2017 QCCQ 8339, 2017 QCCQ 8339

Barbar c. Vayghan 2017 QCCQ 8339 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147571-154 DATE: July 10, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MYRNA BARBAR, Plaintiff/Cross-Defendant v.

ZEINAB ABDOLAHI VAYGHAN, Defendant/Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized with an action by an attorney against a former client for payment of fees and disbursements representing 50% of an account issued by the firm in which the attorney formerly worked. [ 2 ] The Plaintiff Myrna Barbar, at the time of the events, was working within a firm known as “Pepper et Associés”, the principal of which was attorney John T.

Pepper, Jr. [ 3 ] It is not disputed that the during the association of Maître Barbar and Maître Pepper, Maître Barbar would provide services to clients of the firm and share 50% in the fees generated. The accounts would be prepared by Maître Barbar but issued on the letterhead of the firm Pepper et Associés. [ 4 ] In the present matter, Maître Barbar alleged that when the account was issued it remained unpaid.

She issued a letter of demand initially for the full amount of the account but in her claim in the Small Claims Divisions limited the amount to the 50% share in a manner consistent with her agreement with her former associate. [ 5 ] The client, the Defendant, Zeinab Abdolahi Vayghan, asserted in her defense that she had settled the account with the firm, that is to say with Maître John T.

Pepper, Jr., for a lump sum of $4,000 and that this payment liberated her from any obligation to Maître Barbar. [ 6 ] Part way through the hearing of the case on May 16, 2016, the Defendant obtained leave from the Court to amend her claim to add a cross-demand against Maître Barbar for $15,000 based on the alleged abuse inherent in the claim brought by Maître Barbar. [ 7 ] After hearing the evidence of the parties, the Court continued the case given that Maître Barbar had been taken by surprise by the cross-demand and the hearing resumed before the undersigned on May 1, 2017. [ 8 ] Unexpectedly, when the Court reconvened, Maître Barbar informed the Court that she was discontinuing her action for unpaid fees and the Court continued with the cross-demand only. [ 9 ] The sudden discontinuance was not a factor that initially brought the Defendant to bring a cross-demand, rather it was her conviction that, having settled the matter, she should not have been subjected to a claim and a trial, and that it was inappropriate for Maître Barbar to use the pressure of a claim against her to pressure her former partner to settle her claims against him while all along knowing that she, Ms.

Vayghan, had in fact settled and paid.

Maître Barbar admitted at the outset of the hearing held on May 16, 2016, that this payment had been made. [ 10 ] While it would appear from statements made by Maître Pepper and Maître Barbar that they no longer have an outstanding conflict about their fee-sharing arrangement, it was also quite clear that, at an earlier time, from the time Maître Barbar left the firm, such a conflict had existed. [ 11 ] The Court is therefore called upon to consider whether the action for unpaid fees taken by Maître Barbar and/or its continuation up and until the discontinuance constituted a procedural abuse toward Ms.

Vayghan and, if so, whether this caused a prejudice to Ms.

Vayghan and, if that was the case, to determine the amount of the prejudice. [ 12 ] Ms. Vayghan articulates her cross-demand in a series of allegations narrated over many pages but it can be summarized in the following main points: 1. It was abusive for Maître Barbar to send letters, email communications, a letter of demand and a lawsuit knowing that Ms. Vayghan had always paid her accounts, including the fact that she settled the account that is the object of this litigation. She is in fact taking advantage of Ms. Vayghan to fight with her former partner over the legal fees. 2.

If Maître Barbar wished to prove that she had not received her fair share of the amounts received by Maître Pepper, she could have sued Maître Pepper and called Ms. Vayghan as a witness to establish proof of that. It was wrong for her to try to obtain this testimony by suing Ms. Vayghan rather than simply asking her to testify in such proceedings. 3. Maître Barbar did so because Ms. Vayghan is a weaker party, less experienced and more vulnerable than Maître Barbar’s more formidable opponent, her former partner and a person in authority, Maître Pepper. 4.

It was wrong of Maître Barbar to put her own interests ahead of those of her former client in the furtherance of this dispute. 5.

The proceedings and the necessity of defending them caused stress, inconvenience and this should be compensated with an award of damages. [ 13 ] Maître Barbar raised several points in contestation, her main objection being that the file was settled without her consent and behind her back, and that she did not even receive her 50% of the settlement. [ 14 ] To a large extent, Maître Barbar’s narrative is that of her conflict with Maître Pepper, though it did come out that she developed quite a conflict with Ms.

Vayghan at the point where the latter tried to negotiate her fees downward, there having been a meeting where there was a very heated argument. [ 15 ] The facts reduced to their essence are as follows. [ 16 ] Ms. Vayghan had several matters being handled by Maître Pepper when one of these matters was delegated to Maître Barbar, namely an action where Ms. Vayghan represented her father in a claim against Ms.

Vayghan’s ex-husband over an unpaid loan. [ 17 ] Maître Pepper had started the proceedings in the matter, including a Seizure before Judgment, but at one point he preferred delegating the matter to Maître Barbar, with whom he had an association consisting of a 50-50 sharing of fees. [ 18 ] It is not an issue that Me Barbar had the authority to enter into a Mandate Agreement binding on Maître Pepper, referred to as Pepper and Associates as well, and she did so on September 13, 2012 (P-1). [ 19 ] The Mandate Agreement signed by Maître Barbar and by Zeinab Vayghan sets out the monetary terms of the mandate with reference to the case number, after the following introductory paragraph: I, the undersigned, Zeinab Vayghan, (hereinafter referred to as the “Client”) hereby grant to Pepper and Associates / Me Myrna Barbar (hereinafter referred to collectively as the “Attorney”) the mandate to represent the Client in the following matter: […] [ 20 ] It is not necessary to speak in detail about the work Maître Barbar carried out except to state that Ms.

Vayghan was not entirely happy with the work accomplished and that she contested the account dated November 27, 2012. The account is based on 20.7 hours at $400 per hour: $8,280, plus some disbursements and taxes, for a grand total of $9,613.64. [ 21 ] Ms.

Vayghan engaged in discussions both with Maître Barbar and with Maître Pepper in order to settle the matter and she did in fact achieve a settlement in the sense that Maître Pepper accepted to reduce the account to $4,000 claiming that Maître Barbar had agreed to this. [ 22 ] There is, in the midst of these negotiations, evidence of consent given by Maître Barbar in principle to a settlement of $4,000, but she claims that this was without prejudice and that she did not finalize such an intention and decided to inform Maître Pepper that he could do whatever he wanted, but that she would claim her 50% share. [ 23 ] This apparently occurred at and after the meeting that was held between Maître Barbar and Ms.

Vayghan, at which there was a heated argument. [ 24 ] Maître Barbar wrote to Maître Pepper, without a copy to Ms. Vayghan, an email dated April 9, 2013 at 21:01: John, J’ai rencontré Mme Vayghan vendredi le 29 mars 2013 à mon bureau. La rencontre a duré 3 heures. J’ai pris le temps de l’écouté [sic] et enduré son « chialage » constant. Sans aucune admission, j’ai accepté de réduire le dernier relevé impayé du mois de novembre 2012, a 4000$ et ce dans le seul et unique but d’éviter des procédures en recouvrement contre elle et son père. Aujourd’hui elle est venue me voir.

Elle voulait encore réduire et me payer seulement 2000$ sur un relevé qui dépasse 9000$. J’ai refusé. Je lui ai demandé de cesser de me faire perdre mon temps et je lui a poliment demandé de quitter. Elle a refusé. Elle a insisté à me payer seulement 2000$. Son ton s’est levé, elle a fait une scène, elle a crié, elle s’est plaint que son dossier a coûté beaucoup

d’argent… pour terminer en me disant « Well I will speak to John about this » et je lui ai répondu, « Speak to John, do whatever you want ». Je réitère mon refus d’accepter 2000$ en règlement de son relevé. Elle a épuisé ma patience. Les honoraires sont dus, point final. Maintenant, si elle veut régler, je n’accepterai aucune somme moindre que celle qui m’est due sur le relevé. Si tu veux réduire ta part, c’est ton choix. Moi, j’en ai assez de réduire. Je suis persuadée qu’elle va communiquer avec toi car selon ses dires tu es un très bon ami à elle.

Tu peux l’informer si le relevé n’est pas payé d’ici vendredi le 12 avril 2013, dès lundi le 15 avril, j’intenterai les procédures judiciaires appropriées contre elle et son père. Je n’aurai accès à mes courriels pour les 3 prochains jours qu’après 17h00 étant en procès. (CP-9) [ 25 ] Ms.

Vayghan admits that she had tried to have Maître Barbar agree to a settlement for less than $4,000 but she believed that when the meeting was over, Maître Barbar had agreed to a settlement of $4,000 of which she would be receiving $2,000. [ 26 ] She did eventually conclude such an agreement with Maître Pepper and the Court accepts her testimony that she remitted $4,000 to Maître Pepper in a meeting held around that time. [ 27 ] Maître Pepper did not tell her that he would not remit to Maître Barbar her share of this settlement and it came out later, when he was confronted by Ms.

Vayghan about this, that he had in fact never given any money to Maître Barbar in relation to this account. [ 28 ] What he told the Court was slightly different: he said that his recollection is that he settled the matter for $4,000, believed that Maître Barbar had already received $2,000 at an earlier stage of the file and only asked Ms. Vayghan to pay $2,000 to bring the total up to $4,000. [ 29 ] Maître Barbar denies having received $2,000 and she states that an amount of $2,000 that she did receive from Ms.

Vayghan was the payment on an earlier account. [ 30 ] Maître Pepper’s testimony was not credible on this issue. Overall, his memory of the events was sketchy and he was not able to refresh his memory by referring to any accounting documents nor did he issue a receipt when he received funds from Ms. Vayghan. [ 31 ] The Court prefers the testimony of Ms. Vayghan that she had not paid anything towards the account to Maître Barbar when she settled it for $4,000 and remitted that sum to Maître Pepper. [ 32 ] The Court presumes that Maître Barbar would have issued a receipt if she had received money.

She would not have sent a letter of demand that did not admit receipt of this amount if in fact she had received it. [ 33 ] When Ms. Vayghan realized, after having received a letter of demand for amounts in the neighbourhood of $9,000, that Maître Barbar was alleging that she had not received anything on account of the settlement made, she confronted Maître Pepper and attempted to obtain from him a “Release Note”. [ 34 ] At first Maître Pepper refused to give this but he eventually acquiesced under a great deal of pressure and he issued the following text signed by Pepper et Associés, with witnesses, and by Ms.

Vayghan: Release The present releases Zeinab Abdolahi Vayghan from all financial obligations due in relation to court file number 500-17-069362-113, 500-12-313108-122 for an amount equivalent to 4,000$ as agreed to by Me Barbar in final settlement of the account dated November 27, 2012. (CP-5) [ 35 ] When Ms. Vayghan finally received this document on July 7, 2015, Maître Barbar had already sent the letter of demand and had initiated the claim in the Small Claims Division and Maître Pepper had, unbeknownst to Ms.

Vayghan, filed a perfunctory defense on her behalf with a member of his firm actually signing on her behalf. [ 36 ] The text of the Defense reads: No money is owing to Me Barbar. Her bill was exaggerated and all has been paid. Montreal, July 3 rd , 2015 (CP-3) [ 37 ] Ms. Vayghan was extremely angry when she learned this document had been deposited, taking the position that her signature had been forged and that she had never agreed to this step (CP-4). [ 38 ] Her complaint to Maître Pepper was that there should have never been a lawsuit, that she did not agree to be involved in a

lawsuit, and that he should have intervened in order to make sure that the lawsuit would not proceed as opposed to intervening to defend her.

When she finally obtained the Release document during that meeting, she went to see Maître Barbar to show it to her and, at that point, Maître Barbar refused to acknowledge it as a release binding on her. [ 39 ] As opposed to having the benefit of Maître Pepper’s “intervention” as a witness to confirm the settlement, she would have preferred that he either settle the matter directly with Maître Barbar or provide her with the funds necessary to remit them to Maître Barbar in settlement of her share.

She expected there to be no legal proceedings in which she was a party. [ 40 ] Maître Pepper insists on referring to his gestures in the file as an “intervention”. Neither his testimony nor the filing by his firm of a defense could be considered an intervention as that term is defined in civil procedure. The Court explained to Ms.

Vayghan that she could have forced his intervention by having him impleaded as a party in the case to indemnify her if in fact she did owe anything to Maître Barbar. [ 41 ] This forced intervention would have been the means of enforcing Maître Pepper’s promise to intervene to hold her harmless from Maître Barbar’s claim. [ 42 ] The singularly surprising fact is that, while Maître Barbar had tried to convince the Court in May 2016 that she was not bound by the payment that she believed her former client had made to Maître Pepper, her position on May 1, 2017 was that she was now informed, for the first time, by speaking to Maître Pepper, that he had in fact received the payment and that therefore her client should be considered released.

She stated this as the reason for her discontinuance. Confronted by the Court with this incoherence, she said that she had discontinued her demand because she wanted to “buy peace” and to put the matter to an end. [ 43 ] This is entirely incoherent and illogical because she informed the Court on an earlier occasion that, while she believed her client had made the payment, she did not feel bound by it. ANALYSIS [ 44 ] The discontinuance deprives the Court of its jurisdiction to actually decide whether the payment made by Ms.

Vayghan to the ostensible creditor, Maître Pepper, released her from any and all obligations to the firm and to Maître Barbar. [ 45 ] It is necessary, however, in evaluating whether Maître Barbar’s action is abusive, to consider the issues of that case. [ 46 ] When Maître Barbar spoke to the Court about her claim at the first hearing, it was clear that she did not disbelieve her client’s assertion of the payment of $4,000. Her reason for continuing to claim money from her client was based on the concept that she was not bound by a settlement that she did not agree to given that she was a party to the mandate.

She could therefore sue her client for her share of the bill which she had not agreed to reduce. [ 47 ] The factual issue as to whether she had agreed to the reduction and to the settlement would have only been possible to decide on a complete trial of the facts and the legal issue as to payment to the ostensible creditor was not necessarily doomed to fail: it would have depended upon the Court’s perception of the sincerity of Ms.

Vayghan, who asserts that she believed that in making this payment she was settling both the amounts she owed to the Pepper firm and the share of the fees that was ostensibly owing to Maître Barbar. [ 48 ] Therefore, the lawsuit against Ms. Vayghan, although it was an unfortunate example of attorneys mismanaging both a lawyer- client relationship and their own business relationship, was not necessarily devoid of all possible legal validity. [ 49 ] The decision to discontinue, however, shows that the entire exercise, in retrospect, was futile.

Whereas the purpose of the trial, ostensibly, was not to contest the payment itself but to challenge the legal consequences of the payment, the decision to discontinue the action was voiced in terms of the conviction, newly acquired, that the payment had in fact been made. [ 50 ] To show this degree of incoherence is not proper on the part of a sophisticated plaintiff, such as an attorney. It may be tolerable for unsophisticated parties who are before the Court in Small Claims matters to make allegations and adopt legal theories that are incoherent. This is part of the social contract expressed in a

summary judicial process that prohibits representation of parties by lawyers.

But, it would seem to the Court that it is vexatious for an attorney having professional and deontological obligations towards a client to subject her to a trial on the basis of such an incoherent approach. [ 51 ] The Cross-Plaintiff alleges that this entire exercise in futility was a way for Maître Barbar to put pressure on Maître Pepper in the resolution of her disputes with him. [ 52 ] Maître Pepper had said to her on one occasion that if Maître Barbar sued him for her share of the settlement, he would countersue her for $50,000 based on the state of affairs between them with respect this and other files. [ 53 ] It is unclear to the Court whether Maître Pepper said this merely to impress his former client or whether he would have in fact pursued such a claim.

It seems uncertain to the Court that the lawsuit against Ms. Vayghan would have really been an effective pressure against Maître Pepper in an ongoing conflict but it is understandable that Ms.

Vayghan sees it that way. [ 54 ] It is true that she has become caught up in a conflict between two attorneys that has nothing to do with her directly and that the lawsuit against her was an exercise in futility, both from the point of view of having an impact on that conflict and from the point of view of her involvement as a solution to the dilemma that Maître Barbar was facing in her conflict with Maître Pepper. [ 55 ] In a circumstance where Maître Barbar had in fact succeeded against Ms.

Vayghan, the latter would have had no choice but to either accept the loss or try to recover an indemnity against Maître Pepper. Compelling her to testify to defend herself, to bring forward her documentary evidence and the testimony of her fiancé, who was present at a meeting with Maître Pepper, was an inconvenience that

she should not have had to go through if the issue was simply the one that Maître Barbar identified as the reason for her discontinuance: the proof that Maître Pepper had received payment. This is something she could have determined with Maître Pepper, who would have certainly admitted to her that he had received her payment. [ 56 ] Maître Barbar could have also, as Ms. Vayghan suggested, sued Maître Pepper for the recovery of her share of the fees alleging that he had received them and relied upon Ms. Vayghan as a witness in order to prove that she had made the payment, a fact which she herself stated she believed during the opening of the trial in May 2016. [ 57 ]

Article 51 of the Code of Civil Procedure reads: 51. The courts may, at any time, on an application and even on their own initiative, declare that a judicial application or a pleading is abusive. Regardless of intent, the abuse of procedure may consist in a judicial application or pleading that is clearly unfounded, frivolous or intended to delay or in conduct that is vexatious or quarrelsome.

It may also consist in a use of procedure that is excessive or unreasonable or that causes prejudice to another person, or attempts to defeat the ends of justice, particularly if it operates to restrict another person’s freedom of expression in public debate. [1] [ 58 ] On the whole, the Court comes to the conclusion that the lawsuit against Ms. Vayghan was vexatious in that it had no clear purpose and no coherent theory and that it constituted an inconvenience that was unnecessary and avoidable. [ 59 ] The amount of $15,000 claimed is more than what is necessary to compensate Ms.

Vayghan for the inconvenience and stress she suffered although the Court understands her desire to claim as much as she can.

This is frequently the case in the Small Claims setting. [ 60 ] In the Court’s view, her preparation of a defense, as opposed to the cross-demand, and her time in court, as well as the stress and feelings of uncertainty, would be adequately compensated by the sum of $2,500. [ 61 ] The Court wishes to clarify that this award of damages relates only to the vexatious nature of the legal proceedings brought by Maître Barbar, as heralded by the letter of demand. [ 62 ] The Court does not express an opinion on the complaints Ms.

Vayghan made throughout the process as to Maître Pepper’s conduct, since the latter was not a party to the proceedings. BY THESE REASONS, THE COURT: TAKES NOTICE of the discontinuance of the claim of the Plaintiff, Myrna Barbar; CONDEMNS the Cross-Defendant Myrna Barbar to pay to the Defendant/Cross-Plaintiff Zeinab Abdolahi Vayghan, the sum of $2,500 , together with interest at the legal rate and the additional indemnity provided in

Article 1619 of the Civil Code of Quebec , calculated from the date of the modification of the proceedings to add the cross-demand, May 16, 2016. THE WHOLE with judicial costs in the amount of $359 for the Court stamp. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: May 16, 2016 & May 1, 2017