2019 QCCQ 3762, 2019 QCCQ 3762

Azarang c. Trottier 2019 QCCQ 3762 COURT OF QUÉBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No: 500-32-700883-178 DATE: June 21, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE MARIE-JULIE CROTEAU, J.C.Q. ______________________________________________________________________ ALI AZARANG Plaintiff v. ME JEAN TROTTIER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Ali Azarang is suing Me Jean Trottier alleging that he committed several professional faults [1] while representing him in a lawsuit instituted by Mr. Mohammad Reza Samandarian and Mrs. Mitra Honarmand (the “ Couple ”). [ 2 ] Essentially, Mr. Azarang criticizes Me Trottier for an advice he gave him in the course of the proceedings, as well as for his failure to transfer an important information to his new lawyer after he ceased to represent him. According to Mr.

Azarang, had it not been for those shortcomings, the outcome of the trial would have been different and he would not have incurred some of the disbursements. He also alleges that Me Trottier overcharged him. [ 3 ] Me Trottier denies having committed any professional fault in the execution of the mandate entrusted to him. He underlines that his mandate ended at a preliminary stage, well before the hearing on the merits for which Mr. Azarang is now complaining of the result. [ 4 ] He also argues the absence of any causal connection between Mr. Azarang’s reproaches and the damages he claims.

In this regard, he insists that the outcome of the Couple’s lawsuit is attributable to the trial judge preferring the version of Mr. Azarang's opponents to his own and concluding that the latter acted in bad faith. [ 5 ] Me Trottier filed a Cross-Application in the amount of $10,000.00 claiming payment for an outstanding invoice, as well as moral and punitive damages on the basis that Mr. Azarang’s claim is abusive and was filed to intentionally harm him. QUESTIONS IN DISPUTE [6]

a) Has Mr. Azarang demonstrated, by a preponderance of evidence, that Me Trottier did not act as a reasonably competent, prudent and diligent lawyer would have placed in the same circumstances?

b) Does Mr. Azarang owe payment of Me Trottier’s outstanding invoice?

c) Is Me Trottier’s Cross-Application for damages well founded? CONTEXT [7] Mr. Azarang met the Couple in 2007 and assisted them in many ways, helping them with tasks ranging from translating, to doctors’ appointments, different purchases and housing needs. [8] In 2009, the Couple bought a house and applied for financing. As we will see later, Mr. Azarang’s alleged involvement in both transactions lies at the heart of his dispute with the Couple. [9] In 2014, the Couple needed to renegotiate the mortgage since the five-year term was coming to an end. The bank requested Mr.

Azarang’s agreement and signature, as he appeared as a co-owner of the house according to the documentation in its file. [10] The Couple was surprised of the bank’s request because since 2009, they had lived in the house and paid, without any assistance from Mr. Azarang, for all the related expenses, such as renovations, home insurance, taxes and mortgage installments. As such, the Couple was of the opinion that Mr.

Azarang only acted as a prête-nom and guarantor with respect to the purchase of their home and the mortgage, while the latter claimed to be an undivided co-owner of one third of the property. [11] It should be noted that each party was basing their contentions on the documentation establishing the different transactions (i.e. offer, counteroffers, amendments, deed of sale and mortgage), which, moreover contained contradictory information as to the nature of the legal relationship that existed between them. [12] The Couple contacted Mr. Azarang to obtain his consent to a closed mortgage at a fixed rate of 2.94%.

After several

exchanges, Mr. Azarang refused and kept insisting on obtaining an open mortgage. [13] In August 2015, the Couple filed a Motion to institute proceedings asking to be declared full owners of the house as Mr. Azarang was refusing to acknowledge that he only acted as a prête-nom during the purchase of the house. They also asked to be reimbursed for the increased rate of interest they were forced to pay due to Mr. Azarang’s refusal to cooperate at the time of the mortgage renewal.

This had forced the Couple to obtain an open mortgage at a rate ranging from 4.3% to 5%, instead of the fixed rate of 2.94% they initially wanted. [14] At Mr. Azarang’s request, Me Trottier filed an appearance and an agreement on the conduct of the proceedings. Upon several meetings with his client, Me Trottier filed a Defence and a Cross-Application for an amount still owed by the Couple regarding a loan granted by Mr. Azarang. [15] After that, several emails were exchanged between Me Trottier and the Couple's lawyer concerning the conditions of Mr.

Azarang’s examination on discovery. [16] At the end of January 2016, because Mr. Azarang seemed to have lost confidence in Me Trottier, the latter invited him to retain the services of another lawyer [2] . As such, on February 1, 2016, Me Hamdi Guerdelly filed a Notice of substitution of attorney and later assisted Mr. Azarang during his examination on discovery that took place on March 9, 2016. [17] The hearing of the case, presided by Justice Carol Cohen, lasted 3 days in April of 2018. The Couple, the real estate agent who helped them find their house, the notary and Mr.

Azarang testified. [18] On May 30, 2018, Justice Cohen declared the Couple as sole owners of the house and condemned Mr. Azarang to pay damages. She concluded that Mr. Azarang “ was acting as a prête-nom and translator for Plaintiffs at the time of their purchase of the House in 2009, and that as a result, he is not a part owner of the property ”. Mr. Azarang filed an appeal that was later dismissed further to a Motion to dismiss presented by the Couple.

ANALYSIS [19] Articles 2138, 2098 and following of the Civil Code of Québec ( C.C.Q. ), as well as the doctrine [3] on the basis of numerous court decisions, establish the principles that must guide the Court with regard to the professional liability of a lawyer: • The lawyer must fulfill the mandate entrusted to him with prudence, diligence, loyalty, honesty and in the best interest of his client. • In general, the lawyer, as any professional, is bound to an obligation of means [4] . • The burden of establishing the lawyer's fault rests on the client. • In order to determine whether a lawyer committed a fault, the Court must assess whether he acted as a reasonably competent, prudent and diligent lawyer would have placed in the same circumstances: o In the case of a litigation lawyer, the context of the case and the circumstances in which he was placed when making the decisions or the actions for which he is sued are of particular importance. o The litigation lawyer benefits from a large discretion in the execution of his mandate, as he possesses the knowledge and expertise to determine the appropriate strategy as to the administration of the file and of the evidence [5] . o Thus, at any time during the proceedings, he must make decisions, without being able to guarantee the impact of these on the outcome of the litigation.

The ultimate decision, let us recall, rests with a third party, namely the judge who is presiding over the trial. This is why the Court must be careful not to analyze retrospectively the decisions made by the litigation lawyer through the filter of the final judgment, which represents the perfect hindsight vision which the lawyer did not have at the time he made his decision. o It should also be borne in mind that the lawyer, like any professional who is bound by an obligation of means, has the right to make mistakes.

In other words, a simple mistake does not necessarily equate to a fault. • To entail the professional liability of a lawyer, the client must also establish a causal connection between the fault he is accusing him of and the damages he claims. o In order to do so, he must prove, by a preponderance of evidence, that a better result would have been obtained had it not been for the fault committed by the lawyer. o In order to present this evidence, the client often has no alternative but to retry the original case, disregarding the alleged fault, in order to show that a more favourable outcome would have occurred.

The doctrine refers to this principle as "the trial within the trial".

a) Has Mr. Azarang demonstrated, by a preponderance of evidence, that Me Trottier did not act as a reasonably competent, prudent and diligent lawyer would have placed in the same circumstances? [20] For a better understanding, the Court will address this question by analyzing separately each of the heads of damages claimed by Mr. Azarang. • Interpreter fees [21] Mr. Azarang claims that Me Trottier failed to transfer to his new lawyer the email confirming the agreement he had reached with the Couple’s lawyer by which, to his understanding, his opponents had agreed to provide him, at their own costs, an interpreter for

his examination on discovery (“ Agreement Email ”). Thus, he seeks the reimbursement of the sum of $2,000.00 he considers he had to pay due to Me Trottier’s fault. [22] The Court is of the opinion that contrary to Mr. Azarang's understanding, the Agreement Email he refers to cannot lead to the conclusion that the Couple had agreed to pay for the interpreter's costs unconditionally. Indeed, the Agreement email received by Me Trottier states: We have received instructions to proceed with the examination of your client and retain the services of an interpret for him.

We will reserve all our rights and recourses in that respect against your client . (emphasis added) [23] That being said, for the reasons set out below, the Court finds that Mr. Azarang did not discharge his burden of demonstrating that Me Trottier committed any fault with regard to the transfer of the Agreement Email. [24] First, Me Trottier testified that he gave Mr. Azarang’s new lawyer a complete copy of his file as soon as he received the Notice of substitution of attorney. No evidence has been presented by Mr.

Azarang to contradict Me Trottier's convincing testimony on this subject. [25] Moreover, the evidence demonstrates that, upon receipt of the Agreement Email, Me Trottier immediately forwarded it to Mr. Azarang [6] . Therefore, if his new lawyer was not in possession of the Agreement Email, as claimed, Mr. Azarang could very well have given it to him prior to the examination that took place a few weeks later. [26] In addition, the Court underlines that the invoice filed by Mr. Azarang in support of the damages he claims does not prove that he paid, as alleged, the sum of $ 2,000.00 for the

interpretation services [7] . Indeed, the only proof that he has filed is an email dated May 11, 2018, from the Couple’s lawyer confirming the payment of $ 2,827.34 " as to the judicial fees ". Likely, this payment was made in the context of the execution of Justice Cohen’s judgment which condemned him to the legal costs. • Legal fees [27] On December 3, 2015, Me Trottier sent an invoice in the amount of $3,019.04 [8] for the professional services rendered between August 25 and December 2, 2015. [28] Fees amounting to $300 were paid by Mr. Azarang in the fall of 2015.

It is established that an additional payment of $1,000.00 was made on December 9, 2015. Mr. Azarang is claiming the reimbursement of the $1,300.00 he paid to Me Trottier alleging that the latter “ charged me multiple times for the same thing to draft a defence even though I gave him the answers ahead of time ”. [29] The burden of proof rests on Mr. Azarang who must present compelling evidence to prove that Me Trottier’s fees were unfair and unreasonable given the nature of the mandate that was entrusted to him [9] . The Court concludes that Mr. Azarang failed to do so. [30] Indeed, the evidence presented by Mr.

Azarang is limited to his testimony during which he insisted that Me Trottier knew all the facts required to draft the appropriate proceedings and that the time he devoted to it was exaggerated. [31] The Court prefers Me Trottier's testimony, as it was more accurate and relied on the detailed time entries of his invoice [10] . Me Trottier was able to explain and justify the time he devoted in Mr. Azarang’s file. As such, in addition to the various exchanges and meetings with Mr. Azarang which totalled 3.50 hours, Me Trottier spent 6.50 hours drafting the

schedule of proceedings, the Defence and the Cross-Application and 0.75 hours exchanging with the opposing attorney. [32] In light of Me Trottier’s convincing explanations, the Court concludes that the fees charged to Mr. Azarang are fair and reasonable taking into consideration the nature of the services rendered and the circumstances of the case. • Justice Cohen's judgment [33] In support of his claim, Mr. Azarang alleges that Me Trottier “ gave me wrong advice for renewing the mortgage in summer of 2014. Therefore it has caused me to miss my opportunity to resolve my whole dispute with my opponents ”.

At trial, he added that Me Trottier wrongfully advised him to refuse to sign a closed mortgage and, as a result of this, Justice Cohen condemned him to pay damages to the Couple. [34] To succeed against Me Trottier, Mr. Azarang must demonstrate that there is a causal connection between the alleged misconduct and the damages he claims. The burden in this regard is particularly demanding. Indeed, Mr.

Azarang must show, with preponderance of evidence, that had it not been for the advice Me Trottier allegedly gave him, he would have acted differently and this would have changed the outcome of the trial and altered Justice Cohen’s assessment of the damages. This is the application of the " trial within the trial " principle. [35] For the reasons set out below, the Court concludes that Mr.

Azarang did not discharge his burden in this regard. [36] Firstly, the evidence shows that there were several exchanges regarding the terms of the mortgage between, on the one hand, Me Trottier and the Couple's lawyer, and on the other hand, between Mr. Azarang and Me Trottier, as well as between Mr. Azarang and the bank. However, none of these exchanges allow the Court to conclude that Me Trottier specifically advised Mr. Azarang against signing a closed mortgage. [37] Indeed, based on the preponderance of evidence, the Court concludes that Me Trottier only suggested Mr.

Azarang to initiate discussions with the Couple to try to convince them to accept an open mortgage. Me Trottier explained that his suggestion was formulated solely on the basis of the information given by Mr. Azarang to the effect that he wanted to sell one third of the property he

owned to the Couple. In that specific context, Me Trottier had emphasized that an open mortgage would allow to safeguard the rights of the parties during the finalization of their discussions. However, he never recommended to Mr. Azarang not to sign a closed mortgage. [38] Furthermore, the involvement of Me Trottier ceased when he received a letter from the Couple's lawyer informing him that “ as discussed here is confirmation of acceptance by TD of mortgage in favor of my clients, without your client ” [11] . The bank’s acceptance letter confirmed a fixed annual interest rate of 2.34 % for a 2 years term.

In that respect, Me Trottier’s suggestion had not only become moot, but he had no involvement in what happened next between the Couple and Mr. Azarang. [39] In any event, the Court does not know why the Couple ultimately signed an open mortgage, despite the bank’s acceptance letter for a closed mortgage without Mr. Azarang’s involvement. [40] But, there is more. [41] Indeed, the analysis of Justice Cohen's judgment not only demonstrates that Mr.

Azarang’s condemnation to damages is based on the fact that the explanations he gave to justify his refusal to renew the mortgage on the terms suggested by the Couple were not convincing but, above all, because Justice Cohen concluded that he had shown bad faith. [42] Without summarizing the judgment, the Court emphasizes a number of factors that are of particular importance in this regard. [43] First of all, in her analysis, Justice Cohen sets out the reasons for which she preferred the Couple’s testimony to Mr.

Azarang’s: [42] Defendant’s version of the events leading up to the purchase of the House whereby he claims to have obtained the consent of Plaintiffs to become a co-owner of the House , both in his examination on discovery and in his testimony before the undersigned, is contradictory and illogical and not supported by the evidence. His testimony has little or no credibility and even his statements concerning the search for a house in Châteauguay, cited in part above, reveal that this location was chosen not because he wanted to live there himself but because it was near a friend of the Husband’s.

In fact, it is clear from all the evidence that Azarang never had any intention of paying any part of the purchase price, mortgages , taxes or expenses for House, and moreover that he was and continues to be reimbursed for any sums he advanced to the Plaintiffs in that regard. [43] Plaintiffs’ testimony, on the other hand, is credible and substantiated by all of the documentation provided as well as the testimony of the Notary, the Agent as well as that of a family friend. [emphasis added] [44] Moreover, she concluded that based on Mr.

Azarang’s own assertions, his refusal to sign the closed mortgage was motivated by the fact that he “ detested ” the Couple: [49] The Court will also grant Plaintiffs’ claim in damages, given Defendant’s bad faith refusal to sign a closed mortgage at the time of renewal in 2014 , the whole in accordance with

article 1375 of the Civil Code of Quebec , which states that good faith must govern the conduct of parties to such transactions. [50] On this issue, the undersigned must point out Defendant’s statement, in his examination on discovery, that he “ detested ” Plaintiffs (page 36) and that he did not want to renew the Mortgage as he wanted to be finished with this “ investment ” (page 37) .

His refusal to sign the Mortgage renewal at a lower fixed rate of interest, even if he was owner, when he was contributing nothing whatsoever towards the Mortgage payments or interest, is not only inconsistent with his claim that he was a co-owner but also a clear indication of his bad faith . [emphasis added] [45] Clearly, the statements made by Mr. Azarang during his examination on discovery impacted Judge Cohen's decision to condemn him to damages. Mr.

Azarang cannot blame Me Trottier for the fact that Justice Cohen gave more weight to the statements made during his examination on discovery than to the testimony heard at trial. The Court notes that on both occasions Mr. Azarang was not represented by Me Trottier. [46] While Mr.

Azarang may be disappointed or even dissatisfied with Justice Cohen's judgment and her assessment of the facts and his testimony, the fact remains that the undersigned is not sitting on appeal of that judgment and certainly does not have to comment on the reasons for her judgment, and even less on the correctness of her decision. [47] For all these reasons, Mr. Azarang failed to present compelling evidence establishing that the damages he claims to have suffered are the result of the professional services rendered by Me Trottier.

b) Does Mr. Azarang owe payment of Me Trottier’s outstanding invoice? [48] On December 3, 2015, Me Trottier sent to Mr. Azarang his invoice in the amount of $3,019.04. [49] The parties met on December 9, 2015 and exchanged on the invoice and the terms of payment. [50] During the meeting, Mr. Trottier agreed to reduce his invoice to a gross sum of $2,500.00 on two conditions: the first being that Mr. Azarang was to immediately give him a first payment of $1,000.00 and the second that the balance of $1,500.00 would be payable at the beginning of 2016. [51] The evidence shows that Mr.

Azarang met the first condition and paid Me Trottier $1,000.00 in December 2015. However, he failed to pay the balance of $1,500.00. [52] That being said, considering that the agreement reached on December 9, 2015, was conditional and that Mr. Azarang failed to

meet one of the two essential conditions, Me Trottier is refusing to uphold the reduction of his invoice and is now seeking payment of the unpaid balance of $2,019.04 ($3,019.04 - $1,000.00). [53] The Court finds that Me Trottier has discharged his onus of proving the facts in support of his claim. Indeed, he testified in a clear fashion as to what steps he took in the dispute opposing Mr. Azarang to the Couple. His testimony was solid and credible. As such, and for the reasons already expressed in paragraphs 30 and 31, the Court finds that the fees charged by Mr.

Trottier are reasonable and that there is no reason to reduce them. Therefore, Mr. Azarang is condemned to pay $2,019.04 to Me Trottier.

c) Is Me Trottier’s Cross-Application for damages well founded ? [54] Me Trottier claims $2,980.96 as damages for the time he lost defending himself from what he considers abusive proceedings, as well as $5,000.00 in punitive damages. Essentially, Me Trottier contends that Mr. Azarang’s claim was manifestly unfounded and should be viewed as an unfair attack against him. [55] The Court does not doubt that Me Trottier spent time dealing with the present case and other complaints filed by Mr. Azarang.

However, Courts have repeatedly pointed out that the reimbursement of legal fees incurred for presenting a claim or the award of damages for loss of time defending oneself is granted in rare exceptions, only when several specific conditions are met, including abuse of process and reprehensible judicial conduct [12] . [56] The evidence on file does not support any such conclusion. Indeed, based on the evidence adduced at trial, the Court concludes that Mr. Azarang had a sincere, albeit erroneous, belief on the merits of his claim against Me Trottier. The Court finds that Mr.

Azarang’s claim, although ill-conceived and unfounded in law, was not motivated by the intent decried by Me Trottier. [57] Consequently, no damages will be awarded in this regard. FOR THESE REASONS, THE COURT: DISMISSES the Demand of Mr. Ali Azarang against Me Jean Trottier, without judicial fees; GRANTS in part the Cross-Application of Me Jean Trottier against Mr. Ali Azarang; CONDEMNS Mr. Ali Azarang to pay to Me Jean Trottier $2,019.04 with interest at the legal rate and the additional indemnity foreseen by

article 1619 of the Civil Code of Québec , calculated from March 14, 2017, plus judicial fees of $200. __________________________________ MARIE-JULIE CROTEAU, J.C.Q. Trial date: February 22, 2019