2014 QCCQ 11499, 2014 QCCQ 11499

Jardins Daccord Ltd. c. Bakirtzian 2014 QCCQ 11499 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-135908-129 DATE: November 12, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JARDINS DACCORD LTD 3650 , boul. Pitfield Pierrefonds, Qc H8Y 3L4 Plaintiff v.

BEDROS Bakirtzian […] Massena, New York […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Jardins Daccord Ltd, also known as Claude Daccord & Associés, a firm offering services in landscape architecture, sues a former client, Mr Bedros Bakirtzian, claiming an account of $ 1,014.90 for services allegedly provided in connection with preparation for a trial. [ 2 ] The Plaintiff was engaged by Mr Bakirtzian’s attorneys on his behalf to provide the services of an expert witness, Diane Allie.

The firm prepared an expert report written by Diane Allie for which the bill was paid in full. [ 3 ] The amount in issue pertains to preparatory work Mrs Allie carried out in order to be ready to testify at the trial scheduled for November 28 to December 2, 2011. [ 4 ] The trial did not proceed because it was settled a few days before the hearing was to commence. [ 5 ] Mr Bakirtzian states in his defence that the Plaintiff should not be entitled to any fee for its review of the matter in preparation to testify: this should be part and parcel of the work involved in the expert report for which he already paid over $ 5,000.00.

He offered a small amount as a final settlement recognizing that there was some entitlement to fees for the brief meeting between Mrs Allie and his lawyer in preparation for the trial. But, beyond that, he asserts that the charges representing approximately 9.5 hours are abusive. ISSUES [ 6 ] To resolve this case, the Court must determine: 1) Is the Plaintiff entitled to a fee for its final preparation for the trial? 2) If so, what is the fair amount of the fee?

FACTS [ 7 ] The initial mandate ended when the Plaintiff presented an invoice for its expert report in the amount of $ 5,069.71 and received payment in full. The invoice was dated October 30, 2009. [ 8 ] On November 3, 2011, Mr Bakirtzian’s attorney, Me Xavier Mageau, wrote to Mrs Diane Allie and Claude Daccord & Associés, confirming que notre cliente retient vos services à l’occasion du procès opposant la Fiducie BB à Intact Inc., Pavages Farinelli Inc. et à

Robert Farinelli . [ 9 ] The letter goes on to state that during the trial Mrs Allie will listen to the testimony of different witnesses and give her own testimony, defending her expert report in order to enlighten the trial judge on the question whether the work carried out by Pavages Farinelli Inc. was carried out according to the rules of art. [ 10 ] The letter suggests a meeting to be held at the lawyer’s office in the week proceeding the trial. [ 11 ] The operative portion of the letter reads as follows: Tel qu’indiqué par monsieur Claude Daccord, votre présence sera facture au taux horaire de quatre-vingt-quinze dollars (95.00$) plus .55 cents par kilomètres parcourus.

Votre temps sera calculé à compter de votre départ de vos bureaux et inclura le retour à vos bureaux.

Vos services seront acquittés par notre cliente sur réception de votre facture. [ 12 ] Mrs Allie testifies as to additional work that she carried out beyond the strict terms of this letter, namely, she reflected upon and made certain inquiries as to one technical aspect of the file that the lawyer asked her to respond to. [ 13 ] Some emails in the file show that she had made inquiries of a technical character with a roofing expert, and that she also spoke to someone working for the design firm that had prepared the drawings for the project.

Her time sheet shows charges of 1.5 hour for a meeting with the lawyer, .75 hour for travel to the lawyer’s office, and a disbursement of 22 kilometres.

As well as charges for each email, fax and telephone call, there is approximately 6.5 hours of preparation. [ 14 ] Mr Bakirtzian questions why such an amount of time had to be spent in a file where the Plaintiff was presumably an expert and had been paid handsomely for the preparatory work that had encompassed the expert report. [ 15 ] Mr Bakirtzian testified that he was not aware of the letter confirming the mandate, which is plausible because he is not included as a recipient of the letter.

He states that he agreed to pay for testimony, not for preparation for testimony. [ 16 ] Me Xavier Mageau was not called as a witness. ANALYSIS [ 17 ] In this particular matter, the basis on which the Plaintiff could be paid for its work in preparation for and its attendance at the trial was clearly stipulated in a written agreement drafted by the lawyer and signed by the Diane Allie and Claude Daccord. [ 18 ] While the document was drafted by the lawyer, it appears that the stipulation of the fee was indicated in a conversation by Claude Daccord, the principal of the Plaintiff.

In the passage quoted above, it is clear that a fee is stipulated for “votre présence” at an hourly rate as well as travel time as well as a disbursement of .55 cents per kilometre. [ 19 ] Since the letter specifically mentions a meeting, it is reasonable to infer that presence and travel costs would include not just the trial itself but also attendance at the preparatory meeting. [ 20 ] The letter is silent as to the intention of the Plaintiff to charge a fee for several hours of preparation and various inquiries with other experts and other witnesses as well as miscellaneous correspondence. [ 21 ] From the point of view of the Plaintiff, it should be paid for all the work it carried out, because it was done in furtherance of the objective of giving the best possible testimony. [ 22 ] But, from the point of view of the client, who had paid for an expert report and who was now agreeing to pay for attendance at the trial, attendance at the meeting and travel costs, it is far from evident that he was agreeing to pay for an unbudgeted amount of preparatory time.

He was not informed as to what this might entail, nor given the option to agree or disagree. [ 23 ] Since the lawyer took the trouble of drafting a clear letter of engagement, the Plaintiff is hard pressed to assert that it should be entitled to payment for services going beyond the actual terms of that agreement, the negotiations of which it participated in and the final drafting of which it approved through the signatures of those involved. [ 24 ] While it is altogether normal for an expert witness to review the file and clear up any remaining issues that need to be addressed before confronting the courtroom situation, it is reasonable for a client who has paid a fee for an expert report to presume that this will done as part of a global fee already paid, unless he is told otherwise. [ 25 ] In the present file, it would have been a simple matter for the Plaintiff to insist upon the inclusion in the letter agreement of a fee for review of the file and trial preparation other than meeting the lawyer.

But if it had done so, it would have also been normal to provide an estimate of the number of hours it intended to spend. [ 26 ] Having provided neither an estimate nor a clear stipulation of its intention to bill for services, it should have restricted its billing to the activities falling squarely within the terms of the agreement. [ 27 ] In this case, the Plaintiff is entitled to bill for attendance at the meeting with the lawyer and the travel time, as well as the disbursement for use of a vehicle. [ 28 ] According to the time sheet, this would be 1.25 hour at $ 95.00 plus 22 kilometres at .55 cents per kilometre for a total of $ 130.85 plus GST at 5% and QST at 8.5%, for a total of $ 149.07. [ 29 ] Since the Plaintiff was only successful in a small part of the claim, there will be no award as to costs.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $ 149.07 with interest at the legal rate and the additional indemnity provided at

article 1619 of the Civil code of Québec calculated from the date of default December 9, 2011. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: November 3, 2014