Grewal v. Singleton Urquhart LLP., 2015 BCSC 1493

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Grewal v. Singleton Urquhart LLP., 2015 BCSC 1493 Date: 20150702 Docket: S164711 Registry: New Westminster In the Matter of the Legal Profession Act , S.B.C. 1998, c. 9, s. 70 Between: Harbans Singh Grewal Client And Singleton Urquhart LLP, Stewart & Company Barristers and Solicitors, Derek A. Brindle Q.C., David G. Perry, John R. Singleton Q.C., Jeff Hand, Corneliu Peana, Michael Peraya Solicitors Before: The Honourable Madam Justice Gropper Oral Ruling Appearing on his own behalf: H.S. Grewal Counsel for Stewart & Company Barristers and Solicitors: D.G.

Perry Counsel for Singleton Urquhart LLP, Derek A. Brindle Q.C., David G. Perry, John R. Singleton Q.C., Jeff Hand, Corneliu Peana and Michael Peraya: E.P. Guevara Place and Date of Hearing: New Westminster, B.C. June 26, 2015 Place and Date of Judgment: New Westminster, B.C. July 2, 2015 [ 1 ] THE COURT: Mr. Grewal, the client, seeks the court's leave that all accounts rendered by Singleton Urquhart LLP and Stewart & Company Barristers and Solicitors, the lawyers, be reviewed by the registrar in accordance with the Legal Profession Act , S.B.C. 1998, c. 9, s.70 [the Act ]. [ 2 ] Mr.

Grewal took out an appointment for that purpose on October 17, 2014. On October 23, 2014 Master Keighley found that Mr. Grewal's appointment was vague in respect of which accounts he wished to have reviewed and directed him to provide details of each account for which he sought review. [ 3 ] Mr. Grewal provided the details to the other parties in an email in November 2014. He said that he wished that all the accounts rendered by both firms to be reviewed. In response to receipt of those details, the lawyers maintain that Mr.

Grewal has not complied with the time limits prescribed in the Act and his seeking a review of all accounts is statute barred. Background [ 4 ] Mr. Grewal retained Singleton Urquhart, in particular Mr. Derek Brindle, to represent him in litigation against his brother involving a property dispute. There was a large amount of property in issue, which included residential, commercial and farm property. [ 5 ] Mr. Grewal signed a retainer letter on June 19, 2008, and it provided in para. 1 “Scope of Engagement” that the firm (i.e.

Singleton Urquhart) was authorized to provide legal services and take such steps in relation to the matter, as Singleton Urquhart considered appropriate on Mr. Grewal's behalf. I refer to those paragraphs that are relevant to my consideration: [ 6 ] Paragraph 2 “Lawyers and Support Staff” states: Our firm has available to provide legal services on your behalf, an experienced team made up of legal assistants, and junior, intermediate

and senior counsel. While the writer will retain principal conduct of this matter, we propose to utilise other members of our firm to perform various elements of those legal services when this becomes appropriate. With your consent, another member other than the writer may assume principal conduct of this matter. [ 7 ] Paragraph 3 "Fees" states: The factors upon which our fees will be based, include the following: (

a) our hourly fee rates, in effect from time to time; (

b) the complexity of the matter and the difficulty or novelty of the issues involved; (

c) the skill, special knowledge and responsibility required of the lawyer or paralegal; (

d) the amount involved in the matter; (

e) the time reasonably expended in providing legal services in the matter; (

f) the conduct of any party that tended to shorten or unnecessarily lengthen the duration of the matter and the result obtained by us on your behalf; and (

g) the benefit to you of services rendered. [ 8 ] Paragraph 6 “Retainer” states: We confirm that we have received $10,000 as a retainer and request you provide us with an additional retainer in the amount of $20,000 to secure payment of our fees, disbursements and charges. The retainer funds will be held in trust pending payments on account. You have authorized us to deduct and pay from retainer funds in trust our statements of account for fees, disbursements and charges upon preparation of the statement of account in each case.

Statements of account will be delivered to you by personal delivery, facsimile or mailing within a reasonable time after being prepared. When retainer trust funds become depleted, you agree to replenish them to maintain a level of retainer funds in the amount of $30,000, or such other amount as may be mutually agreed. [ 9 ] Paragraph 7 “Termination of Legal Services” states: At all times you shall be entitled, for any reason, to terminate our services, upon notice, subject to your payment of the balance of fees and disbursements and charges owing to us.

Subject to our maintaining proper standards of professional conduct we may terminate our services for any reason, including circumstances such as the following: … 3. your failure to provide retainer funds and pay our accounts in accordance with the terms of this letter. [ 10 ] Paragraph 8 "Legal Professions Act" states: The Legal Profession Act , R.S.B.C. 1996, c.255 provides that you may apply to a Registrar of the Supreme Court of British Columbia to have this agreement reviewed. [ 11 ] The letter is signed by Mr. Brindle and Mr. Grewal, as I have stated, on June 19, 2008. [ 12 ] On July 11, 2008, Mr.

Brindle confirms a discussion of the previous day in an email. I will refer to the relevant portions of that email: In the circumstances of the time available, and the numerous steps required to be taken before trial, Mr. Perry will assume an important role as your counsel, with my assistance, and will, with your consent, act as trial counsel in order to reduce your legal costs. You may decide later on your choice of trial counsel, but at this time your preference is that the writer act or appear at trial as your counsel. Mr.

Perry is an experienced and senior trial counsel whose billing rate is less than the writers. Mr. Perry's hourly charge-out rate vary from $275/hour as assisting counsel to a higher rate as lead counsel.

His top [rate] is substantially less than the writer's rate @ $425 per hour. … We shall require a $100,000 retainer in our trust account by no later than September 4, 2008, to be held and utilized for payment of our accounts for the trial and immediate pre-trial work... … In addition to the trial retainer, you are required by the terms of your signed engagement letter with this firm to maintain a $30,000 retainer in trust to secure prompt payment of all interim accounts for services on the terms of the engagement letter. [ 13 ] The trial for which Singleton Urquhart was retained took place before Mr.

Justice Crawford from 2009 until 2010. Other matters arising from the trial continued before Crawford J. for approximately another five years.

[ 14 ] From July of 2008 Mr. Grewal paid the monthly accounts in variable amounts. Accounts that were rendered after July 2009 were not paid. Mr. Perry, then of Singleton Urquhart, provided most of the legal services. In 2011 after the trial was concluded he left Singleton Urquhart and moved to Stewart & Company. He continued to represent the client and his accounts which were paid sporadically. Stewart & Company has written off $13,781 in accounts receivable and $29,000 in work in progress. Mr. Perry says that 20 percent of the work that was performed on Mr.

Grewal's file, which includes the amounts written off, was paid for by the client. [ 15 ] After Mr. Perry left Singleton Urquhart the client continued to use the services of Singleton Urquhart up to December 30, 2013. In November 2013 Mr. Singleton on behalf of Singleton Urquhart wrote to Mr. Grewal confirming that Singleton Urquhart wished to get off the record and would appear only to seek an adjournment of application for special costs brought by Mr. Grewal’s opponent. [ 16 ] The other letter to which I wish to refer is that of October 27, 2014, where Mr. Singleton wrote to Mr.

Grewal and said: As requested, we have enclosed statements of account issued in 2013. Our last account was dated December 30, 2013. [ 17 ] Over the period of July 1, 2008, to May 30, 2013 Singleton Urquhart billed monthly and it issued another bill in December 2013. The total of the bills of Singleton Urquhart is $705,319.68. Mr. Grewal has paid $375,929.62; $329,390.06 remains unpaid. Issues [ 18 ] There are two issues before me: 1. Is the client out of time to review all of the accounts rendered by the lawyers? 2.

If the client is out of time, are there special circumstances where the court in its discretion should grant the client leave to review the accounts? Legislation [ 19 ]

Section 70 of the Act provides: 70

(1) Subject to subsection (11), the person charged or a person who has agreed to indemnify that person may obtain an appointment to have a bill reviewed before (a) 12 months after the bill was delivered under

section 69, or (b) 3 months after the bill was paid, whichever occurs first.

(11) In either of the following circumstances, the lawyer's bill must not be reviewed unless the court finds that special circumstances justify a review of the bill and orders that the bill be reviewed by the registrar: (

a) the lawyer has sued and obtained judgment for the amount of the bill; (

b) application for the review was not made within the time allowed in subsection (1). Position of the Parties The Client [ 20 ] Mr. Grewal says he is in time to challenge Singleton Urquhart's bill of December 30, 2013, and if he is out of time in respect of that account or others, that special circumstances apply. He says that he was not told that the bills were final and that he must tax them within three months after they were delivered. He considered that the retainer was for the whole matter. Mr. Brindle was to be his principal lawyer and that he did not consent to Mr. Perry acting as counsel.

In any event Mr. Perry's fee was to be $275 an hour and the bills recorded that his hourly fee was between $370 and $400. Mr. Grewal says he was told by Singleton Urquhart to take his file to Stewart & Company. The bills are mathematically wrong. There may be a bonus which may be billed by either or both firms. Singleton Urquhart and Stewart & Company refused to continue to represent the client with “disastrous results”. The Lawyers [ 21 ] The position of Stewart & Company is that Mr.

Grewal’s seeking to review its accounts is out of time; in any event it wrote off accounts receivable and work in progress, so there is no more money owing; there is nothing to review; Mr. Grewal only paid for 20 percent of the time expended by the firm in respect of his matters. [ 22 ] Singleton Urquhart says that the last bill on the retainer was May 2013. The bill that was rendered after that was for a new retainer regarding special costs, and that bill was rendered in December 2013. Singleton Urquhart says that it wanted to get off the record from January 2013 but the client was opposed.

It finally did so in December 2013.

[23] Singleton Urquhart says that the retainer letter was clear about the applicability of the Act; the monthly accounts were finalaccounts and that that was how they were rendered and how they were treated by the client until he stopped paying. Singleton Urquhartalso says that Mr. Grewal consented to Mr. Perry as lead trial counsel and his hourly rates were increased from time to time, as referredto in the retainer letter. Singleton Urquhart does not intend to claim a bonus. Decision Timeliness [24] There is no statutory authority allowing a review after the time prescribed in s. 70 has elapsed.

In the decision of Mickelson v.Cragg, 2011 BCSC 604, this was addressed by Mr. Justice Masuhara at para. 23 where he states: [23] I agree that there is no statutory authority permitting such a review under s. 68. However, there is some question in the authorities asto whether the court under its inherent jurisdiction has the ability to review agreements entered into by officers of the court beyond s. 68of the Act. The parties did not provide submissions on this point. However, it appears to me that it has been exercised in some limitedcircumstances. I note that in Tweten v.

Nichols, (BC SC), [1985] 3 W.W.R. 758 (B.C.S.C.), McLachlin J. (as she thenwas) stated at 764: These authorities establish that, apart from statute, it is only in circumstances such as deceit, gross misconduct or other matters touchingthe integrity of the profession that the court will intervene to set aside a contract for fees and order a taxation. [Emphasis in original.] [25] None of the circumstances to which McLachlin J. (as she then was) referred are apposite here.

I therefore find that there is noreason to depart from the provisions of s. 70. [26] I find that each monthly bill rendered by the lawyers was a final bill and that in accordance with the retainer letter and clarifiedby Mr. Brindle in his email, Mr. Grewal knew that when the account was rendered it was due and payable, and indeed he followed thatpattern at least for the first year. [27] In that circumstance then, the only bill that may not be time barred is that of December 30, 2013, from Singleton Urquhart. Iappreciate that Singleton Urquhart believes it to be a separate matter.

I appreciate that there is some suggestion that was outside of theother retainer, but it was confirmed by Mr. Singleton in October 2014 as the last account rendered by Mr. Singleton, and therefore it iswithin the 12 month timeframe prescribed in s. 70(1)(a). [28] I find that Mr. Grewal is barred from pursuing a review in respect of all of the accounts of Singleton Urquhart and Stewart &Company with the exception of the December 30, 2013 bill. The other Singleton Urquhart accounts and the Stewart & Companyaccounts cannot be reviewed under s. 70 unless I find there are special circumstances.

Special Circumstances [29] The special circumstance referred to by Mr. Grewal is that there was a whole retainer that covered the entire period duringwhich legal services were provided; the bills were not due and payable until that period was over. I have rejected that argument already. [30] Mr. Grewal also argues that he was not aware of the Act; Derek Brindle was to be his principal lawyer; the bills aremathematically wrong, there may be a bonus; and Singleton Urquhart refused to continue to represent him. [31] Mr. Grewal owes substantial fees from July 2009 which are unpaid.

He cannot now say that he did not consent to Mr. Perry.Mr. Perry was present and acted for him throughout the trial. The retainer letter was clear that Mr. Perry's hourly fee for being the leadlawyer on the trial was higher than $275 per hour and that the fees would go up. I do not know what is mathematically wrong with thebills. There is no bonus and none that will be charged by either firm. The client knew that Singleton Urquhart wanted to get off therecord and could do so for non-payment. [32] Mr. Justice Masuhara also referred to special circumstances in his decision in Mickelson at para. 35.

And I will refer to the listthat he provides and my reasons in respect of those points as we proceed: • the nature of the public interest aspect of the Act. The Act is for that purpose. That is a given. • [the client’s] interactions with court registry staff that affected his efforts to file for an appointment on time. This is not a factor here. • the fact that [the client] was only a day or two late in filing his appointment In this case, Mr.

Grewal was years later or over a year later, except as I have already found for the December 30, 2013 bill. • the significant size of the fees incurred in pursuing this litigation and the ratio of fees and disbursements charged to settlementobtained. Here there was no settlement but the size of the fees in pursuing the litigation are appropriate given that it was a multi-million dollarproperty in dispute for various uses, and a trial that consumed six weeks and then further matters for over a five-year period.

• the absence of real prejudice to [the lawyer]. In the Mickelson case, Mr. Mickelson had been paid. In this case there has been a prejudice to both firms. Only approximately half of the Singleton Urquhart bills have been paid and only 20 percent of the time that Stewart & Company spent on the file has been paid. • the review before the registrar, as I see it, should not consume an inordinate time.

In this case I am satisfied that the Singleton bill will need five days of hearings to tax accounts and that it will, in my view, consume inordinate time. [ 33 ] I therefore determine that there are no special circumstances which support the court exercising its discretion to allow Mr. Grewal to seek review of all of the accounts of Singleton Urquhart and Stewart & Company. [ 34 ] Thus, there is only one bill that is subject to review, and that is the Singleton Urquhart bill of December 30, 2013 and no others. It is so ordered. “Gropper, J.”