2010 QCCQ 11649, 2010 QCCQ 11649

Bertucci c. Dawe 2010 QCCQ 11649 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-118600-099 DATE: December 15, 2010 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ ANTHONY BERTUCCI […] Montréal Québec […] Plaintiff v.

CATHERINE DAWE […] Chateauguay Québec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Anthony Bertucci is claiming $2,539.69 from Catherine Dawe for professional accounting services rendered. Ms. Dawe maintains that the invoice she received is considerably higher than what Mr. Bertucci had indicated. The evidence: [ 2 ] Mr. Bertucci prepared Ms. Dawe's income tax for the 2006 tax year. According to Mr. Bertucci, he had advised her that his rate was $250 an hour. Ms.

Dawe has no recollection of this fact. [ 3 ] Ms. Dawe was satisfied with Mr. Bertucci's services. She paid his bill in full and consulted him again for the 2007 tax year. Although Mr. Bertucci's hourly rate remained the same, he informed her that his services would cost less. No details were provided as to the foreseeable cost of his services. [ 4 ] Ms. Dawe received Mr. Bertucci's invoice for $2,539.69, which was no less than she had previously paid for her 2006 return. She testified that her 2006 tax return was complicated since it was late and she had to find receipts.

In addition, she had rental income, property disbursements, an inheritance and a portion of her GST and PST had to be done. These considerations did not exist in 2007. [ 5 ] Mr. Bertucci contends the preparation of Ms. Dawe's 2007 income tax return took considerably longer than expected. Information was missing, her Excel spread sheet was inadequate, and her expenses were not shown in appropriate categories. Analysis: [ 6 ] Ms. Dawe has multiple complaints about the amount charged and the service she received.

She maintains she was asked for information that was already on file; she was charged for a review of her documents by three separate persons; her file was re-assessed by the government because of errors regarding her RRSP contribution and expenses were disallowed. As well, her GST and PST report did not contain the dates of her expense accounts. [ 7 ] She contends she received an invoice without any detail. When she questioned the amount billed, she was told the information she had provided was not organized.

However, she had never been advised to organize her expense information differently, which she could easily have done. [ 8 ] The Court finds the majority of Ms. Dawe's complaints, about unsatisfactory work, are unfounded. There were a couple of instances where she was asked for information that was contained in her 2006 file. However, the amount of time needed to obtain the requisite information is not significant.

[ 9 ] Ms. Dawe's allegations of errors are not supported by the evidence. Her claim for massotherapist expenses was disallowed since the therapist was not registered. As for the alleged error regarding her RRSP contribution, her deduction was initially disallowed but was subsequently granted by the government. Finally, her claim as to missing dates on her GST and PST report is not valid; Mr. Bertucci did not prepare Ms. Dawe’s GST and PST forms in 2007. [ 10 ] Ms. Dawe complained about a duplication of time in her file. Mr. Wazir, a junior accountant, worked on her taxation return; Mr.

Chait, a partner, oversaw and reviewed Mr. Wazir's work, spending 6.50 hours. Mr. Bertucci spent 1.50 hours for a final review of the file. [ 11 ] It is not unusual for a firm to have work carried out by junior professionals and subsequently reviewed by a more senior professional. This procedure was followed in the present case. The only duplication occurred on January 11, 2008 when both Mr. Chait and Mr. Wazir met with Ms. Dawe for half an hour. [ 12 ] Ms.

Dawe submits that if the work took longer than expected because of the manner in which the expense information was provided, she should have been advised accordingly; she could have made the necessary modifications in her spreadsheet. The Court agrees with her contention in this regard. [ 13 ] There remains the issue of the amount of the billing. Ms. Dawe testified that Mr. Bertucci had told her that her return would cost considerably less than her 2006 return. Mr. Bertucci admitted that he had advised Ms. Dawe that her file would be less expensive but not “considerably” less. [ 14 ] The fact remains that Mr.

Bertucci did not provide any indication as to how much he estimated as fees for his services. [ 15 ]

Article 57 of the Code of ethics of chartered accountants states [1] : “A member shall make sure that his client is informed of the approximate and foreseeable cost of his services unless he can reasonably assume that the client is already informed. A member shall inform his client without undue delay if he expects to exceed the approximate cost.” [ 16 ] In this case, the Court concludes that while Mr. Bertucci provided valid accounting services and is entitled to be paid for his services, he failed to respect his obligation of information as set out in

article 57 of the Code of ethics governing the setting and payment of fees. [ 17 ] The remedy in such cases is a reduction of fees. In the case of Mathieu c. Marchand [2] , the Court of Appeal concluded that where there has been a violation of the obligation to inform, foreseen by the Code of Ethics governing lawyers, the only satisfactory solution is a reduction of the amount of professional fees payable: Tel qu'il a été observé précédemment, le juge a constaté que l'avocat n'a pas renseigné le client sur le taux horaire at the time of the mandate .

Il convient d'ajouter que, par la suite, l'avocat n'a pas renseigné utilement son client sur le prix approximatif et prévisible de ses services… Les dispositions de l'article 3.08.04 du code de déontologie des avocats se lisent ainsi: 3.08.04 L'avocat doit s'assurer que son client est informé du coût approximatif et prévisible de ses services, sauf s'il peut raisonnablement présumer que ce client en est déjà informé. (…) Ces dispositions ont pour effet d'imposer à l'avocat une obligation de renseignement. Dans le présent cas, le juge constate en définitive qu'il y a eu manquement à cette obligation.

Quelle est la sanction? Le juge, me semble-t-il, est d'avis que la sanction est une réduction des honoraires. Dans la relation avocat-client, je ne vois pas d'autres sanctions satisfaisantes. » [ 18 ] The above citation and underlying principle are applicable to the present case. [ 19 ] In light of the failure to inform and Mr. Bertucci's failure to ask Ms. Dawe to re-organize her spreadsheet in order to reduce the time spent on her file, the Court considers it appropriate to reduce the amount charged.

After consideration of both the violations as well as the services rendered, the Court, in its discretion, reduces the amount of Mr. Bertucci's invoice from $2,539.69 to $2,100. [ 20 ] As obiter, this litigation could have been avoided had a mandate for professional services been executed before beginning to work on the file of Mr. Aguzzi's wife, setting out the hourly rate, the estimated cost for services and the nature of the work involved.

FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's claim; CONDEMNS Catherine Dawe to pay Me Anthony Bertucci, the sum of $2,100 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec , since June 5, 2009, plus the judicial fees of $99.

__________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: October 25, 2010