the fact that the two bills overlap September 25 as the dates above indicate. [ 16 ] As of September 25 there was approximately $ 10,000 billable, mostly Maitre Richer's time in preparing and attending the settlement conference. [ 17 ] Joli-Cœur Lacasse and Mr Pereira De Lima were having a discussion on January 25, 2010 about the work in progress.

They were looking at the then current situation, not the situation back in September.

There must be a clerical error in paragraph 9 of the transaction agreement: January 25, 2010 was probably intended. [ 18 ] The amount of billable fees as of that date are determined by the transaction agreement, though this amount is not accurate, if compared with the bills actually issued. [ 19 ] As early as September 29, 2009, Mr Pereira De Lima had begun voicing his discontent with the settlement agreement, as appears from an excerpt form a time entry on September 29, 2009 reproduced in Joli-Cœur Lacasse's invoice for that period (P-1.3): Réception et lecture d'un courriel de M.

José Pereira De Lima nous avisant qu'il avait decidé de ne pas donner suite à l'entente négociée lors de la séance de règlement à l'amiable du 18 septembre 2009 devant l'Honorable Juge William Fraiberg; discussion interne avec Me Lozeau à ce sujet; prendre connaissance d'un courriel de M. Jose Pereira De Lima adressé à Me Lozeau; conservation téléphonique avec Me Faguy à ce sujet. [ 20 ] Mr Pereira De Lima always believed hi was a beneficiary under the will, and not a mere trustee charged with the administration of the estate and the payment of the bequests.

The compromise made in the settlement gave him only a small portion of the estate, after recognition of his right to the reimbursement of a substantial loan, his nephew Michael being recognised as the beneficiary of the trust. [ 21 ] He ended up signing the agreement however.

His wife, Mrs Maria de Lima offered some very bitter testimony about her discontent with the settlement meeting itself, the outcome of it, and the way they were dealt with by Joli-Cœur Lacasse who counselled them, very strongly to sign a judicial procuration for a firm in Lisbon to complete formalities associated with the transfer of funds. [ 22 ] The Court did not permit testimony about what was said and done at the settlement conference, in observance of the confidentiality referred to in the Code of Civil Procedure at

article 15.21. [ 23 ] The Transaction agreement (P-9) is essentially a carving-up of the estate patrimony between the nephew and the Defendant. It contains a provision for Mr Pereira De Lima to be held harmless from a potentially detrimental outcome from the litigation by the former attorneys, and the necessity for him to account, as executor, for $ 23,000 spent from the estate assets, ostensibly for legitimate estate expenses, failing which it would be deducted from the sums payable to him. [ 24 ] There were other miscellaneous adjustments, such that Mr.

Pereira De Lima would, if he could not account for the $ 23,000, receive approximately $ 96,000 less what he would pay Joli-Cœur Lacasse.

That amount would be further reduced by any taxes imposed by Portugal, to be paid on a pro-rata basis with his nephew Michael Pereira De Lima. [ 25 ] The transfer of approximately 230,000 Euros from a bank an account in Portugal, to Joli-Cœur Lacasse's trust account, for distribution pursuant to the transaction was anticipated to be a simple matter, facilitated by an order of the Superior Court in partial homologation of the transaction agreement (P-10). [ 26 ] The lawyers did not anticipate that the Portuguese bank, Bank BT Totta, would not recognise the enforceability of the Quebec Superior Court order.

They acted under the assumption that, by informing the local representative of that bank, also known as the Bank Totta, of the settlement and the judicial order, it would be a purely mechanical matter. [ 27 ] Almost the entire bill of June 21, 2010 (Feb 18 to June 18) no. 245840 in the amount of $ 8,371.99 consists of Maitre Richer trying to figure out how to deal with the problem. [ 28 ] Part of the problem is characterised by opposing counsel as a lack of cooperation by Mr Pereira De Lima. [ 29 ] The collaborative efforts of counsel on both sides led to the decision to appoint a lawyer in Lisbon to deal with the matter within the local legal system. [ 30 ] A series of judicial proceedings took place at the initiative of Michael Pereira De Lima.

The first, dated June 25, 2010, entitled "Motion to force an executor to act" (P-11) gave rise to a judgment of the Honorable Marie-France Courville, J.C.S. on June 29th (P-12) ordering Mr Pereira De Lima to appoint a certain Lisbon firm to act with full powers under a "procuration juridique" and to cooperate with the two firms, that retained

by Michael Pereira De Lima and Joli-Cœur Lacasse. [ 31 ] When Mr Pereira De Lima failed to comply with the order, counsel for his opponent followed up with the second proceeding, on August 27th a motion to remove him as executor, and other accessory conclusions. [ 32 ] That led to a judgment of September 1, 2010 of the Honorable Benoît Emery J.C.S. replacing Mr Pereira De Lima with a chartered accountant uninterested in the estate. [ 33 ] The funds were eventually transferred to the trust account of Joli-Cœur Lacasse.

As of the hearing of the present matter, they had not yet been distributed because of a further complication: the Portuguese bank had been asked for an accounting of its administration of the funds, with all details of charges imposed. For the time being the new executor has not permitted the disbursement to take place. [ 34 ] An email of December 2010 from Mr Pereira De Lima's son signalled the termination of Joli-Cœur Lacasse's mandate. [ 35 ] The bill relating to the final period, dated September 30, 2010, no. 249189 from June 21 to September 27 is in the amount of $ 8,327.90.

It consists of some 28.25 billable hours, mostly of Maitre Richer. This includes a total of 10.5 billable hours at court in relation to the two motions. At this point, the client was no longer accepting what was being done, ostensibly, on his behalf. He travelled at one point to Portugal for vacations and intended to consult a lawyer there about the will and the transaction agreement. (Reasons for judgement of Courville J. P-12 paragr.7) [ 36 ] In the time spent in this final account, Maitre Richer is in a completely passive and reactive mode.

There is nothing that he can accomplish for the client; he has no instructions, at least none that he can carry out. His presence at Court is, at best, a courtesy to the Court and to his opposing counsel. His communications with opposing counsel and with the client essentially relay the latest information.

There is no longer a meaningful lawyer-client relationship. [ 37 ] Joli-Cœur Lacasse's continued presence as attorney of record can be explained, at least in part, because it was to act as the conduit for the transfer of the funds under the settlement agreement, a role it had accepted for the benefit of all involved, including itself. It is through the receipt of the transfer and the administration of the funds that it was to receive payment of its substantial accounts. In this respect, Joli-Cœur Lacasse is a party to the transaction agreement and it has a vital interest in the agreement being carried out.

It is acting on its on behalf as well. [ 38 ] This may explain, at least in part, why it did not move to cease representing when its client no longer accepted its advice and refused to instruct as counselled. [ 39 ] In fairness to Maitre Richer, he may have continued out of a sense of loyalty to his client, who, by failing to cooperate, was risking an action in damages and, when he failed to comply with a judicial order, contempt of Court.

His presence in the court file in the two motions may have shielded Mr Pereira De Lima from the worst possible effects of his conduct while at the same time preserving the reputation of Joli-Cœur Lacasse in the Superior Court. Analysis [ 40 ]

Article 127 of the Act Respecting the Barreau du Québec [3] creates a certain presumption of the validity of a lawyer's account: 127.

The oath of the advocate shall make proof as to his services having been required and as to the nature, duration and value thereof, but such oath may be contradicted in the same way as any other testimony. [ 41 ] The jurisprudence has been consistent in characterising this provision as creating a rebuttable presumption. [ 42 ] The Honorable Rita Bédard J.S.C. writes: “[l]'article 127 permet donc à l'avocat qui réclame ses honoraires d'établir ‘prima facie le montant des honoraires et des déboursés.’” [4] The Honorable Claude Dallaire J.S.C. provided a more thorough description of the article’s broad purpose in a recent decision: 42 En ce qui a trait à la preuve des dommages, la jurisprudence accepte généralement qu'elle soit

sommaire et elle n'exige pas une précision chirurgicale. 43 Ainsi, le “gros bon sens,” un simple estimé des honoraires fait à la suite de l'analyse du dossier judiciaire et le serment de l'avocat sous l'article 127 de la

Loi sur le Barreau ont été jugés convenables pour remplir le fardeau requis à ce sujet . 44 La jurisprudence antérieure à l'adoption des dispositions en cause avait déjà reconnu que le serment de l'avocat fourni sous l'article 127 de la Loi sur le Barreau, à défaut d'être contredit, pouvait constituer une preuve valable des honoraires réclamés à

titre de dommages . Des feuilles de temps ou des comptes d'honoraires détaillés, combinés à ce serment d'office non contredit, ont aussi été jugés satisfaisants . […] 46 Ainsi, si des comptes d'honoraires d'avocats ou des feuilles de temps qui révèlent des travaux en cours détaillés sont déposés en preuve et que l'avocat témoigne sur son serment d'office relativement à la réquisition, la nature, la durée et la valeur des services rendus, tel que le permet l'article 127de la

Loi sur le Barreau, cela est suffisant pour prouver les dommages réclamés, à défaut par la

partie qui conteste les honoraires de produire une preuve susceptible de contredire celle présentée. [5] [ 43 ] In addition to allowing an advocate to establish a rebuttable presumption vis-à-vis the content of his fees,

article 127 has also been understood to allow for a departure from the general principles governing the admissibility of oral testimony. Simply put, an advocate’s oath is by itself sufficient to establish the nature of his or her mandate: Quelles sont la nature et l'étendue de cette disposition ? Voici ce qu'André Nadeau et Léo Ducharme, Traité de droit civil du Québec, t.9, Montréal, 1965, aux pages 346 et 347, disent à propos de l'article 127: 451. La preuve de la réquisition des services dans les professions libérales. - Quelques autres exceptions au principe de la prohibition à certaines lois spéciales.

Ainsi, une disposition que l'on trouve rédigée de façon à peu près identique dans les diverses lois professionnelles porte que ces hommes de profession sont crus à leur serment quant à la réquisition, à la nature et à la durée des services rendus par eux. Ces lois diverses ajoutent, bien entendu, que ce serment peut être contredit comme tout autre témoignage.

Il ne faut voir dans ces lois que la simple admissibilité de la preuve orale de tous détails relatifs aux services professionnels rendus. Avant ces lois les décisions portaient qu'il fallait un écrit pour établir, par exemple, le mandat de l'avocat, alors qu'aujourd'hui elles admettent que l'avocat peut prouver par son propre serment la réquisition de ses services.” J'accepte cette interprétation. Pour moi, les mots clés sont "ce serment peut être contredit comme tout autre témoignage". Le juge qui voit et entend les témoins est dans une position privilégiée pour apprécier la valeur de leur témoignage.

L'avocat peut présenter une preuve orale de la réquisition de ses services et il est cru à son serment. Cependant, rien n'empêche la

partie adverse de présenter une preuve dans le sens contraire. [6] [ 44 ] In practice, in cases such as this one,

article 127 permits an advocate to make fairly

summary proof of his fee accounts, subject to rebutting contrary evidence adduced by his client. [ 45 ] However, the rules of ethics governing the rendering of accounts are of more substance and therefore of greater interest to those deciding fee disputes. The difficulty lawyers and clients often face in this type of dispute is that of the conversion of hours of billable time into billed time. The Court heard testimony from Me Lozeau that the client had been clearly told that he would be billed on the basis of time. It is clear that the mere calculation is not sufficient: [ 46 ] The Honorable Allan R.

Hilton, then of the Superior Court, expressed the principle very clearly: [65] Billing on an hourly basis, however, should not be effected as a simple mathematical process whereby the number of hours is multiplied by the hourly rate to arrive at the amount of the fee. The practice of law in a profession that is surely not the equivalent of a merchant selling a commodity for a priced based on its number and weight. [7] [ 47 ] The code of ethics lists the criteria that an advocate must take into account and states the duty of information and disclosure: §8. Determination and payment of fees 3.08.01.

The advocate must charge and accept fair and reasonable fees. R.R.Q., 1981, c. B-1, r. 1, s. 3.08.01 . 3.08.02. The fees are fair and reasonable if they are warranted by the circumstances and correspond to the professional services rendered. In determining his fees, the advocate must in particular take the following factors into account: (

a) experience; (

b) the time devoted to the matter; (

c) the difficulty of the question involved; (

d) the importance of the matter; (

e) the responsibility assumed; (

f) the performance of unusual professional services or professional services requiring exceptional competence or celerity; (

g) the result obtained; (

h) the judicial and extrajudicial fees fixed in the tariffs. R.R.Q., 1981, c. B-1, r. 1, s. 3.08.02 ; O.C. 351-2004, s. 55. 3.08.03. The advocate must avoid all methods and attitudes likely to give to his profession a profit-seeking or commercial character. R.R.Q., 1981, c. B-1, r. 1, s. 3.08.03 . 3.08.04. An advocate shall, before agreeing with the client to provide professional services, ensure that the latter has all useful information regarding the nature and financial terms of the services and obtain his consent thereto, except where he may reasonably assume that the client is already informed thereof.

R.R.Q., 1981, c. B-1, r. 1, s. 3.08.04 ; O.C. 351-2004, s. 56. 3.08.04.01. An advocate who practises within a partnership or joint-stock company shall ensure that the fees and costs of professional services rendered by advocates are always indicated separately on every invoice or statement of fees that the partnership or joint-stock company sends the client, except where a lump-sum payment has been agreed upon in writing with the client. However, in the latter case, the statement or invoice shall describe the professional services rendered by the advocate. O.C. 351-2004, s. 56. 3.08.05.

An advocate shall provide the client with all explanations necessary to the understanding of the invoice or statement of fees and the terms and conditions of payment, except where a written agreement has been entered into with the client to receive a lump-sum payment or where he may reasonably assume that the client is already informed thereof. R.R.Q., 1981, c.

B-1, r. 1, s. 3.08.05 ; O.C. 351-2004, s. 57. [ 48 ] In an ideal situation, when these principles are followed, a lawyer has given his client accurate estimates of the fees to be charged and has billed frequently with good reporting of the work accomplished and the efforts expended, the client appreciates and understands the services and the favourable result achieved due to the lawyer's skills and efforts and gladly pays the account. [ 49 ] In fee disputes, it is necessary to determine whether the lawyer has adequately fulfilled his deontological duty to properly inform the client of the nature and projected costs of the services to be rendered as mentioned at 3.08.04:

[ 50 ] When this duty is not adequately discharged, the "sanction imposed" is the reduction of the account, if, after scrutiny, the court seized of the matter is of the opinion that a fair and reasonable fee, in light of the applicable criteria, would be a lesser amount. [ 51 ] The case that is most often cited in this regard [8] sums it up nicely Ces dispositions [

article 3.08.04 ] sont le reflet d'une règle de bon sens. Le client n'a t-il pas intérêt à connaître de façon assez concrète ce à quoi il doit s'engager ? Cette connaissance lui permettra de prendre une décision éclairée. Parfois, il arrivera à la conclusion que le jeu n'en vaut pas la chandelle. Parfois, il croira bon de consulter quelqu'un d'autre. De toute façon, il est raisonnable qu'il soit placé dans une position de décider en connaissance de cause. Ainsi, il y aura pas [sic] ou peu de surprises plus tard. Ces ont pour effet d'imposer à l'avocat une obligation de renseignement.

Dans le présent cas, le juge constate en définitive qu'il y a eu manquement à cette obligation. Quelle est la sanction ? Le juge, me semble t-il, est d'avis que la sanction est une réduction des honoraires. Dans la relation avocat-client, je ne vois pas d'autres sanctions satisfaisantes. Certes, le quantum de la diminution peut varier d'un cas à l'autre selon les éléments et circonstances propres à chaque espèce. Cette affaire d'appréciation et d'équilibre.

Work in progress (WIP) before January 25, 2010. [ 52 ] In the present matter the methodology referred to above can only really be applied to the work in progress after January 25, 2010. Prior to that date the bills were rendered in the ordinary course and paid, up to the bill of May 2009. Then, in the conduct of the settlement conference and the agreement reached, eventually documented, there is both an admission as to the amounts of the work in progress and a promise to pay it out of the settlement proceeds. [ 53 ] Mr Pereira De Lima confronts a significant hurdle to challenging this part of the claim.

Not only did he admit to the quantum and agree to pay it, this juridical act is part of a settlement agreement reached as a result of a settlement conference. All the parties to the litigation had an interest in the resolution of this matter, because as executor, Mr Pereira De Lima had ostensible authority to retain counsel. It was important that it be clarified whether or not he was personally responsible for these fees.

The agreement dealt with the fees of the previous attorneys differently, stipulating that the Estate would be ultimately responsible for these fees and the burden of contesting them in the fee litigation. The quantification of the Joli-Cœur Lacasse fees is part of the chose jugée . [ 54 ] Although Mr Pereira De Lima voices dissatisfaction with the settlement process and the agreement, the fact that he consented to the agreement and has not brought a legal recourse to have it annulled constitutes an insurmountable obstacle to his challenge.

The settlement agreement is indivisible, and he cannot claim some of the advantages it gives him while seeking to prove against it for the purposes of this case. [ 55 ] The Court finds that it has no choice but to confirm the two accounts up to the agreed amount of 23,870.44 covering the period up to and including January 25, 2010. WIP after Jan 25, 2010 [ 56 ] The services after the signature of the settlement agreement are not subject to the same finality. While it is indisputable that these fees are to the account of Mr Pereira De Lima personally, their quantification could not have been made at the time.

It is subject to the usual process defined by the jurisprudence and the code of ethics referred to above [ 57 ] The quantum of the fees to be incurred after the signing of the settlement agreement was not foreseeable to Mr Pereira De Lima and he was given no estimate. If Maitre Richer had given an estimate, it would have been for a modest amount, because much of the work to establish the accounting had been carried out between September 2009 and January 2010 and no complication was anticipated for the transfer of funds required to wind up the estate.

The agreement did contemplate at paragraph 23 the possibility of retaining local counsel, but this would not necessarily imply much involvement of Joli-Cœur Lacasse who was not the attorney of the estate. They were to act simply as a conduit for the transfer of funds. [ 58 ] They might be involved in drafting orders that the Parties, as defined in the agreement, agree to execute, but the only orders contemplated in

section 24 are the homologation by the judge of the Superior Court presiding at the CRA of the transaction agreement, which could be done without formality, and the order to be submitted to the same judge for the remittance of the funds in Portugal to Joli-Cœur Lacasse. [ 59 ] Essentially, the final steps would have been perceived by the unsophisticated client as a simple winding up, now that the agreement had been reached and most of the work in the rendering of the estate account had been done. [ 60 ] If these final steps were anticipated to be onerous, Joli-Cœur Lacasse would have given Mr Pereira De Lima fair warning before he signed the transaction agreement. [ 61 ] What occurred is quite different.

Maitre Richer became involved in the complexities of the problem of the transfer. Starting out as a simple matter of instructing the bank to make the transfer, it ended up being much more complex, depending upon the foreign recognition of the judgments of the Superior Court. [ 62 ] The problem was eventually solved, at least to permit the transfer of funds, with the involvement of correspondents in Lisbon. [ 63 ] But, by then, the client had become completely estranged from the process, and, for all intents and purposes disavowed Joli-Cœur Lacasse.

The fees continued to be generated however and to an extent that Mr Pereira De Lima did not anticipate. [ 64 ] Joli-Cœur Lacasse makes the point that the process of transferring the funds became more onerous because Mr Pereira De Lima failed to collaborate in signing necessary documents and forwarding an advance for the retention of Portuguese attorneys. It did not however produce any written evidence indicating that it warned Mr Pereira of this potential. [ 65 ] The impact of Mr Pereira De Lima's failure to collaborate is subject to

interpretation. The statement made to the Barreau in the context of the fee conciliation process states that the funds n'ont pas encore été transférés au Québec parce que la Banque Totta et M. José Pereira De Lima ont refusé toute collaboration en l'instance. Cette situation a largement contribué à l'escalade des honoraires en l'instance. [ 66 ] This statement implies that it is not only because of Mr Pereira De Lima but also because of the bank that there have been expenses. It

also implies that there are other reasons for the "escalade" of fees. [ 67 ] The Court should take into account the fact that the lack of cooperation caused certain fees to be incurred, but, this is a relative matter: the funds were eventually transferred despite his lack of cooperation, after he had been removed as executor, so it couldn't have been that much of an issue. [ 68 ] It is necessary to examine the last three bills with a view to arbitrating whether the fees are fair and reasonable in light of all of the circumstances. 1.

Invoice 241068 Feb 15, 2010 for $ 5,732.89 for the period from Jan 22, 2009 to February 12, 2010, 19.5 hours. (P-1.4) [ 69 ] According to Joli-Cœur Lacasse, at the time when the transaction agreement was signed, the WIP since May was $ 23,870.44 and this amount is covered by the first two bills.

This amount is inaccurate, but is the amount binding on both parties pursuant to the transaction agreement. [ 70 ] Therefore, the present invoice cannot include WIP occurring prior to the transaction agreement, of which there is 12 hours, which the Court excises from the account. [ 71 ] The remaining 7.50 hours consists of: - 3.50 to obtain the orders and have them issued by the judge - 1.50 for communication and filing of a declaration of settlement - 1.75 concerning the request for the transfer of funds - 0.50 relating to the justification for the expense of 23,000 by Mr Pereira De Lima as executor - 0.25 for a miscellaneous email. [ 72 ] Of this, 7.25 is at Maitre Richer's rate of $ 260 for $ 1,885 and 0.25 is at the paralegal rate of $ 75 for $ 18.75 [ 73 ] The total $ 1,903.75 plus tax equals $ 2,148.85. [ 74 ] Disbursments and tax thereon equal $ 62.33 for a total of $ 2,211.18 2.

Invoice 245840 June 21, 2010 for $ 8,371.99 for the period from Feb.18, 2009 to June 18, 2010, 27.5 hours. (P-1.50) [ 75 ] There are 25.5 hours, chiefly of Maitre Richer's time spend enquiring about the transfer and exploring the matter before there is any indication of a lack of cooperation by Mr Pereira De Lima. This is a billable of approximately $ 7,500 tax included. [ 76 ] At this point, the escalation of fees is not related to this lack of cooperation. [ 77 ] Maitre Richer mentioned in his testimony that he was, for 40 years, an expert in municipal taxation for the City of Montreal.

He was brought into the file because he had taken part, in connection with municipal tax files, in many mediations and was himself an accredited mediator. [ 78 ] It is on that basis that he justifies an hourly rate of $ 260. [ 79 ] In the process of trying to find a way to get the bank to transfer the funds, he was a novice.

His general experience as a lawyer did not serve to expedite this matter. [ 80 ] Thus from the point of view of experience, the hourly rate should be reduced to that of a junior lawyer. [ 81 ] As to the result obtained, there is none. [ 82 ] Looking at the time spent, there is no substantial event, such as a trial, a discovery or mediation, just a series of phone calls, reception of written communications, some research on the internet to obtain addresses, and even an inconsequential discussion with the settlement conference judge. All of the time charges are for even increments, mostly 0.25, 0.50, 0.75, etc.

We seem to be in the territory of minimum time charges and some upward rounding. [ 83 ] There is some solid time in dealing with the concrete issue of the retention of a correspondent in Lisbon. [ 84 ] There is also the time spent taking cognisance of Mr Pereira De Lima's lack of cooperation and beginning to deal with it. [ 85 ] The Court arbitrates a fee of $ 2,000.00 tax included, plus 254.26 for disbursements, including tax. 3.

Invoice 249189 Sept. 30, 2010 for $ 8,327.90 for the period from June 21, 2010 to September 27, 2010. (P-1.6) [ 86 ] This account covers the difficult period when Mr Pereira De Lima became exposed to uncertainties related to his alleged failure to comply with the settlement process.

The position taken, both by his opponent and by his attorneys, was that he should provide funds of his own, not from the estate assets, to pay for the hiring of the Portuguese firm, and that he should sign a judicial procuration. [ 87 ] Mr Pereira De Lima's son Denis who became involved to assist his father in the process, testified that, in his father's view, none of the time and energy spent in regard to the motion giving rise the Courville judgement should be billable. Me Richer did not relate his father's position to the judge and, in that sense, he did not represent his interests.

In fact, the perception is that he was assisting the other side in obtaining what they were seeking. The same considerations apply to the second motion to replace Mr Pereira De Lima as executor. [ 88 ] This testimony underscores an interesting paradox. Joli-Cœur Lacasse remained as attorneys of record in a file where it could not carry out the client's instructions nor act in what the client believed was his interest. In doing so, it was acting in what it believed was the client's best interest, i.e. the furtherance of the execution of the settlement agreement, but without his consent.

[ 89 ] Its mandate to represent him was not irrevocable. In reality, it no longer represented Mr Pereira De Lima, it represented the situation. [ 90 ] The result went against the client's wishes, but it may have been better than another possible result, a citation for contempt of court. Still, the decision should have been that of the client.

If Joli-Cœur Lacasse had ceased representing and Mr Pereira had taken counsel with another attorney in whose advice he had confidence, perhaps the matter would have evolved differently, with better or worse results but it would have been a true client-lawyer relationship. [ 91 ] In that circumstance, what fee should Joli-Cœur Lacasse be considered to have earned? [ 92 ] There is no evidence that Mr Pereira De Lima was given any advice as to the fee-related impact of what was occurring. He was no longer communicating with Joli-Cœur Lacasse.

His son was acting as his intermediary, but, having heard the son's testimony, the Court does not believe that the son understood what was happening whether in court, or, in the substantial, as opposed to the superficial aspects of the case. [ 93 ] In such circumstances, where there is a complete disconnect, an advocate cannot claim the fees he would be entitled to when he is adequately representing a client in a consensual professional relationship.

The usual elements of competence, counsel, effort, expertise and result are not measurable, in fact they are absent. [ 94 ] But, given the effort to act as an officer of the court, and, hopefully, provide some effective damage control, and because of his attempts at communicating with the client, the advocate should receive something for his pains. [ 95 ] The Court will arbitrate per diems for attendance at court in the two motions. The first required 2.5 hours of time, the second 5 hours.

The court awards $ 2,200, tax included, equivalent to 7.5 fully billable hours at Maitre Richer's full rate. [ 96 ] Adding the disbursements as indicated in the bill with tax, the bill is reduced to $ 2,379.73. [ 97 ] As reduced, the total amount of the bills, $ 30,715.61 less the amount paid, as indicated on the statement of account, $ 719.09, gives rise to a condemnation of $ 29,996.52 [ 98 ] Since the defendant was substantially successful on his defence, and the Plaintiff assigned the case to be pleaded by one of its lawyers, there will be no award as to costs.

FOR THESE REASONS, THE COURT: ALLOWS the action in part; DECLARES that the quantum of all accounts owed by the Defendant to the Plaintiff is $ 29,996.52, all taxes and disbursements included.

AUTHORISES the Plaintiff to withdraw from its trust account the amounts available for distribution to the Defendant pursuant to the settlement agreement P-9, as homologated by the Superior Court, up to this amount of $ 29,996.52; GIVES ACT of the Plaintiff's undertaking to refrain from any execution of this judgment on any other asset or garnishee until the distribution of funds from its trust account in execution of the settlement agreement is complete and the funds are insufficient; CONDEMNS the Defendant in, such an event of insufficiency of these funds, to satisfy the balance owing, together with interest at the legal rate and the additional indemnity provided at

article 1619 of the Civil Code of Quebec calculated on this balance from the date of the present judgement; THE WHOLE , without costs. __________________________________ DAVID L. CAMERON, J.C.Q. JOLICOEUR LACASSE Represented by itself through Maître Ada Wittenberger JOSÉ PEREIRA DE LIMA Represented by himself Date of hearing: September 5, 2012