2022 QCCQ 3317, 2022 QCCQ 3317

Mager c. Cabinet Gelber Liverman 2022 QCCQ 3317 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-708065-190 DATE: January 18, 2022 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ STANLEY MAGER And BRAHM CAMPBELL Plaintiffs v.

CABINET GELBER LIVERMAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs claim from Cabinet Gelber Liverman (CGL) the sum of $13 776.02 in damages and losses sustained as a result of the poor execution of a mandate given to Mtre Fredric (Rich) Liverman to act as co-counsel to co-plaintiff, Brahm Campbell (CAMPBELL).

As a result Stanley Mager claims the return of a $5 000.00 retainer that was given to CGL and $3 776.02 in damages to compensate for the fact that CAMPBELL had to work extra hours on the file. For his part, CAMPBELL claims $5 000.00 in damages alleging that part of the extra work he had to do as a result of LIVERMAN’S poor services was never paid by MAGER. [ 2 ] CGL contests the claim. Regarding CAMPBELL’s claim, they raise the absence of lien de droit and as a result the absence of right to recover.

For the rest, CGL argues that they adequately executed their mandate and were the cause of no damage. [ 3 ] The facts surrounding this case are simple but made complicated by the profound animosity the plaintiffs hold against LIVERMAN. They can be summarized in the following manner. [ 4 ] MAGER is engaged in a family dispute related to an Estate. CAMPBELL is the attorney representing him.

Even though he believes CAMPBELL to be a very competent attorney, MAGER felt he was over his head with this file. [ 5 ] A motion related to the nomination of an arbitrator was to be presented shortly, before Superior Court and MAGER wanted LIVERMAN to act as co-counsel to CAMPBELL.

On May 9 th 2018, CAMPBELL transferred to CGL the amount of $8 000.00 (USD) or $9 895.01 (CAN) which he had received from MAGER to pay for LIVERMAN’s fees. [ 6 ] CAMPBELL prepared all the relevant proceedings in Superior Court presentable May 22, 2018 and expected LIVERMAN to plead the proceedings personally with him. [ 7 ] LIVERMAN was obviously unfamiliar with the case. He mandated a junior lawyer to prepare a

summary of the facts that he then submitted to MAGER to assure that the facts were as he understood them. [ 8 ] LIVERMAN felt it was unnecessary for him to attend the hearing on the arbitration motion scheduled in Court but MAGER insisted that his firm attend. LIVERMAN then instructed his junior associate to appear in Court beside CAMPBELL. MAGER wanted to show to his opponents that he had a team of attorneys representing him not the least of which attorney's from CGL known to have experience in Estate litigation. [ 9 ] CAMPBELL attended Court with CGL’s junior associate.

CAMPBELL agued the motion and it was a success. [ 10 ] After said hearing, MAGER wanted to consult with the junior associate in order to debrief and discuss further strategies. LIVERMAN refused unless he was present. MAGER then wrote « There was no point sending Me Zheng to observe if you will not allow him to confer with me outside of your presence regarding his comments and advice as to what he observed, learned and how it will benefit your client » [1] . [ 11 ] CGL returned part of the retainer ($5 000.00 CAN) but kept the balance.

On May 23 rd 2018, they invoiced MAGER for $7 280.07 leaving an unpaid balance of $2 400.06. Said balance was never paid by MAGER who was furious about receiving what he feels represents a «nonsensical invoice». CGL does not crossclaim for the unpaid balance on the invoice.

[ 12 ] As previously stated, this case is not complicated as most of it can be readily decided based on the evidence adduced in Court. [ 13 ] This claim is based on the rules regarding contractual liability. To succeed Plaintiffs must first demonstrate the existence of a contract, a failure in the execution of a party’s duties and a material injury that directly resulted from this failure [2] . [ 14 ] CAMPBELL has failed to demonstrate that there existed a contract between himself and CGL. Evidence shows that he always acted as MAGER’s attorney and followed his instructions.

Moreover, CAMPBELL failed to file any evidence to substantiate his claim for damages. His claim shall therefore be rejected. [ 15 ] This is also the case regarding MAGER’s claim for damages. No evidence supports his allegation that CAMPBELL was paid extra hours to argue this case.

If this were the case, CAMPBELL would not also be claiming for unpaid fees. [ 16 ] This leaves the question of the reasonableness of CGL’s fees. [ 17 ] Since there is no specific agreement relating to the fees other than the fact that they should be calculated on an hourly basis, the Court will refer to the Code of ethics of advocates , more specifically sections 3.08.01 through 3.08.04, to determine the reasonableness fees [3] . 3.08.01. The advocate must charge and accept fair and reasonable fees. 3.08.02.

The fees are fair and reasonable if they are warranted by the circumstances and correspond to the professional services rendered. In determining his fees, the advocate must in particular take the following factors into account: (

a) experience; (

b) the time devoted to the matter; (

c) the difficulty of the question involved; (

d) the importance of the matter; (

e) the responsibility assumed; (

f) the performance of unusual professional services or professional services requiring exceptional competence or celerity; (

g) the result obtained; (

h) the judicial and extrajudicial fees fixed in the tariffs. 3.08.03. The advocate must avoid all methods and attitudes likely to give to his profession a profit-seeking or commercial character. 3.08.04.

An advocate shall, before agreeing with the client to provide professional services, ensure that the latter has all useful information regarding the nature and financial terms of the services and obtain his consent thereto, except where he may reasonably assume that the client is already informed thereof. [ 18 ] We must consider the importance of the file, the difficulty of the matters involved, the outcome of the motion, the fact that MAGER wanted to show his opponents that he had an experienced legal team, and also the fact that CGL was mandated at very short notice.

The Court also considers the fact that CGL’s hourly rates were known to MAGER and that part of the invoice was never paid. Finally, the fact that LIVERMAN had led MAGER to believe that he was going to attend the Motion in Court but did not requires certain adjustments. In such a context it seems reasonable that only the junior associate lawyer’s fees be charged. This brings the fees to an amount of $4 966.92 with taxes.

The balance between this amount and the $5 000.00 retainer does not even cover the disbursements. [ 19 ] Considering all of these factors, the Court does not find that the fees actually paid were not reasonable. Therefore the claim must be rejected. FOR THESE REASONS, THE COURT : DISMISSES the action. THE WHOLE without cost. __________________________________ GILLES LAREAU, J.C.Q. Date of hearing: December 7, 2021