2015 QCCQ 5620, 2015 QCCQ 5620

Dufourd Dion Avocats inc. c. Lubecki 2015 QCCQ 5620 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139541-132 DATE: JUNE 10, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ DUFOURD DION AVOCATS INC. 5115, Avenue Trans Island Suite 200 Montréal, Québec H3W 2Z9 Plaintiff-Cross Defendant vs.

WILLIAM LUBECKI […] Granby, Québec […] Defendant-Cross Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claimed an amount of $5,175.04 from Defendant for professional services. Defendant denied owing said amount and filed a cross-demand in the amount of $7,000.00 for "negligence causing injury".

CONTEXT [ 2 ] Plaintiff, a law firm, is represented at the hearing by Mtre Christian Dufourd who has been a lawyer since 1987. [ 3 ] In September of 2012, Defendant mandated Plaintiff to represent him in a case pending before the Superior Court, namely Court case no. 460-17-000817-072 (the Court case). This case concerned the Estate of the late Sara Elizabeth Miner and the

interpretation of her will. [ 4 ] The modalities of the mandate are not contested. [ 5 ] Following the signature of the mandate, Mtre Dufourd got involved in the Court case in which a hearing was to begin only a few weeks later. [ 6 ] The invoices prepared by Plaintiff show an important involvement of Mtre Dufourd in said case.

It is important to mention that up until the end of the representations before the Superior Court, which took place in mid-December of 2012, Defendant seemed satisfied by the services rendered by Plaintiff as all invoices were paid in full. [ 7 ] By mid-December 2012, the case was taken under advisement by Mr. Justice Tardif, J.C.S. [ 8 ] In January, Defendant contacted Mtre Dufourd with a two-fold approach: - Attempt to negotiate the sale of the land which was under litigation; - Request to send to Mr.

Justice Tardif the by-laws of the municipality where the land in litigation was located. [ 9 ] Mtre Dufourd was then of the opinion that it would be useful to send opposing party's attorney an offer to try to settle the litigation. The proof showed that Mtre Dufourd sent a settlement proposal to opposing party's attorney and that his proposal was declined. Mtre Dufourd also tried to convince Defendant not to bring additional proof before Mr.

Justice Tardif. [ 10 ] Shortly after, Mtre Dufourd informed Defendant that he considered appropriate to seek the amendment of the proceedings and the permission to reopen the hearing with respect to the municipal by-laws issue. According to Defendant, Mtre Dufourd refused to send the letter to the judge.

[ 11 ] In any event, a Motion to amend the proceedings and to reopen the hearing was served and presented before Mr. Justice Tardif. It was contested by opposing party and the motion was dismissed on the bench on March 26, 2013. [ 12 ] The following day, Mr. Justice Tardif signed the final judgment which was not to Defendant's satisfaction. [ 13 ] The first unpaid account for professional services in litigation before this Court is dated March 20 th 2013 and is in the amount of $4,001.34.

This invoice clearly referred to the preparation of correspondence and proceedings with respect to the amendment and reopening of the hearing. [ 14 ] Mtre Dufourd explained that Defendant provided Plaintiff with a cheque in the amount of $4,001.34 dated March 27, 2013 for said invoice.

The cheque was not cashed as Defendant later informed Mtre Dufourd it had been cancelled. [ 15 ] An additional unpaid account, dated April 2 nd , 2013 in the amount of $1,173.70, referred to the attendance of Mtre Dufourd in Court for the presentation of said motion. [ 16 ] The total of those two invoices comes to $5,175.04. [ 17 ] Plaintiff sent a letter of default to Defendant claiming for the payment of its professional fees on May 24, 2013. [ 18 ] According to Defendant, Mtre Dufour's refusal to send a letter to Mr.

Justice Tardif with the relevant by-laws, led to the final judgment, qualified by Defendant as "one sided". In order words, Defendant argued that since the by-laws are the law, there was no reason for Mtre Dufourd to present a Motion to reopen the hearing as a letter would have been more appropriate. Defendant held Mtre Dufourd liable for his loss of a chance to file the by-laws and convince Mr.

Justice Tardif of his contention. [ 19 ] In the contestation of Defendant's cross-demand, Mtre Dufourd explained that the argument regarding the municipal by-laws came very late in the process as none of the proceedings referred to same. In any case and considering the Code of Civil Procedure , he had no choice but to present an amendment and a request for the reopening of the hearing with respect to the municipal by-laws considering that the case was under advisement. ANALYSIS [ 20 ] The mandate for professional services governed the parties at file.

Said mandate referred to Mtre Dufourd's hourly rate of $250 and to an interest rate of 12%. [ 21 ] The proof offered at the hearing showed that invoices dated March 20 th and April 2 nd , 2013 totalling an amount of $5,175.04 remained unpaid. Said invoices refer to the work done by Mtre Dufourd upon the discovery by Defendant of by-laws who seemed, at least to him, relevant for his pending litigation. [ 22 ] Firstly, Mtre Dufourd acted upon Defendant's instructions in sending opposing party's attorney a settlement proposal.

In addition, although it is obvious that Defendant wanted to inform the judge of the existence of the by-laws through a letter, Mtre Dufourd rather prepared the Motion to amend and to reopen the hearing. [ 23 ] The Court finds most appropriate to reproduce

Section 463 of the Code of Civil Procedure : 463. A judge who has taken a case under advisement may, even of his own motion, by a judgment giving reasons, order the reopening of the hearing, for such purposes and upon such conditions as he may determine. The clerk must forthwith communicate such judgment to the chief justice and to the attorneys of the parties.

Any other order preventing judgment from being rendered must also give the reasons therefor and be communicated to the same persons. [ 24 ] It is the Court's opinion that in presenting the Motion to amend and to reopen the hearing, Mtre Dufourd acted in accordance with the Code of Civil Procedure . [ 25 ] In view of the proof offered at the hearing, the Court finds that Plaintiff is entitled to the related fees and that it must grant Plaintiff's claim for the amount of $5,175.04. [ 26 ] As far as Defendant's cross-demand is concerned, the Court must dismiss it. [ 27 ] It is clear from the Court's standpoint that Defendant had no complaint whatsoever with respect to the services rendered by Plaintiff, namely Mtre Dufourd, up until the moment he read the final judgment from Mr.

Justice Tardif. It is only then, for the first time, that he informed Mtre Dufourd of his intention to cancel the cheque written in favour of Plaintiff and dated March 27, 2013. [ 28 ] In addition, Defendant failed to establish by preponderant proof that Plaintiff, through Mtre Dufourd, neglected to provide appropriate legal counselling leading to any loss of any kind.

FOR THESE REASONS, THE COURT: GRANTS Dufourd Dion Avocats Inc.'s claim against William Lubecki; CONDENMS William Lubecki to pay Dufourd Dion Avocats Inc. an amount of $5,175.04 at the rate of 12% as of May 24, 2013; THE WHOLE with costs before the Small Claims Court Division; DISMISSES William Lubecki's cross-demand against Dufourd Dion Avocats Inc.;

THE WHOLE without costs. __________________________________ JULIE VEILLEUX, J.C.Q. Date of hearing: May 22, 2015