2015 QCCQ 5884, 2015 QCCQ 5884

Goldwater Dubé inc. c. Di Stefano 2015 QCCQ 5884 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-218459-157 DATE: June 22, 2015 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ GOLDWATER DUBÉ INC. Plaintiff v.

MARIO DI STEFANO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, a firm of attorneys practicing in matrimonial law, sues a former client, the Defendant, Mario Di Stefano, for a balance of fees in the amount of $ 1,575.36 relating to services rendered and disbursements incurred by the firm, from October 20, 2014 to November 13, 2014. [ 2 ] According to the oral defence recorded in the minutes at the presentation of the Motion, the Defendant alleges that he did not give a mandate for the services that are the object of the unpaid account, but rather he gave instructions to cease the work which the attorney continued without his authorization. [ 3 ] To decide this case, the Court must determine: 1) Were the services for which the outstanding bill was issued authorized by the Defendant ? 2) If so, are these fees fair and reasonable ?

FACTS [ 4 ] The unpaid fees are part of a billing history between June 17, 2014 and November 17, 2014.

The services relate to the Plaintiff’s representation of Mr Di Stefano as attorney of record in a matrimonial file concerning child support. [ 5 ] There were previous judgments in the file and, when Mr Di Stefano brought the case to the Plaintiff’s firm, his instructions were to attempt to bring about a settlement of a new motion that had been brought by his former spouse for special amounts of child support not included in a judgement of February 27, 2014 which, among other things, attributed most of the total financial support of the children to the Defendant. [ 6 ] The new file implied a duty on the part of Mr Di Stefano to give disclosure of his source of income which had changed very recently. [ 7 ] A series of bills were issued by the Plaintiff between June 17, 2014 and October 20, 2014, all of which were paid.

Mr Di Stefano was unhappy with some of the billing, in an amount of approximately of $ 4,400, but he ended up paying that amount in October 2014.

At the trial, Mr Di Stefano admits that he accepted the hourly rate and all of the services provided up until the bill that is the subject matter of the present case. [ 8 ] In all, the billing in the file amounts to approximately $ 12,000. [ 9 ] A professional-services agreement (P-1) clearly spells out the hourly rates of all of the attorneys working in the firm, including that of Me Randi Korzinstone who managed the file from the outset. [ 10 ] Mr Di Stefano informed the Court that he always believed it would be impossible to settle the file given what he perceived to be the unreasonable demands of his former spouse.

[ 11 ] The file was, however, managed in such way that it would have been clear to opposing counsel that he expected a settlement offer to be forthcoming on behalf of his former spouse. [ 12 ] There is an exchange of emails of October 17, 2014 that is critical to an understanding of the file. On that date, opposing counsel, Antonella Petrolito, asked her consoeur Randi Korzinstone, to respond to an earlier email and to provide the documents from her client that were considered necessary to reach a settlement.

When he received a copy of this email, Mr Di Stefano wrote to Me Korzinstone: Please tell her I await her proposal which was due months ago. She has the 3 first and original paystubs, nothing has changed. My position is to go see a judge in February. She is showing bad faith in not providing a proposal that she said she would do. And enough is enough. No more communication until the new year. I sent you the chq for fees on Wednesday. Thanks have a nice weekend.

Mario [ 13 ] Acting on the first part of this email instructing her to seek a settlement proposal from her consoeur, she wrote the same day to Maître Petrolito: “My client awaits your draft settlement proposal you indicated that you prepared.” [ 14 ] She also answers to make it clear there would be no further documentary disclosure: “As already discussed numerous times, all relevant documents required to reach a settlement in this file have already been provided.” [ 15 ] In this last part of the email, she is in fact acting against what she believes to be her client’s best interests and she so advises him on October 23, 2014, when she writes, prompted by encouraging him to provide the documents, at least those that had already been offered, and advising him that his chances to reach a settlement would be enhanced if the documents were provided. [ 16 ] She does so in replying to another request for these documents she received October 21, 2015. [ 17 ] Mr Di Stefano replies on October 23, 2014, reiterating that he wants to settle but stating his conviction that the case must be decided by a judge “ Negociation in the past was fruitless and it will be so again now”. [ 18 ] He complains of the continued requests by Maître Petrolito as “harassment” and he states “I am not paying for emails back and forth as at Oct 17 th when I told you of my position and she should have been told of my position”. [ 19 ] He reiterates that: “I will wait until Feb, 2015.

I want a judge to hear that after a Feb 27, 2014 judgement Me Petrolito sent a letter to Judge Taschereau a mere 3 weeks later asking him to render on special expenses […]. I will not respond to anymore emails unless a proposal is presented. Thanks. Mario.” [ 20 ] The same day, Maître Korzinstone seeks his confirmation of instructions not to respond to her consoeur. The next day, October 24, Mr Di Stefano responds: “Correct. For 10 th time I await a proposal and no more wasting either of our time. See you next year.

Mario”. [ 21 ] On November 5 th , Maître Korzinstone confirms that she is refusing to take Maître Petrolito’s calls. Despite this, Maître Petrolito sends an email intimating at a settlement for lump sum and Maître Korzinstone passes it on to her client. [ 22 ] The next day, in a telephone conversation with Mr Di Stefano; she confirms her instructions are not to reply to Maître Petrolito in any way.

She states, however, that she cannot control incoming communications from Maître Petrolito and that is her duty to always keep him informed of such communications, and that she will continue to forward any emails received from Maître Petrolito. [ 23 ] Although she disagrees with his approach, she confirms that she will not pursue any communication or settlement discussion with her opponent, unless he gives her instructions to do so. [ 24 ] On November 11, she receives a concrete settlement offer in the form of a draft Consent to Judgment, which she passes on to Mr Di Stefano, confirming to him that she will not respond to it, make comments on it nor even read it, unless he instructs her specifically to do so. [ 25 ] On November 12, in the morning, she seeks instructions and later that day, in the afternoon, there is a telephone call where she is given specific instructions to respond to her consoeur refusing the settlement offer, the text of which she had not read.

She gives a specific response at 5:33 p.m. to her consoeur.

The email is sufficiently detailed to strongly suggest that she obtained instructions from Mr Di Stefano to state precisely what she did state. [ 26 ] At first, in his examination, Mr Di Stefano would not confirm that he had in fact spoken to her during the day November 12 prior to this email being sent. [ 27 ] After cross-examination and requests for clarification, he finally admitted that it must be the case that he spoke and gave the instructions that are implied when one reads the email (P-10). [ 28 ] An invoice dated November 17 th (P-2) is prepared and sent, in the amount of $ 1,575.36.

It covers all of the activities that occurred since October 17 th . [ 29 ] The first charge is October 20 th , 2014 and the last charge November 13 th , 2014. [ 30 ] All of the communications mentioned are between Maître Korzinstone and Mr Di Stefano with the exception of an outgoing email, that of November 12 th (P-10) and a 25-minute telephone call received from Maître Petrolito, which she accepted as a courtesy, but for which she did not bill her client consistently with his instructions not to discuss the matter with Maître Petrolito.

[ 31 ] Apart from the routine communications between Maître Korzinstone and her client, and the passing-on to him of incoming correspondence received, there are two entries of two hours each and one entry of 50 minutes on October 24, 27 and 28 respectively. These three episodes of file preparation are explained by Maître Korzinstone as being necessary for her to be prepared for the trial scheduled in February.

It is a voluminous file and she felt that it was her responsibility to become aware of its history, so as to be adequately prepared. [ 32 ] The total of 4 hours 50 minutes results in a charge at the hourly rate of $ 180 of $ 870 plus taxes.

The rest of the bill is taken up with the ongoing correspondence previously mentioned. [ 33 ] It is important to bear in mind that this more profound look at the file only occurred after Mr Di Stefano had made it clear, in the correspondence leading up to October 24 th , that he expects his attorney to have no communication with her consoeur and that he is convinced that the case will only be resolved before a judge. [ 34 ] While he states that he is awaiting a settlement proposal, there is no reasonable expectation that this proposal will result in anything, and, in fact when a proposal eventually does come in November, he instructs his attorney to disregard it.

ANALYSIS [ 35 ] Mr Di Stefano is contesting this bill on a question of principle: he emphasises that he paid all of his bills diligently, even when he did not agree and he did not try to negotiate this bill, be simply expected to have it cancelled. [ 36 ] His point is that as of October 27 th , his expectation was that the file would be put to one side and that there would be no further work in the file until final preparation, if it was required, in the new year. [ 37 ] In his testimony, he stated that he had made it clear that there was no work to be done. But, the email correspondence does not show this.

Rather, it shows that his attorney is being told to put no effort into communicating with her opposing counsel with the view to settling the file, even to the point that she should not take her opponent’s calls.

While he “awaits a settlement proposal”, since he is unwilling to provide documents that are required in that process and since he, himself is convinced that no reasonable proposal will be made by his former spouse, it is more than plausible that Maître Korzinstone was right when she concluded that she needed to be ready for trial. [ 38 ] Mr Di Stefano stated in one of his answers that he expected that this work would only be done in the New Year, and that because a settlement proposal was still possible, it was premature to do any file preparation. [ 39 ] That statement is possible but extremely unlikely. [ 40 ] He does not challenge the reasonableness of 4 hours 50 minutes of file preparation, and admits that he would have accepted if it had been done closer to the trial date but he feels that he did not authorize this early expenditure of time. [ 41 ] As to his expectation that he would pay nothing further for communications, Maître Korzinstone pointed out to him and, quite rightly, told the Court, that she was under an ethical duty and a professional duty to communicate with her client and to provide him with all information she received from the opposing side, even if she was told to do nothing to avoid any communication with her opposing counsel. [ 42 ] Mr Di Stefano argues that she could have put an end to all these communications if she had clearly told her consoeur that there should be an end to any future correspondence. [ 43 ] The Court does not concur with this proposition.

On October 17 th , Maître Korzinstone received, as her principle instructions, to tell her opposing counsel that “I await her proposal which was due months ago”. When Me Korzinstone followed this instruction, she advised her consoeur that a settlement proposal was expected. It would have been somewhat contradictory to advise her counterpart that, on the other hand, all communication should cease. [ 44 ] While Mr Di Stefano sincerely hoped that there would be no future costly communication, he did not instruct his attorney to make it clear that there was absolutely no possibility of a settlement.

He was therefore encouraging his opponent to formulate settlement offers and that would, inevitably, include some communications. [ 45 ] While Maître Korzinstone diligently attempted to follow her client’s instructions to refuse any communications with opposing counsel, it cannot be considered her fault if her opposing counsel continued to attempt communicate with her. [ 46 ] This disposes of the Defendant’s contestation of the charges relating to ongoing communications received. [ 47 ] There was only one communication made by Me Korzinstone to her opponent and the Defendant was eventually compelled to accept that he had instructed her to initiate this communication. [ 48 ] This leaves the question of the 4 hours 50 minutes spent reading the file. [ 49 ] The Court does not accept Mr Di Stefano’s assertion that his lawyer had no business reading the file, because the trial was too far off. [ 50 ] As a professional, Maître Korzinstone had both an ethical and a professional duty to read the file.

She only did so when it was made clear to her that her client had no expectation of settlement, and it is perhaps ironic that she is being faulted in reading the file too soon: would it have been better if she had read the file at the last minute ? [ 51 ] There is no attempt to contest the number of hours spent as being unreasonable as a function of the magnitude of the file.

[ 52 ] The Court fully understands Mr Di Stefano’s frustration that he was compelled to incur legal fees for the management of the file, in which, he believed, his former spouse was acting unreasonably. He did, however, give an initial mandate to try to settle the file, and subsequently, a mandate not to try to settle it.

Once the direction was clearly given not to do anything to facilitate a settlement, it became the attorney’s duty to take reasonable steps to be prepared for the inevitable trial, the date for which had already been set. [ 53 ] The communications telling her to stop working related only to the initiation of communications between herself and her opposing counsel towards settlement: they did not mean she should shut the file down and not prepare it, in the ordinary course of practice, for the inevitable trial date. [ 54 ] The Court also understands Mr Di Stefano’s frustration in not having been able to prevent his former spouse’s counsel from creating costs for himself by initiating communications, but it was simply an unreasonable expectation to think that his counsel, however skilled she might have been in the art of stonewalling, could prevent her opponent from trying to settle, especially when he had requested a proposal. [ 55 ] Maître Korzinstone should be praised, not faulted, for getting prepared for trial.

She did not want to have to “wing it” when the trial would be underway in approximately two months time. That is a proper way to act, toward the client and toward the Court. [ 56 ] It is unfortunate that Mr Di Stefano must pay for these services of preparation that he cannot now benefit from but it was his decision to terminate the mandate. This was something he did out of frustration but it was not justified by any fault or lack of skill and care on the part of his attorney, nor by any failure on her part to follow his instructions.

He did not instruct her not to be reasonably prepared for trial, nor could she have been expected to follow such instructions. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay to Plaintiff the sum of $ 1,575.36 with interest at the legal rate, plus the additional indemnity provided for by

article 1619 of the Civil code of Québec , as of November 17, 2014; THE WHOLE, with costs. __________________________________ DAVID L. CAMERON, J.C.Q. Me Émilie Kissel GOLDWATER DUBÉ INC. Attorney for Plaintiff Mario Di Stefano Not represented Date of hearing: May 29, 2015