2019 QCCQ 4136, 2019 QCCQ 4136

Battaglia c. MacLellan 2019 QCCQ 4136 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-702275-175 DATE: February 13, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MARIA R. BATTAGLIA Plaintiff v.

GARY MACLELLAN and JEANNE BRIAND Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Maître Maria R. Battaglia, sues her former client, Mr. Gary MacLellan, on account for professional services in connection with his matrimonial file, for a balance $ 6,134.19, on a global billing of $ 11,834.19 [1] . The outstanding invoices run from January 7, 2013 to June 11, 2014. [ 2 ] Mr. MacLellan did not file a contestation and the case proceeded by default insofar as he is concerned.

Since he was not present at the hearing, it was not possible for the Court to explain to him the applicable rule of prescription provided by

article 560 C.p.c. [ 3 ] Given that prescription is a defence that must be raised and it was not, the Court will not consider the defence of it’s own motion [2] . [ 4 ] On its analysis of the invoices and statement of account, the Court finds sufficient evidence is made to establish the claim. Mr. MacLellan will therefore be condemned by default.

The contractual interest rate of 18% will apply [3] , but only from the date when the balance was payable, April 10, 2014. [ 5 ] Maître Battaglia also claims in solidum the same amount from Maître Jeanne Briand, the notary who handled a real-estate transaction on behalf of Mr. MacLellan and his estranged wife, the sale of their residence. [ 6 ] The sale had taken place on June 1 st , 2012 and a residual amount, after payment of the usual disbursements, was held in a trust account as of that date, pending instructions concerning distribution. [ 7 ] Maître Battaglia had agreed with Mr.

MacLellan that he would pay his fees from his share of this amount. He confirmed this in a document dated November 28, 2012, acknowledging that he would pay in full when the amount was received. The document adds “I authorize Maître Battaglia to instruct the notary to forward any amount owing to Services Juridiques MRB inc.”. [ 8 ] Me Battaglia wrote to Maître Briand on August 9, 2013 instructing her as to the disbursement of funds with a substantial amount to be disbursed to Me Battaglia intrust.

She provided a copy of the parties’ transaction agreement. [ 9 ] This agreement, however, broke down when the judge hearing the petition in divorce was unable to render judgement on the basis of the material before her. Me Battaglia eventually learned that the balance held in trust by Maître Briand had been disbursed on April 10, 2014 pursuant to an agreement [4] reached between the couple independently of their lawyers, apparently in the context of an action in separation. [ 10 ] In the agreement, the couple instruct the notary as to a different distribution than the one previously agreed to.

They renounce as well any recourse against the notary concerning the distribution of these funds. [ 11 ] In her letter of demand [5] of February 8, 2016, Maître Battaglia asserts that she only learned, on or about June 11, 2014, of this disbursement made on April 10, 2014. [ 12 ] She asserts, against Maître Briand, professional fault in having made this disbursement contrary to the previous instructions she had been given. [ 13 ] Maître Briand asserts two defences: firstly that the claim against her is prescribed and, secondly, that she is not at fault in

connection with her disbursements made at her clients’ request and pursuant to their instructions. [ 14 ] In the Court’s analysis, the matter is clearly prescribed insofar as Maître Briand is concerned. The claim was only initiated on July 4, 2017, more than three years after Maître Battaglia learned, on June 11, 2014, of the alleged fault occurring on April 10, 2014. [ 15 ] At that point in time, the amount of the invoices was due and owing and any obligation in solidum on the part of Maître Briand also arose.

After Maître Battaglia learned of this, on June 11, 2014, all the elements of the claim against Me Briand were known to her and there was no subsequent interruption of prescription. [ 16 ] Furthermore, the allegations against Maître Briand as to liability in connection with her professional conduct are ill founded. The mandate given through Maître Battaglia to her on August 9, 2013 was not an irrevocable mandate. It could therefore be revoked or changed at any time, unilaterally, by the person who had given it, Mr.

MacLellan [6] . [ 17 ] She received instructions from her client to directly disburse the money to him. This put an end to the mandate she had initially received. From that point onward, she had no other duty other than to follow her client’s new instructions, as regards his share of the proceeds of sale. [ 18 ] Nor did she have any responsibility in civil law or in terms of professional ethics to notify Maître Battaglia of her dealings with her client, the instructions received and the steps taken.

Rather, she had a professional duty of confidentiality in respect of these matters. [ 19 ] Her understanding was that there were no longer lawyers involved in the process and she acted in good faith in the accomplishment of the instructions given by her two clients. [ 20 ] The claim against Me Briand therefore fails. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant, Mr. Gary MacLellan, to pay the amount of $ 6,134.19 to the Plaintiff, with interest at the agreed rate of 18% per annum , calculated from April 10, 2014, plus the additional indemnity stipulated in

section 1619 of the Civil Code of Québec ; WITH judicial costs against the Defendant; DISMISSES the claim against the Defendant, Maître Jeanne Briand; WITH judicial costs in favour of that Defendant. __________________________________ David L. Cameron, J.C.Q. Date of hearing: February 11, 2019