2017 QCCQ 1748, 2017 QCCQ 1748

Esposito c. Cerrone 2017 QCCQ 1748 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-149543-151 DATE: March 3, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ AGOSTINO ESPOSITO Plaintiff / Cross-Defendant v.

ME ROSE MARIE CERRONE Defendant / Cross-Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Further to a hearing in a family law case regarding Plaintiff’s request for reduction in alimony and increase in parental access rights, Plaintiff claims $10,000 in damages against his attorney who represented him in the matter, namely Defendant. [ 2 ] Defendant denies any liability and claims, by way of Cross-Application, payment of an outstanding invoice of $1,963.79 relating to services rendered.

Defendant also seeks damages of $360 for loss of her time resulting from Plaintiff’s claim. [ 3 ] Plaintiff’s judicial demand alleges the following grounds in support of his $10,000 claim: 1) Defendant did not plead the case; 2) Defendant did not file into the Court Record the appropriate documents; 3) Plaintiff was not satisfied with Defendant’s representation of his interests. [ 4 ] As stated, in his application to the Superior Court, Family Division, Plaintiff sought to lower his alimentary pension and to increase his rights of access to his son. [ 5 ] The judgment rendered by Justice Marc St-Pierre, J.C.S. [1] grants in part Plaintiff’s demand regarding reduction of alimony.

It also rejected his request for an increase in rights of access. [ 6 ] With regard to Plaintiff’s first grievance, it should be noted that Defendant did in fact plead the case. [ 7 ] With regard to Plaintiff’s second grievance, the parties do not agree as to the instructions received from the Plaintiff with respect to the filing of documents into Court. [ 8 ] Plaintiff wanted to produce a medical certificate to support his request for a change in venue at the point of transfer of custody of the child.

According to Defendant, she advised against filing that document as it would unfavourably affect Plaintiff’s request for additional access. Plaintiff acknowledges that Defendant did give that advice but states that he instructed her to nevertheless file the

document since his request for a change of venue for drop off of the child was paramount to him in light of his reduced mobility, as evidenced in the medical certificate. [ 9 ] At the family law hearing, the Court ruled that the request to file the document was tardy and outside the prescribed deadline.

The document was therefore not admitted into evidence and was not considered by the judge. [ 10 ] Plaintiff states that this situation occurred with several other documents, regarding income tax documents and conflict of interest issues involving the opposing counsel (Exhibit P-2). [ 11 ] Defendant denies this and states that it was difficult to get documents from Plaintiff and that documents that she did receive were in fact filed within the prescribed Court deadline.

This issue will be dealt with later regarding the adjudication of the amount claimed by Cross-Application. [ 12 ] The Plaintiff’s third grievance is that he was not satisfied with the advocacy skills of Plaintiff. [ 13 ] This is not grounds for a claim of negligence against Defendant. [ 14 ] It is well established law that the standard or intensity of the obligation of an attorney in rendering professional services is one of means, not of result. [ 15 ] J.-L. Baudouin and P.

Deslauriers in La responsabilité civile [2] wrote as follows: “Comme tout professionnel, l’avocat assume, en principe, une simple obligation de moyens et ne peut donc être tenu responsable de l’absence du résultat escompté dans la réalisation du mandat qui lui est confié. ” [ 16 ] Therefore, an attorney, especially in the context of contested litigation has no obligation to win the case. Her or his only obligation is to render services at a level that meets the standard of a normally competent attorney in the circumstances. [ 17 ] Plaintiff’s reproaches against Defendant are vague in that regard.

He is of the view that Defendant was not sufficiently persuasive at the hearing and that her voice was not sufficiently loud. In his judgment, Justice St-Pierre makes no criticism regarding the method of presentation of Plaintiff’s case. [ 18 ] He does appear to criticize the absence of the filing of the 2014 tax return by Plaintiff.

But his main criticism is directed towards Plaintiff himself regarding his lack of cooperation and transparency regarding his revenues during his cross-examination. [ 19 ] One reason of dissatisfaction not stated by Plaintiff in his testimony before the present Court was mentioned in his demand letter to Defendant. In that letter dated September 25, 2015, Plaintiff stated: “I went to several consultations [with other attorneys] and they told me I could have saved my money by representing myself.

How can I pay you when I am not happy with the trial.” [ 20 ] It appears that Plaintiff regrets not having represented himself and in so doing not saving the expenses of hiring the Defendant. [ 21 ] The undersigned is of the view that Plaintiff was much better represented by Defendant than he would have been by himself.

[ 22 ] The truth is that Plaintiff’s case was significantly affected by the previous assessments of Plaintiff’s actions and credibility made by Justice Diane Marcelin, J.C.S., in a 2010 judgment [3] and by Justice Sylviane Borenstein, J.S.C., in a 2014 judgment [4] regarding alimony and access rights. This would have been the case regardless of the attorney retained as Plaintiff’s counsel. [ 23 ] For the above reasons, Plaintiff has not established professional malpractice on the part of Defendant and his claim for $10,000 will be dismissed, without costs.

Defendant’s Cross-Application [ 24 ] Although Plaintiff’s grievances do not support a finding of professional fault on the part of Defendant, they can be taken into account regarding the Defendant’s own claim for services rendered made by way of Cross-Application. [ 25 ] Plaintiff issued previous invoices and received $1,500. She claims an additional $1,963.79 which represents an unpaid invoice dated July 3, 2015 [5] , less an amount remaining in trust ($12.80).

The amount of $1,963.79 is made up of the following amounts: - $1,632 (fees); - $87.15 (expenses); - $85.96 (GST); and - $171.49 (QST). [ 26 ] It is acknowledged that Plaintiff agreed to pay Defendant at an hourly rate of $120 [6] . [ 27 ] The Court will review the criteria to be considered regarding the obligation of an attorney to charge fair and reasonable fees as prescribed by

Article 102 of the Code of Professional Conduct of Lawyers [7] : 1) Experience : Defendant was an attorney for approximately 1 year and a half at the time of the trial in issue. She has always practiced in family law 2) Time and effort required and devoted : the time and effort required and devoted to the matter by Defendant attorney were reasonable and proportionate.

It is to be noted that various services were not charged and Defendant reduced the time charged for the hearing by 1 hour. 3) Difficulty : there was no unique difficulty pleaded by Defendant; 4) Importance of matter to client : the matter was important to Plaintiff, as is usually the case with family law matters; 5) Responsibility assumed : nothing distinct for this criterion was pleaded by Defendant; 6) Unusual or special skills : nothing distinct for this criterion was pleaded by Defendant; 7) Result obtained : Defendant considers that 50% of Plaintiff’s objective was satisfied by the judgment since the Court granted a reduction in alimony.

Plaintiff’s view is that the reduction was small and most objectives (further reduction, increased access and change of venue) were not attained.

[ 28 ] The Court considers that the result sought by Plaintiff was 30% achieved. [ 29 ] The Court also concludes that the attorney and the client share joint responsibility for the misunderstanding regarding the filing of the medical certificate and other documents. Plaintiff was not always clear in his instructions in that regard. However, it was the attorney’s responsibility to ensure that she understood completely her client’s instructions.

In light of the above, the Court reduces Defendant / Cross-Plaintiff’s fees, including taxes, by $500. [ 30 ] As such, the Defendant’s Cross-Application will be granted for $1,463.79. [ 31 ] Defendant’s additional amount claimed for loss of time will not be granted. The time involved is simply that to defend the quality of her services. That is not claimable. [ 32 ] Given the joint responsibility on some of the contested items, and the interest rate of 15% stipulated in the mandate agreement, there will be no order as to legal costs.

FOR THESE REASONS, THE COURT: DISMISSES Plaintiff Agostino Esposito’s Judicial Demand; GRANTS Defendant Me Rose Marie Cerrone’s Cross-Application in part; CONDEMNS Plaintiff Agostino Esposito to pay Defendant Rose Marie Cerrone the amount of $1,463.79 with interest at the rate of 15% per year (Exhibit D-1) starting on July 3, 2015; WITHOUT LEGAL COSTS . __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: January 10, 2017