2016 QCCS 5194, 2016 QCCS 5194

Leznoff c. Sand 2016 QCCS 5194 SUPerior JR1353 COURt CANADA PROVINCE of QUEBEC DISTRICT of MONTREAL N°: DATE : 500-17-079131-135 May 2, 2016 __________________________________________________________________________ presiding: the HONORABLE BRIAN RIORDAN, J.S.C. __________________________________________________________________________ AARON LEZNOFF Plaintiff v. G.

GEORGE SAND Defendant __________________________________________________________________________ judgment __________________________________________________________________________ THE PROCEEDINGS [ 1 ] Defendant is a lawyer who acted for Plaintiff (" Aaron " [1] ) in two files starting in August 2008. One file, number 500-17- 031874-084 (the " Probate File "), related to the probate of the will of Aaron's deceased wife, Françoise L'Écuyer-Robillard (" Françoise ").

The other, number 500-14-041920-086 (the " Damage Action "), related to the claim of Françoise's testamentary liquidator, Suzanne Robillard, against Aaron in revendication of certain of Françoise's assets, including some coming from the partition of the family patrimony, and in damages. Aaron's cross demand in the Damage Action amounted to some $517,500. [ 2 ] Aaron claims that Defendant committed a number of faults with respect to the quality of representation he provided in the two files. More specifically, Aaron alleges the following professional errors on Defendant's part [2] : a.

In issuing the wrong type of proceedings in the Probate File, resulting in the dismissal of the action as being abusive, futile and dilatory; b. In accepting a mandate in a file where the division of the family patrimony was a major issue without having competence in that field of the law; c. In failing to recognize his lack of competence on the question of the division of the family patrimony and failing to refer Aaron to proper counsel; d. In consulting an attorney specialized in family law without obtaining a proper legal opinion on the question of the division of the family patrimony; e.

In settling the Damage Action, Defendant failed to obtain the transfer to Aaron of the one-third interest of Françoise (the " Share ") in the apartment they had purchased together (the " Apartment "), of which Aaron owned two-thirds, and this, in spite of the fact that Aaron believed that the amount he paid in the settlement of the Damage Action (referred to as either the " Partial Agreement " or the " Settlement ": Exhibit P-3 ) was supposed to cover that; f.

In not advising Aaron that, under the rules of family patrimony, he owed Françoise's estate (the " Estate ") nothing for her Share, whereas he paid $99,500 for that in the Settlement;

g. In relying on Aaron's elderly brother (" Joe "), a retired accountant, in establishing the value of the family patrimony; h. In counselling Aaron to pay the amount of $9,957 in the Settlement with respect to the value of his executive pension plan (the " Executive Plan ") within the family patrimony, and this, in spite of the fact that such retirement plans are excluded from the family patrimony; i. In relying on an actuary for an opinion on the value of the Executive Plan, when he should have known that this plan was excluded from the family patrimony; j. In making an argument to Suzanne's attorney that, under

article 415 of the Civil Code , Aaron's RRSPs were excluded from the family patrimony; k. In counselling Aaron to contribute $10,000 to the legal costs of the Estate in the Settlement, whereas Defendant should have recommended that each party pay its own legal costs; [ 3 ] The total amount of Aaron's claim comes to $152,230, comprised of the following: IN THE DAMAGE ACTION TOTAL $133,544 a. Overpayment of the family patrimony with respect to Françoise's Share; $99,500 b. The payment of his private supplementary Executive (or high income earner’

s) pension plan to Françoise's Estate $9,957 c. Payment of the Estate's legal fees in settling the Damage Action $10,000 d. Legal fees paid to Defendant $8,403 [3] e. Legal fees paid to the family law expert $684 f. Inconvenience and mental anguish $5,000 IN THE PROBATE FILE TOTAL $18,686 f. Damages pursuant to the judgment of De Grandpré J. $5,235 g. Judicial costs pursuant to the judgment of De Grandpré J. $366 h. Loss of time, inconvenience and mental anguish $2,500 i.

Legal fees paid to Defendant $10,585 [4] GRAND TOTAL $152,230 [ 4 ] For his part, Defendant argues that any damages suffered in the Probate File stemmed from Aaron's own fault and, in any event, any claim in that regard is prescribed. With respect to the Damage Action, he denies committing any fault. [ 5 ] GENERAL BACKGROUND [ 6 ] Although they married in April of 1991, Aaron and Françoise had been a couple for some 28 years by the time she passed away on December 5, 2007. It was a second marriage for each of them.

She had three children from her first marriage (the " Heirs "), including Suzanne, who was appointed liquidator of the Estate. [ 7 ] Defendant has been a member of the Bar of Québec since 1968. He has what he describes as a general practice, centering mostly around litigation, including matrimonial litigation. The Leznoff family and their company have been clients of his for over 45 years.

In fact, through his accounting practice, Joe often referred him clients, and Defendant returned the favour towards Joe. [ 8 ] Joe was in charge of the administration of the family company, whereas Aaron was the production foreman. As such, Defendant dealt more often with Joe, and it was he who asked Defendant to represent Aaron when Suzanne instituted the Damage Action in March 2008 and effected seizures of assets included in the family patrimony.

A. - the probate file [ 9 ] On April 10, 2008, Aaron brought to Defendant a photocopy of a two-paragraph holograph will signed by Françoise and dated January 1, 2004 (the " Holograph Will "). He did not have the original. He explained that he had forgotten that both he and Françoise had signed holograph wills in 2004, each keeping their respective original but giving a photocopy to the other. He had put the folded photocopy into a book for safekeeping and forgotten about it.

Then, by chance, in April 2008 he happened to pick up that book and the photocopy fell out. [ 10 ] The contents of the Holograph Will were short and to the point: This is my last will 1) All chattels in my home at 6150 Du Boisé #L3 Montreal Qué belong to Aaron Leznoff 2) Condo at 6150 Du Boisé #L3 Montreal Qué belong (sic) to Aaron Leznoff Signature of Françoise

1/1/04 [ 11 ] The Holograph Will contradicts an earlier notarial will by which Françoise left her entire estate to the heirs, subject to Aaron's right to occupy the Apartment until his death, and named Suzanne as liquidator. "Contradicts" is too mild a word. The Holograph Will nullifies the notarial will, and all to Aaron's benefit. It is thus no great surprise that Suzanne and the other Heirs were more than sceptical of the genuineness of the Holograph Will and refused to recognize it. [ 12 ] It did not help Aaron that he did not have the original of the Holograph Will.

There was also the fact that he obsessed about providing copies of his photocopy to the Heirs. As mentioned by De Grandpré J., he refused to produce his photocopy other than before a judge. At the hearing on September 7, 2010, he finally did produce it, but his attitude on this matter, as well as on others, did not impress the judge favourably. [ 13 ] Given the disagreement over which will prevailed, Defendant instituted a "Motion for Probate of Will" on August 4, 2008 with respect to the Holograph Will, citing

article 772 of the Civil Code . This motion was met by a 45-paragraph written motion to declare the probate motion abusive and to order Aaron to pay the Estate $5,000 in legal fees, the whole pursuant to

article 54.1 and following of the Code of Civil Procedure then in force. The judge also had the 85 paragraphs of the Damage Action. Both proceedings painted a most unflattering portrait of Aaron and his attitude and behaviour with respect both to the Heirs and to Françoise. [ 14 ] The hearing on the motion to probate took place on September 7, 2010, before Justice Jean-François De Grandpré. It went very badly for Aaron. Suzanne's attorney raised

article 774 CCQ, which opens with the not-illogical words: " A will that is not produced may not be probated ". The judge, too, saw the logic in those words. [ 15 ] Defendant, however, was not without arms that day. [ 16 ]

Article 774 goes on to say " it shall be reconstituted upon an action in which the heirs, the other successors and the legatees by particular title have been summoned and unless the proof of its contents, origin and regularity is conclusive and unequivocal ".

Although Defendant admits that he had not thought of the argument beforehand, he happened to have brought along a recent judgment where the court allowed a party, at the hearing on a probate motion, to amend it into a motion in reconstitution, given that all the conditions of such a motion were met in the presentation of the motion to probate. [ 17 ] He attempted to make such an amendment that September day, but Judge De Grandpré would have none of it. [ 18 ] Rendering his judgment in French from the bench, which was later transcribed on October 1, 2010 (the " Judgment ": Exhibit P- 1 ), he reasoned that such an amendment would result in an entirely new action having no connection with the original one, since it would be subject to different procedural rules.

At the same time, he granted the Estate's motion in abuse of procedure under

article 54.1. He declared Aaron's motion to be futile and vexatious: " mal fondé, futile et abusif ", and condemned Aaron to pay $5,235 for the Estate's legal fees for the motion. [ 19 ] Aaron and Defendant were present in the courtroom at the time. Aaron states that he does not understand French and, therefore, that he did not comprehend that he had lost.

He testified before us that, in fact, when leaving the courtroom he was under the impression that he had won. [ 20 ] As far-fetched as that seems, his statement that, upon exiting the courtroom, he and Defendant each went his separate way without saying a single word to each other defies all logic and normal human behaviour. [ 21 ] Assuming, as he says, that he did not understand what De Grandpré J. said in the Judgment, can there be any doubt whatsoever that, on leaving the courtroom, Aaron would have immediately asked his counsel what had happened?

He well knew of the contents of Suzanne's motion in abuse of procedure and that she was also raising the accusations against him made in the Damage Action and asking for $5,000 in damages. How could he not have wanted to be certain about the judge's conclusions on all that as soon as possible? [ 22 ] Defendant testified that, upon exiting the courtroom, he advised Aaron of the result and that the judge took into consideration his past behaviour, for example, in obstructing Suzanne's attempts to take an inventory of Françoise's possessions left in the Apartment.

He stated that he told Aaron that the judge was very, very, angry at the fact that Aaron did not file the original photocopy of the Holograph Will. [ 23 ] He also stated that he must have told Aaron that the judge said the probate motion was abusive, frivolous and dilatory. In any event, it is simply unbelievable that Aaron would not have asked about that. A condemnation to pay $5,000 was in the balance. Admittedly, Aaron prides himself in being a wealthy man, but it is obvious that he is excessively reticent to share any of that wealth with Suzanne or the other Heirs.

It goes without saying that he would have been most anxious to know the outcome on that without delay. [ 24 ] As to whether Defendant committed a fault in the Probate File, it is clear that he did. He admitted believing that he could probate a photocopy of a will without reconstituting it. That is an error in law. On the other hand, the highly critical tone of the judge on September 7 th , as well as the condemnation to pay legal fees, were not due to any fault of his. [ 25 ] In normal circumstances, the type of procedural mistake the Defendant made would not result in a declaration of abuse of procedure.

Something else was clearly at play and what that was is easy enough to identify in light of the judge's allusion to the allegations in Suzanne's motion under

article 54.1 and in the Damage Action. The judge disapproved of Aaron's attitude towards the Estate and felt it proper to punish him for it. [ 26 ] In that light, the only damages that Defendant's error could have caused to Aaron would be in the form of moral damages and legal fees: $2,500 and $10,585, respectively. [ 27 ] The moral damages claimed are for loss of time, inconvenience and mental anguish. Given the dominant role that Aaron's own actions played in the Judgment, and considering the sorry state of his credibility, we reject this part of the claim.

[ 28 ] As for the legal fees, they are based on three invoices: a. August 15, 2008 for an amount of $750 (Exhibit P-2) ; b. December 1, 2008 for an amount of $1,749 (Exhibit P-2) ; c. May 3, 2011 for an amount of $7,868 (Exhibit P-13) . [ 29 ] Not all the amounts charged in those invoices relate to the Probate File. The charges shown in the 2011 invoice, Exhibit P-13, all refer to work in the Damage Action and its settlement. They do not seem to relate in any way to the Probate File.

As such, the proof shows legal fees of no more than $2,449 in the Probate File, and only a portion of that could be considered to be damages caused by Defendant's error. [ 30 ] That said, Aaron's claim under this heading is prescribed. [ 31 ] Since the Judgment was rendered on September 7, 2010 and the present action was instituted more than three years later, on September 26, 2013, Defendant argues that the portion of it dealing with the Probate File is prescribed in accordance with

article 2925 CCQ [5] . The Court must agree. [ 32 ] At Defendant's request, Justice De Grandpré issued a transcription of his reasons on October 1, 2010. Defendant did this in anticipation of a possible appeal. He met with Aaron and Joe on October 4, 2010 to discuss that possibility and he confirmed in writing on October 8th that they decided not to attempt an appeal (Exhibit D-3) .

Aaron states that it was only as a result of reviewing the transcription around the time of this meeting that he realized that Defendant had made the mistake and that it was, therefore, impossible in fact for him to act prior to that [6] . [ 33 ] Unfortunately, the Court cannot accept his word on this. We have earlier explained why we have no confidence in his version of the events on the day the Judgment was delivered from the bench.

Defendant's testimony to the effect that he advised Aaron of the results on September 7th not only makes more sense, which is not a particularly challenging task, but it also stands to reason. [ 34 ] Accordingly, we conclude that Aaron knew on September 7, 2010 that Defendant had not filed the proper proceeding in the circumstances. This knowledge was sufficient to start the prescription clock ticking. The prescription alarm rang on September 8, 2013, some 18 days before the present action was instituted. Consequently, the claims therein with respect to the Probate File are prescribed. b., C., D., E., F.

AND G. - the CALCULATION OF THE FAMILY PATRIMONY [ 35 ] To analyze the various allegations of fault with respect to the value of the Apartment in the family patrimony, it is first necessary to determine what that value was at the time of the dissolution of the marriage. Such a task has inspired wide-spread befuddlement in the Quebec legal community ever since the dawn of the family patrimony some twenty-five years ago. [ 36 ] Before embarking on that, let us dispose of Defendant's objection to Aaron's attempt to file a notary's legal opinion performing this calculation.

We maintain it. [ 37 ] Although correct, this document is inadmissible. It is an opinion on a common issue in Quebec law and, thus, encroaches on the judge's duty and authority. That settles the issue, but we wish to add two points. [ 38 ] The first is that, in a case dealing with the family patrimony, counsel ad litem may, and in most cases should, undertake this very exercise within the proceedings, as well as in oral argument. The value of the family patrimony is as much part of the facts of a divorce case as any other relevant element.

When doing so, moreover, there would be no requirement for the lawyer to file a prior written report, although wise counsel would likely want to include the full calculation as an allegation in his proceedings. [ 39 ] The second is that, personally, we would not necessarily interdict the filing of an expert's report on legal matters in every possible case. The law is vast and often complex. There might well be instances where it is so specialized, complicated and arcane that the average judge would have as much need for assistance in decoding it as he would were it a question of engineering or medicine [7] .

This said, the calculation of the family patrimony, a daily task before our courts and in our settlement conferences, does not fall into that category. [ 40 ] Getting now to the calculation, it is sufficient for present purposes to assume a family patrimony comprised of only the Apartment. It is first necessary to establish its gross and net values both at the time of the marriage and at its dissolution, i.e., by the death of Françoise. These figures will allow us to arrive at the increase in value of the Apartment during the marriage.

Thus, in the present circumstances, the value at the time of acquisition is irrelevant, although it is important to note that it was purchased for cash, i.e., without any hypothec. [ 41 ] Here, the following facts flow from the evidence: a. The Apartment was purchased before the marriage, in 1985; b. As the parties did not borrow to pay the purchase price, no hypothec was ever registered; c. Aaron owned 23/33 of the Apartment and Françoise 10/33 [8] ; d.

At the time of their marriage in 1991, the gross market value of the Apartment was $210,000 [9] , which was also the net value, since there was no related debt; e. At the time of Françoise's death in 2007, the gross market value was $400,000, which was also the net value;

f. There is no evidence of any amounts paid for improvements to or maintenance or preservation of the Apartment during the marriage; g. The increase in net value of the Apartment during the marriage is thus $190,000. [ 42 ] The problems encountered in calculating the value of the Apartment within the family patrimony center around the application of the deductions set out in

article 418 of the Civil Code . The first relevant part of it reads as follows: Art. 418. Une fois établie la valeur nette du patrimoine familial, on en déduit la valeur nette, au moment du mariage, du bien que l’un des époux possédait alors et qui fait

partie de ce patrimoine; Art. 418. Once the net value of the family patrimony has been established, a deduction is made from it of the net value, at the time of the marriage, of the property then owned by one of the spouses that is included in the family patrimony; [ 43 ] This step gives the increase in net value of the Apartment during the marriage, which in this case is: $400,000 - $210,000 = $190,000. [ 44 ] But

Article 418 goes on to say: On déduit également de cette valeur, dans le premier cas, la plus-value acquise, pendant le mariage, par le bien, dans la même proportion que celle qui existait, au moment du mariage, entre la valeur nette et la valeur brute du bien A further deduction from the net value is made, in the first case, of the increase in value acquired by the property during the marriage, proportionately to the ratio existing at the time of the marriage between the net value and the gross value of the property [ 45 ] The amount of this second deduction is obtained by multiplying the increase in net value ($190,000) by the quotient of the net value at marriage divided by the gross value at marriage.

The result is subtracted from the increase in net value ($190,000), as follows: $190,000 – ($190,000 x $210,000 ) = 0 $210,000) [ 46 ] As a result, the effect of the Apartment on the value of the family patrimony was zero ($0). This means that Aaron owed nothing to the Estate for the Apartment within the family patrimony, nor, for that matter, did the Estate owe anything to Aaron [10] .

On the other hand, he still owned only about two thirds of the Apartment, with the Estate owning the other third. [ 47 ] The latter point is clearly reflected in the Settlement; the former is not. [ 48 ] In this regard, it is incontestable that Defendant lacked sufficient competence in the area of the family patrimony. In none of his previous matrimonial files had he ever had to perform a detailed calculation of it, since he had always settled the issue. How a lawyer can properly settle the question of the family patrimony without first knowing the exact liability of his or her client under it is not clear.

What is clear, however, given the terms of the Settlement and his comments about "double dipping" and the like, is that many aspects of the family patrimony fell outside of his area of competence. [ 49 ] That, in itself, is not a fault. It would have been a fault had he offered advice or counsel on the point with respect to the Apartment. He did not. [ 50 ] The Damage Action is not a typical matrimonial file, since the marriage had been dissolved by Françoise's death.

The Introductory Motion is entitled "Requête en revendication de biens, en partage du patrimoine familial et en dommages-intérêts" and a large portion of it relates to Aaron's behaviour towards Françoise in her final months of life [11] . [ 51 ] Nevertheless, much of it also deals with a calculation and analysis of the liability of Aaron under the family patrimony. Suzanne's attorney includes a calculation of that within the allegations of the action, albeit an incorrect one.

She alleges that the "valeur nette du patrimoine familial partageable" of the Apartment is $348,484. [12] [ 52 ] In order to act properly in the Damage Action, it was not necessary for Defendant to be able, himself, to perform the calculation. Where he is unable to provide his own advice on a specific question, the lawyer's duty is either to withdraw from the file or, where the question is well circumscribed, as it was here, to obtain competent advice on it.

Defendant chose the second option. [ 53 ] At Aaron's behest, he engaged a lawyer specialized in family law (the " Consulting Lawyer ") who met with him, Aaron, Joe and Grace, Aaron's new wife, on March 2, 2011. True to the old French saying " jamais deux sans trois ", the Consulting Lawyer also committed an error in the calculation. He opined orally, without issuing a written opinion, that the value of the Share in the family patrimony was $175,000. [13] [ 54 ] This error was not Defendant's fault.

He had an obligation of means to obtain competent advice and he satisfied that obligation by engaging the Consulting Lawyer, a known specialist in the field. Aaron chides Defendant for not obtaining an opinion in writing from the Consulting Lawyer, but that is not necessarily a fault in a case such as this where, in effect, all they were looking for was a number. [ 55 ] Accordingly, Defendant did not commit a fault with respect to the calculation of the value of the family patrimony.

He did, however, commit a fault. [ 56 ] The Court is convinced that one of Aaron's top priorities in agreeing to negotiate a settlement of the Damage Action was to come

out at the other end with full ownership of the Apartment. Defendant cannot but have had the same conviction when, in his October 28, 2010 letter to Aaron (Exhibit P-4) , he formalized his mandate as being " to settle all outstanding issues between yourself and the Robillard Estate … for a maximum amount of $159,000 … ". [ 57 ] Of the " outstanding issues ", no one can deny that his obtaining the Share and, thereby, full ownership of the Apartment, along with the closing of the family patrimony were undoubtedly the two most important. [14] The latter issue was covered by the Settlement, albeit erroneously.

The former was not. [ 58 ] Aaron accuses Defendant of a fault for relying on his older brother, Joe, in establishing the value of the family patrimony. But that is not the role that Joe played. [ 59 ] Joe was the "good cop" in the scenario. He always got along well with Suzanne and he spoke for Aaron throughout these files.

In fact, it was Joe who finalized the Settlement during direct negotiations with Suzanne, while the lawyers for both sides were kept outside the room. [ 60 ] He used his experience and knowledge as an accountant to prepare a document that he entitled: "Estimated Value of the Subject Property for Patrimony Purposes" (Exhibit D-2) . He prepared this on his own, with no apparent input from Defendant. Although his numbers add up, they are wrong.

He had attended the meeting with the Consulting Lawyer and apparently followed that lead in assuming that the Apartment's increase in value formed part of the family patrimony. Jamais trois sans quatre ! [ 61 ] Thus, Defendant committed no fault by continuing to act in the file, or by considering Joe's calculations with respect to the family patrimony, or by the way he involved the Consulting Lawyer in the file. But he did commit a fault.

He failed in his duty of counsel. [ 62 ] Defendant appears never to have underlined to Aaron in timely and clear terms that one of his critical objectives was not met by the Settlement, i.e., that it did not settle all outstanding issues, since it did not obtain for him full ownership of the Apartment. The Court is convinced that there is no possibility that Aaron would have accepted the Settlement had he understood that.

In Defendant's own words: " Aaron was hell-bent on ensuring that the Robillard family would get nothing ". [ 63 ] It is true that a careful reading of the Partial Agreement (Exhibit P-3) would inspire a knowledgeable person at least to raise the question on his own, but the document is fairly complicated and long: seven pages. Aaron was 85 years old at the time and, although experienced as a production foreman, his forte was not the

interpretation of contracts. He looked to Defendant for that. [ 64 ] Defendant, who testified most credibly, might well have believed that Aaron understood everything when he signed the Settlement, but, when cross examined on the point, he could not refer to anything specific that he had done to ensure that with respect to the exclusion of the Share. His mention of the discussion of the topic in a Settlement Conference before a judge many months before is no answer. Nor is his statement that Aaron never told him that he did not understand.

On such an important issue, he needed to be pro- active, and at the critical moment. [ 65 ] Defendant testified that he spent between four and six hours in meetings explaining the contents of the Settlement to Aaron. His time charges indicate a meeting of three hours on March 14 th , but that appears to have centered on some of Françoise's jewellery that Aaron had recently "rediscovered", and included a trip to a gemologist's office. The rest of the meeting could not have been to review the Settlement.

The document was not received from Suzanne's attorney until the following day [15] . [ 66 ] On March 15 th , there is a five-minute charge for " reception and study of the final Agreement " and another, appearing earlier in the day's charges, for 1.50 hours, reading " To meeting with Joe and Aaron Leznoff regarding settlement ".

The only other clearly relevant charge was on March 16 th , for 15 minutes, reading: " To meeting with Aaron Leznoff regarding signing of document ". [ 67 ] The 1.50-hour entry talks only of "settlement", without reference to the presence or study of a document, whereas the other two charges refer specifically to either the "final Agreement" or a "document".

This would tend to indicate that they did not have the final draft of the Partial Agreement in front of them on March 15th and, thus, that Defendant and Aaron spent very little time together reviewing it. [ 68 ] On the other hand, Defendant did state that he was sure that he showed Joe and Aaron a draft, although he could not say whether Aaron read it.

He added that he read some passages out loud, but that most of the conversation at that time was with Joe. [ 69 ] We also note that there is no writing from Defendant clearly informing Aaron of the exclusion of the Share from the Settlement, a precaution that would not have been excessive in the circumstances. Defendant stated that, when he signed the Settlement Agreement, Aaron understood that they could not make any headway on the purchase of the Share, since the Estate wanted a separate amount for that from what was owed under the family patrimony.

When asked if there was any letter confirming that, he pointed to his letter of the previous October, some five months earlier: Exhibit P-4. [ 70 ] That letter does not meet this purpose. In fact, it tends to support the opposite conclusion, i.e., the need to warn Aaron in the event that all outstanding issues between him and the Estate were not settled. Defendant's decision to describe his mandate in that letter was prudent, proper and professional.

It would have been in his client's interest, and his own, to have applied the same standards to warn Aaron of the gap in the Settlement in March of the following year. That he did not does not assist him here. [ 71 ] As for the role played by Joe, it is no defence to say that he was Aaron's eyes and ears. Whether or not Joe understood that the Share was excluded, and the answer to that is not clear [16] , Aaron was the client. He was the one paying the settlement amount. He was the one who would have to live with the results.

He was the one whom Defendant had the duty to inform in clear terms that he would not be achieving one of his principal objectives under the Settlement. The evidence does not show that this was done. [ 72 ] On the issue of the duty of counsel, Plaintiff refers to the Court of Appeal decision in Labrie v. Tremblay [17] . There Justice Dussault provides an excellent framework for understanding one of its key elements:

34. Il m'apparaît utile de préciser que le devoir de conseil existe en tout temps, peu importe la spécificité du mandat confié. Comme le souligne l'auteur précité, les tribunaux n'hésitent pas à "condamner l'attitude d'un procureur qui s'est contenté d'exécuter son mandat sans avertir son client de problèmes particuliers pour son client".

Même si le client exprime le désir de régler à l'amiable, l'avocat a le devoir de l'informer de l'ensemble de ses droits et de lui indiquer toute action susceptible d'assurer leur sauvegarde. [ 73 ] Defendant failed in this duty and, to the extent that this fault caused damages to Aaron, he owes him compensation. What then, if any, are the damages caused by this fault? [ 74 ] To answer that, it is necessary for the Court to rule on whether or not Aaron would have signed the Settlement had he realized the consequences.

The answer is a resounding "No". [ 75 ] As alluded to earlier, there was no love lost between him and the Heirs. While he was willing to pay up to $159,000 to get them out of his life forever [18] , there is no way that he would have agreed to pay over three quarters of that amount knowing that they would remain very much part of his life through the continuing Damage Action and, more importantly, that he would fail to obtain outright ownership of the Apartment. [ 76 ] The causal link is thus established.

It remains to determine the amount of damages, starting with the claim for $99,500 relating to the Apartment. [ 77 ] We have earlier ruled that this amount related to an invalid claim by the Heirs and that the error in this regard was not attributable to Defendant. But that is beside the point. This payment would never have been made had Defendant counselled Aaron properly. It was that fault that caused Aaron to agree in error to pay $99,500 under the Settlement.

Consequently, we shall condemn Defendant to pay that amount by this judgment. [ 78 ] As for Aaron's claim for the reimbursement of Defendant's legal fees, most of these relate to the negotiation of the Settlement. Had it aborted at the last minute because of the refusal to include the Share, which is the most likely scenario, Defendant's time would have already been spent and his fees would, therefore, have been justified and payable. [ 79 ] There is thus no causal link between the fault and the vast majority of Defendant's legal fees.

Accordingly, we refuse that part of the claim. [ 80 ] As for the Consulting Lawyer's legal fees of $684, we have already held that Defendant committed no fault on this point. Accordingly, we refuse that part of the claim. [ 81 ] Aaron's claim of $5,000 for inconvenience and mental anguish relates especially to the issue of the Apartment, so it is appropriate to deal with it here. [ 82 ] He testified that his confrontation with the Heirs has caused him great concern and anxiety.

He stated that he has had to consult a psychiatrist as a result, though he provided no detail of frequency, cost or, for that matter, actual consultations. Nevertheless, the amount claimed is minimal and it is undeniable that prolonging this battle represents an emotional millstone around the neck of everyone involved. [ 83 ] Surely, the realization that " all outstanding issues " were, in fact, not resolved after he had paid $124,000 to the Heirs must have caused Aaron immense frustration, anger and, yes, mental anguish. Moreover, the page still cannot be turned.

The Damage Action is not closed. [ 84 ] In these circumstances, the somewhat symbolic sum of $5,000 is a reasonable amount of compensation for that, and we shall condemn Defendant to pay that amount by this judgment. H. AND i. - the executive pension plan [ 85 ] At the outset, we wish to clarify one aspect. If the Executive Plan were, in fact, included in the family patrimony, then, whether or not Aaron would have signed the Settlement had he been properly advised, we would not have granted him damages for having made a payment in regard to it.

There might be circumstances where paying an amount that is actually due could cause damages to a party, but none come easily to mind. [ 86 ] This said, the amount paid was not due. [ 87 ] Although most pension plans and retirement funds are included in the family patrimony, there are exceptions. Aaron alleges that the Executive Plan falls into one of those exceptions.

Defendant, on the other hand, must have felt that this plan formed part of the family patrimony, since he advised Aaron to pay $9,957 for it in the Settlement. [ 88 ] It is Aaron who is correct on this point. [ 89 ] In a wonderfully clear and complete analysis of this very technical issue, Justice Nicole Morneau held that only the retirement plans mentioned in

article 415 of the Civil Code form part of the family patrimony: [77] Le Code civil du Québec s'abstient de définir l'expression « régime de retraite ». Il limite toutefois la portée de cette expression en identifiant les contrats qu'elle veut couvrir. Ainsi, seuls ceux mentionnés à l'

article 415 C.c.Q. font

partie du patrimoine familiale. […] ( References omitted ) [19] [ 90 ]

Article 415 specifically mentions retirement plans (" regimes de retraite ") that are " governed by the Supplemental Pension Plans Act [20] " . In fact, until 2001, the Executive Plan was governed by the SPPA. In February of that year, however, its status changed. [ 91 ] By a ruling dated February 2, 2001 (Exhibit P-22) , the Régie des rentes du Québec struck the registration of the Pension Plan

under the SPPA, with the exception of articles 6, 64, 107, the first paragraph of 110 and 171.1.

Article 2.1 of the SPPA is relevant in this regard and reads as follows: 2.1. This Act, except sections 6, 64 and 107, the first paragraph of

section 110 and

section 171.1, which apply with the necessary modifications, does not apply to a pension plan if (1) all the members of the pension plan are persons connected with the employer within the meaning of subsection 3 of

section 8500 of the Income Tax Regulations (Consolidated Regulations of Canada, 1978,

chapter 945) and membership in the plan is optional and is restricted to those persons; (The Court's underlining) [ 92 ] The actuary in charge of the plan testified that, although those five sections of the SPPA continued to apply to it, the Executive Plan was not otherwise subject to or governed by that law as of the date of that ruling. As a result, pursuant to

article 415 CCQ, the Executive Plan does not form part of the family patrimony. [ 93 ] As with the inclusion of the Share, Defendant did not have the requisite knowledge to counsel on the status of the Executive Plan. He did not seek the assistance of the Consulting Lawyer on this point, but he did consult the company's actuary, who is neither a lawyer nor a specialist on the family patrimony. The actuary could, and apparently did, give advice on the status of the Executive Plan under the SPPA and the Income Tax Act, but that was as far as he could go.

He could not opine on questions dealing with the family patrimony. [ 94 ] Given his confusion on the point, on March 10, 2011 Defendant telephoned a Mme. Dupont at the Régie des rentes du Québec, who included an in-house lawyer in on the conversation. Defendant testified that his objective was to determine whether the rights under the Executive Plan were transmissible to the heirs or, rather, were intuitu personae . He stated that the result was, in his words, " inconclusive ". [ 95 ] It is also relevant to note that at no point did he ever consult a copy of the constitutive documents of the Executive Plan.

He asked the actuary for that, but only received a "résumé" of it. [ 96 ] Nevertheless, in spite of this total uncertainty, he advised his client that he owed the family patrimony $9,957 with respect to the Executive Plan. He testified that it was a small price to pay in order to avoid the cost and consequences of the trial in the Damage Action. [ 97 ] Defendant was rightly concerned about the outcome of that trial, especially given that Suzanne was adding another motion for abuse of procedure, to be heard at the same time.

He warned Aaron in clear terms about the likely disastrous consequences of proceeding to a hearing and judgment. That, however, was as far as his authority went. [ 98 ] It was up to the client to decide to pay this "small price" or not and, when making that decision, he had the right to be advised in a competent manner as to his actual liability for the payment. He did not receive that advice. This is a fault that caused damages to Aaron in the amount of $9,957.

We shall condemn him to pay that amount by this judgment. j. - ALLEGATION AS TO THE EXCLUSION OF Aaron's rrsp [ 99 ] In a letter dated December 13, 2011 to Suzanne's new attorney (Exhibit P-7) , Defendant writes: " It is the undersigned's contention that my client's RRSPs are excluded in light of

article 415 C.C.Q., and as such your client is not entitled to any division of same ". Defendant's statement in the letter, and his justification for it, are wrong in law. [ 100 ] Aaron's RRSPs do not correspond to the type of retirement plan excluded under the third paragraph of

article 415, as Defendant asserted at trial. They, therefore, do form part of the family patrimony. That said, no damages of any sort were caused to Aaron by this misconception.

In fact, had Defendant succeeded in excluding the amount in question, it would have constituted a windfall to Aaron, albeit an unjust one. [ 101 ] Accordingly, this part of the claim is unfounded and, in any event, no amount of damages is associated with this allegation, so the question is moot. k. - $10,000 contribution for legal costs in the damage Action [ 102 ] As mentioned, Joe finalized the Settlement directly with Suzanne, to the exclusion of the lawyers for both sides.

Defendant's uncontradicted testimony is that, upon announcing the final terms to Aaron and Defendant, Joe stated: " I gave her ten thousand " for legal fees. Throwing in a final "sweetener" to cement a settlement is often done, and it makes good sense. Moreover, there is no indication in the proof that Aaron objected in any way to that. [ 103 ] Nevertheless, this payment would not have been made had Aaron refused the Settlement, which we find he would have done but for Defendant's failure to counsel. That fault caused Aaron to pay this $10,000 unnecessarily.

The Court will condemn Defendant to pay that amount by this judgment.

SUMMARY [ 104 ] The Court finds that Defendant committed two faults leading to liability in this matter, one in failing to advise his client adequately that under the Settlement he did not acquire the Share, and the other in including the value of the Executive Plan in the family patrimony. The resulting damages are the following:

a. With respect to the Share $99,500 b. With respect to the Executive Plan $9,957 c. With respect to the contribution to the Estate's legal fees in the Settlement $10,000 d. For inconvenience and mental anguish $5,000 TOTAL $124,457 [ 105 ] We shall condemn Defendant to pay this amount to Aaron and dismiss Aaron's claim with respect to the Probate File.

BASED ON THESE REASONS, the court: [106] Grants, in part, Plaintiff's action; [107] condemns Defendant to pay to Plaintiff the sum of $124,457, with interest and the legal indemnity from the date of service of the action; [108] the whole with legal costs, but excluding any expert's fees. _____________________________ BRIAN RIORDAN, J.S.C. Mtres. Martin J. Sklar and Daniel Sklar Attorneys for Plaintiff Mtre. Michael Kay Attorney for Defendant Hearing Dates: April 14, 15 and 18, 2016