2019 QCCQ 1497, 2019 QCCQ 1497

Kanemy c. Friedrich 2019 QCCQ 1497 JA 0833 COUR DU QUÉBEC « Division des petites créances » CANADA PROVINCE DE QUÉBEC DISTRICT DE Laval LOCALITÉ DE Laval « Chambre civile » N° : 540-32-030332-173 DATE : 6 mars 2019 SOUS LA PRÉSIDENCE DE L’HONORABLE JEAN-PIERRE ARCHAMBAULT, JCQ Maître Laurent R. Kanemy Plaintiff c. KARL FRIEDRICH Defendant JUDGMENT FACTS [ 1 ] Plaintiff Laurent R.

Kanemy, a lawyer and member of the Quebec Bar is claiming an amount of 8 355,23 $ from defendant Karl Friedrich for professional services rendered. [ 2 ] The amount claimed represents the balance owed to Plaintiff by Defendant for professional services rendered during the last part of his mandate, namely a balance of 4 882,78 $ plus 2 additional invoices all of which total 35 466,63 $ [1] . [ 3 ] Defendant contest this claim. [ 4 ] Defendant dismissed Plaintiff as his lawyer in May 2016 because he was not happy with his handling of his file. [ 5 ] He also contests certain amounts claimed by Plaintiff in his accounts for professional services rendered.

Question in litigation Is the amount claimed by Plaintiff for professional services rendered to Defendant in the amount of 8 355,23 $ well founded in facts and in law ? Rules of law [ 6 ] In order for the parties to better understand the present judgment the Court refers to the following pertinent articles of the Civil Code of Quebec hereinafter cited that receive application in the present file. [ 7 ]

Article 2803 C.c.Q. states : 2803 . A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. »

[ 8 ] This

article imposes on Plaintiff’s shoulders, the burden of proving the allegations mentioned in his demand by preponderance of evidence. [ 9 ]

Article 2804 C.c.Q. adds : 2804 . Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 10 ] This

article allows the Court to appreciate the proof presented by each party in order to conclude that the existence of a fact is more probable or likely than its non-existence. [ 11 ] These two articles are particularly helpful to the Court when in the presence of contradictory versions of the facts as is the case in the present file. [ 12 ] It is with this in mind that the Court shall proceed with the analysis of the proof presented during the instruction of the case.

ANALYSIS AND DECISION [ 13 ] Following the testimonial and documentary proof presented by both parties, the Court retains the following facts. [ 14 ] It is admitted that Plaintiff represented Defendant from October 2010 until May 13, 2016 when defendant dismissed him. [ 15 ] This included a long and difficult court case before the Superior Court whereby Plaintiff was sued by his own children Michael and Astrid Friedrich who were represented by Me A.

Barry Coleman which ended with a judgment by judge Kirkland Casgrain dated December 2015 after a 14 day trial [2] . [ 16 ] Their action was based on an alleged “family trust” or alternatively a “family pact” which they allege was created verbally many years ago before their mother died whereby all of their parents’ estates belonged to them as well as to their parents and where to be eventually bequeathed to them after their parents’ death. [ 17 ] As the rules governing this “family trust” or “family pact” were never established, they were asking the Court’s decision to determine what exactly these rules should be. [ 18 ] Their father, Defendant Karl Friedrich contested his children’s claim vigorously with his lawyer Me Kanemy. [ 19 ] Judge Kirkland Casgrain rejected Plaintiff’s children’s action against Defendant in the following terms: “

(36) Plaintiffs’ allegations are basically a quagmire of ill conceived ideas.

(37) The proof offered is a mishmash of stories relying on the contention that there was a verbal “family trust” or verbal “family pact”.

(38) Hoping to improve his legal arguments, Plaintiffs’ attorney now described this contract in his written pleadings submitted last fall as “the agreement”.

(39) Plaintiffs’ contention of a “family trust” or “family pact” runs contrary to the law, namely specifically articles 1824 and 706 of the Civil Code .” [ 20 ] Judge Casgrain accepted Karl Friedrich’s request for partition and declared his claim for abusive procedures from his children well founded in facts and in law and allowed his claim for damages in the following manner: “

(61) Using the Court’s discretion, in view of the intrinsic frivolous nature of Plaintiffs’ procedures as well as the numerous delays and obvious legal expenses incurred by their fault and the fault of their attorney, the Court will allow this claim to stand for 10,000,00 $” (our underlining) [ 21 ] Judge Casgrain also ordered the partition of various properties including the motel located at 505 Beaconsfield Boulevard in Beaconsfield to which Defendant refers to in his contestation of Plaintiff’s claim. [ 22 ] As morefully appears from the judgment from Judge Jean-François Buffoni dated May 20 th , 2016 [3] , after Judge Casgrain’s judgment, in March 2016, Justice Sansfaçon of the Superior Court was also seized of the case and appointed an appraiser and a real estate agent to give effect and carry out the evaluation and sale of this property. [ 23 ] The appraiser appointed by judge Sansfsaçon produced an evaluation at 526 500,00 $ for the Beaconsfield property. [ 24 ] Then, on May 9 th 2016, Defendant Karl Friedrich through Plaintiff Kanemy, presented a motion before justice Decarie of the Superior Court for permission to sell the property at a price of 800 000,00 $ based on an existing offer expiring May 28, 2016. [ 25 ] This motion was contested by his children on the basis that they had doubts that 800 000,00 $ was a reasonable offer and they presented their own motion to name a new appraiser. [ 26 ] The Court is well aware the Plaintiff Kanemy was no longer representing Defendant Friedrich as of May, 13, 2016. [ 27 ] In an email from Defendant Friedrich to Plaintiff Kanemy dated May 29, 2016, Mr.

Friedrich declares:

“ I want you to know that the reason I dismissed you was because you were not doing your job – you were no match for Coleman . I hadn’t been happy with you since March 2016. I was very disappointed at how dismissive you were when I instructed you via email on what I wanted done… The straw that broke the camel’s back was the “letter from City of Beaconsfield”… I was shocked at your performance and in-action at our court on May -09 th .

Coleman had argued and dismissed in his emails to you, Sandros Mavica’s residential evaluation to the point that his clients would refuse to pay their share of the cost since they alleged was so wrong… I want to raise another point : you were no match for Coleman. He outdid you at every step of the way… he took advantage of the justice system effectively and you were unable to stop him. I needed someone aggressive enough to curtail and destroy his arguments from the onset.

My case should have been an easy win from the beginning, you had every element to win in a landslide… I felt you were too busy with other clients to handle my case properly and I was only a cash cow for you. In the end, I felt neglected and dismissed by you with my wishes unheard. “ (our own underlining) [ 28 ] In his judgment judge Buffoni declared: “

(12) The grounds raised by the Plaintiffs to oppose the proposed sale are without merit…

(13) On the whole, it is my view that the plaintiffs’s contestation of the offer is of the same “intrinsic frivolous nature” as the rest of plaintiffs’ procedures, as they were qualified in Mr.

Justice Casgrain’s judgment.” (our own underlining) [ 29 ] The amount claimed by Plaintiff represents the balance owed to Plaintiff by Defendant for professional services rendered during the last part of his mandate, namely a balance of 4 882,78 $ plus 2 additional invoices all of which total 35 466,63 $ [4] . [ 30 ] The first invoice is dated May 30 th 2016, in the amount of 22 285,12 $, and covers services rendered from June 16 th ,2015 to March 7 th , 2016. [ 31 ] It includes the long 14 day court case which resulted in judge Kirkland Casgrain’s judgment and the preparation for said court case. [ 32 ] The second invoice, also dated May 30 th , 2016 in the amount of 9 298,73 $ covers services rendered from March 9 th to May 12, 2016. [ 33 ] It includes the presence in Court of Maître Kanemy before judge Sansfaçon in March and before judge Décarie on the 9 th of May and resulted in their judgments in favour of Plaintiff. [ 34 ] Plaintiff sent these accounts for professional services rendered to notary Gossett who was supposed to pay them from the funds he had received from the sale of the motel in Beaconsfield. [ 35 ] On October 25, 2016, Plaintiff sent an email to Defendant asking him to pay the outstanding balance of 35 466,63 $ [5] . [ 36 ] On October 26, 2016, Defendant sent an email to Notary Gossett and to Plaintiff [6] stating: “Dear Me Gossett, Please proceed to pay this week the outstanding amount of 35 466,65 $ to Me Kanemy on my behalf from the finds of the “Beaconsfield” sale.

Please see below Me Kanemy’s correspondence to me and balance owed. I am honouring this, even though I am disputing certain amounts of the balance due.” (our underlining) [ 37 ] This was not the first time Defendant assured Plaintiff that he would pay in full his accounts for professional services rendered. [ 38 ] He had also mentioned this in his email dated May 29, 2016 [7] , saying: “ I told you on the telephone two weeks earlier, I always pay all my debts and that I would pay you once I sold Beaconsfield since I was broke , and you said “ I know you will pay me “.

I am very well aware of the balance I owe you and I will state again clearly that I am planning to honor the payment of that balance as always .” (our underlining) [ 39 ] But in fact, Plaintiff did not receive the full payment of 35 466,63 $ owed to him. [ 40 ] Instead as per Defendant’s instructions to notary Gossett, he received a bank draft in the amount of 20 000,00 $ from notary Gossett, on or around November 3 rd 2016, which constituted only a partial payment and which reduced the balanced owed to Plaintiff to 15 466,63 $. [ 41 ] Subsequently, Defendant sent an email to Plaintiff dated November 18, 2016 [8] , informing him that he would be mailing him a check for an amount of 7 111,40 $ and explaining to Plaintiff that he disagreed with the billings he received for MHD (Me Marie-Hélène

Desaunettes) and for JMCD (James MacDonald), saying that he believed that it was not necessary to have two people in court in September 2015 and for the appeal in January 2016. [ 42 ] He says that he was unhappy with Plaintiff’s handling of his case in Court and that Plaintiff was not enough available for him. [ 43 ] He states: “ Why should I have to pay for an articling student’s training when it’s usually an office expense. I was never asked if this was okay.” You had one all the necessary research in preparation for the Casgrain trial in 2015… thus what was there to research after that ?

You have known in detail my case for over 10 years… You also knew very well how Coleman behaved in court there were no surprises there either. I am also deducting ½ of your fees from the Time slip C (March to May 2016). I told you I was very unhappy with you and I got extremely upset with you in court because of your stubborn refusal to put in evidence the City of Braconsfield’s letter. You completely disregarded and dismissed what I wanted. I also felt like a cash cow towards the end. You were often away on vacation or too busy with new clients.

Normally when a lawyer takes on too much, they pass their cases to another lawyer or they just simply do not take new cases until they are done with current cases.” [ 44 ] Plaintiff answered this email and wrote a letter of demand to Defendant on November 29, 2016 [9] asking Defendant for the payment of the balance owed to him. [ 45 ] After reviewing the proof presented, the Court his of the opinion that Plaintiff Kanemy did in fact represent Defendant Friedrich in a very difficult court case which resulted in a long 14 trial, including the preparation for said trial and which was followed by various other motions presented by the opposing lawyer acting for Mr.

Friedrich’s children. [ 46 ] Maybe Me Kanemy was not as aggressive as Me Coleman appears to have been from Defendant’s description or as Defendant Friedrich would have wanted him to be, but he did in fact do his work and obtain the required judgments for his client. [ 47 ] That Me Coleman and his client made other procedures after judge Casgrain’s judgment is also part of the legal system and is a normal situation. [ 48 ] Once you start, you never know when and how a Court case will proceed and will end. [ 49 ] Plaintiff Kanemy cannot be faulted for having other clients than Defendant Friedrich and also taking care of them. [ 50 ] Furthermore, Plaintiff Kanemy cannot be faulted because Me Coleman and his clients multiplied abusive legal procedures against Plaintiff.

This was not under his control. [ 51 ] The Court understands Defendant’s frustration after this long Court battle against his own children, but it finds no sufficient proof to sustain Defendant’s allegations that Plaitiff Kanemy did not do his job well and that he did not represent him properly. [ 52 ] Indeed the procedures presented were of “intrinsic and of frivolous nature” and abusive as were the numerous delays and legal expenses incurred by their fault and the fault of their attorney” as mentioned by both judge Casgrain and Buffoni in their respective judgments. [ 53 ] At the request of Me Kanemy, judge Casgrain did in fact award punitive damages in the amount of 10 000,00 $ in favour of Mr.

Friedrich recognizing that his children and their lawyer acted in an abusive manner. [ 54 ] The Court is of the opinion that Plaintiff Kanemy did in fact rendered the services he was mandated for as fully appears from judge Casgrain’s judgment. [ 55 ] As for Defendant’s allegation to the effect that he should not have been billed for the services rendered by MHD (Me Marie- Hélène Desaunettes), Me Kanemy’s assistant and for JMCD (James MacDonald) Me Kanemy’s articling student, the Court does not retain said argument. [ 56 ] He accepts Me Kanemy’s explanation saying that there was never double billing when they were in Court and that it costs far less to have them make part of the research and work in the file at their hourly rate rather than to bill Defendant at Plaintiff’s hourly rate. [ 57 ] Furthermore, as appears from various emails from Defendant, he was well aware that Me Desaunettes was doing work in the file [10] . [ 58 ] Consequently, the Court is of the opinion that Plaintiff’s action is well founded in fact and in law.

FOR THESE REASONS, THE COURT:

GRANTS Plaintiff’s action. CONDEMNS Defendant Karl Friedrich to pay Plaintiff Laurent R. Kanemy the amount of 8 355,23 $ with interest at the rate of 5% per year starting on May 30th 2017. CONDEMNS Defendant to pay to Plaintiff the amount of 185,00 $ representing judicial costs. __________________________________ JEAN-PIERRE ARCHAMBAULT, JCQ Date de l'audience : 22 février 2019