2022 QCCQ 839, 2022 QCCQ 839

Richard A. Friedman, Attorneys Corporations Inc. c. Daniel 2022 QCCQ 839 COURT OF QUEBEC Practice Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-266929-218 DATE: March 8, 2022 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS ______________________________________________________________________ RICHARD A. FRIEDMAN, ATTORNEYS CORPORATION, INC. Plaintiff v.

RAMZI DANIEL Defendant ______________________________________________________________________ JUDGMENT ON DEFENDANT’S DEMAND TO DISMISS PLAINTIFF’S ORIGINATING APPLICATION AND DECLARATION OF ABUSE ______________________________________________________________________ I. CONTEXT [ 1 ] Defendant Ramzi Daniel submits an Application to Dismiss Plaintiff Richard A. Friedman Attorneys Corporations Inc.’s (“ Friedman ”) Modified Application Originating a Proceeding (“ Originating Application ”) under

Article 168 of the Code of Civil Procedur e ( C.C.P. ) and asks the Court to Declare Plaintiff in Abuse of Process as per

Article 51 C.C.P. [ 2 ] Friedman, a law firm located in Montréal, province of Québec, is suing Mr. Daniel for unpaid fees related to legal services the firm executed at his request and for his benefit. [ 3 ] The facts giving rise to Friedman’s claim can be summarized as follow. [ 4 ] On or around May 14, 2015, the parties entered into a first agreement, referred to as a Letter of Engagement (“ LoE1 ”). [1] LoE1 contained several provisions concerning four files. The portion of LoE1 that detailed the hourly rates and the retainer agreement read as follows: Dear Mr.

Daniel, These presents confirm your request for our professional services in connection with the above-noted matter in addition to any and all other legal matters relating to Mr. Ramzi Daniel’s land in Ville de Mont St. Hilaire. […] 5. For professional services already performed prior to the date hereof and to be hereafter performed by the attorneys of Bell Rudick Friedman, Mr.

Ramzi Daniel hereby agrees and undertakes to pay to Bell Rudick Friedman fees calculated and charged out on an hourly basis, namely the amount of $300.00 per hour for Me Richard Friedman, $150.00 per hour for Me Aaron Schachner, $95.00 for any articling students, and an hourly fee which is commensurate with the experience of any lawyer which hereafter joins the firm. [ 5 ] LoE1 ceased to be in effect sometime during the month of March 2016. [2] [ 6 ] Mr.

Daniel consulted with Friedman again in the spring of 2018, in need of further legal services in regards to the same files as in retainer LoE1, which resulted in the parties signing of a second Letter of Engagement (“ LoE2 ”) on or around June 4, 2018. [3] [ 7 ] In his dealings with Friedman Mr. Daniel refuses to receive any communications but by fax. Friedman explains that this mean of communication has proven to be difficult, Mr.

Daniel controlling whether to activate the fax machine and putting a limited number of pages in the machine to receive communications. [ 8 ] Friedman further explains in its Originating Application that Mr. Daniel omitted, neglected or refused on several occasions to receive the quotes and modified Letters of Engagement that the firm tried to fax him as provided for in LoE2. [ 9 ] Friedman still managed to convey quotes and modified letters of engagement to Mr. Daniel [4] . Although Mr.

Daniel did not sign and return the quotes and/or modified letters of engagement to Friedman but the last one, he was well aware that his attorneys were taking the necessary actions to protect his interests.

[ 10 ] The only quote Mr. Daniel signed and returned to Friedman after the signed LoE2 is dated September 8, 2018. It pertains to the fees and disbursements payable for the preparation of a Motion to Rectify Procès-verbaux and the transcription of hearings that took place in May and June 2017, as well as December 2018 [5] . [ 11 ] Friedman’s quotes that Mr. Daniel failed to sign and return as provided by LoE2 provided for lump sum fees for each action the firm needed to take to protect his rights. Because Mr.

Daniel’s failed to sign and return the quotes and letters of engagement to Friedman, the firm charged him $50,169.99 calculated on a quantum meruit basis. [ 12 ] In support of his Application to Dismiss Friedman’s Originating Application, Mr. Daniel contends that the firm’s application has no contractual nor legal grounds because he did not sign the quotes Friedman sent to him further to the signing of LoE2. In that context, Mr. Daniel takes the position that Friedman’s claim under LoE2 cannot stand. II. THE LAW [ 13 ] The Application to Dismiss is made under

Article 168 of the Code of Civil Procedure [6] ( C.C.P. )., which reads as follows: A party may ask that an application or a defence be dismissed if (1) […] (2) […] (3) one of the parties clearly has no interest. The party may also ask that an application or a defence be dismissed if it is unfounded in law even if the facts alleged are true. Such an exception may pertain to only part of the application or defence. The court may, on the face of the record, deny an application for dismissal based on the grounds that it has no reasonable chance of success.

The party against which the exception is raised may be allowed a period of time to correct the situation but if, on the expiry of that period, the correction has not been made, the application or defence is dismissed. The dismissal of an application may be urged even if the exception to dismiss was not raised before the first case management conference. [ 14 ] The following criteria must guide a judge in the application of

Article 168 C.C.P.: • The allegations in the originating application and the exhibits produced in support thereof are deemed to be proven; however, only the facts alleged are deemed to be proven and not their qualification by the plaintiff. • The court should not decide on plaintiff’s chances of success or the merits of the alleged facts.

Unless it is plain and obvious that the originating application lacks a basis in law, it should be left to the trial judge settle the dispute after having heard the evidence and the arguments. • The action must be declared admissible if the allegations in the originating application are likely to give rise to the conclusions sought. • At the stage of the preliminary motion to dismiss, it is not a question of deciding the legal claims of the parties, but of determining whether the conditions of the procedure are integral to the facts alleged, in the light of the law invoked. • The complexity of the issues raised is not grounds for dismissing an application to dismiss. • Caution is warranted; in uncertainty, the court should avoid dismissing a case prematurely and give plaintiff the chance to be heard on the merits . • Caution is not, however, synonymous with a wait-and-see attitude and the judge may dismiss an action that is clearly doomed to fail in the interest of the parties and the sound administration of justice. [7] [ 15 ] Mixed questions of fact and law must be left to the trial judge to be decided and, where a question cannot be resolved on a simple reading of the file, the application to dismiss should be dismissed. [8] [ 16 ] In its recent Canadian National Railway v.

Canadian Pacific Railway decision, the Superior Court synthesized the applicable principles as follows: [8] In order to grant the Application to Dismiss, the Court must conclude that the causes of action are unfounded in law even if the facts alleged in the proceeding are true and that therefore the cause of action lacks a basis in law. If the outcome of the litigation depends on the determination of questions of fact or mixed questions of fact and law, the jurisprudence requires that the Application to Dismiss be dismissed . [9] (Emphasis added) III. ANALYSIS AND DECISION

[ 17 ] In its Originating Application Friedman states the following: 4. On or about May 14, 2015, the parties signed a letter of engagement in relation to the court files numbers 750-17-002314-130, 500-09-024342-149, 750-17-002222-135, 500-09-074581-142 and SAI-M-132140-0705 TAQ, the whole as appears from a copy of the Letter of engagement dated May 13, 2015, disclosed as Exhibit P-2 , to avail as if herein recited at length; 5. In or about the month of March 2016, the Plaintiff ceased representing the Defendant; 6.

On or about June 4, 2018, the parties signed a Letter of Engagement in which the Plaintiff accepted to represent the Defendant within a restricted scope in relation in the file number 750-17-003051-178 (sic), the whole as appears from a copy of the Letter of Engagement dated May 31, 2018, disclosed as Exhibit P-3 , to avail as if herein recited at length; 7. By virtue of said Letter of Engagement, Exhibit P-3, the Plaintiff accepted to appear and represent the Defendant for solely to present the following applications: a. Application to Disavow an Attorney and to Repudiate his Acts (Article 191 C.C.P.) b.

Application for Revocation of Judgment and Stay of Execution (Articles 346 and following C.C.P.); and c. Application to Reduce the Amount of Suretyship (492 al. 3 C.C.P.); 8a.

More specifically, the above-mentioned Letter of Engagement, Exhibit P-3, states as follows, namely “ Notwithstanding the foregoing, our firm will appear and represent you on the record solely to present a Motion to Revoke the recent decision on the Motion for Security for Costs, after which the attached Appearance in your personal name, which must be signed by you simultaneously with the Letter of Engagement (the date to be inserted by our firm thereafter with your permission herein granted) will be produced into the Court record by our firm not sooner than 3 business days after the receipt of the Court’s decision and not later than 10 days after that Court decision receipt date on the Motion to Revoke, after which our mandate is revoked and terminated as regards our professional services before the Courts .” as appears from the Letter of Engagement dated May 31, 2018, disclosed as Exhibit P-3, to avail as if herein recited at length ; 8.

Moreover, it was agreed that Plaintiff would prepare any other legal proceedings on behalf of the Defendant upon the fulfilment of certain conditions, namely, receipt by the Plaintiff of the Defendant’s verbal or written instructions, Defendant’s signed acceptance of a written quote provided, and receipt by the Plaintiff of the quoted amounts or confirmation by e-mail or fax of the wire transfer from the Defendant’s bank, the whole as appears from a copy of the Letter of engagement, Exhibit P-3; 9.

However, on or about June 19 th 2018, given that the Defendant was notified with an Inscription pour jugement sur désistement réputé quant aux frais de justice (Art. 177 C.p.c.) , the Plaintiff proceeded in good faith and in accordance with its ethical obligations and represented the Defendant in the context of Application to be relieved of the default and to extend the delay (177 al.2) and Application to rectify (Section 338 C.C.P.) , in order to avoid a prejudice to the Defendant, and in this regard, the Plaintiff accepted a verbal mandate from the Defendant pertaining to said applications but refused to sign any quotes provided in relation to said application ; 10.

Given the Defendant’s refusal to sign many quotes provided by the Plaintiff, the Plaintiff proceeded to invoice the Defendant on an hourly basis as follows, namely: the amount of CAD $300.00 per hour for Me Richard Friedman, CAD $225,00 per hour for Me Raman Berwari and CAD $150,00 for Me Alex Campeau, as appears from many unsigned quotes and Modified Letters of Engagement sent to the Defendant disclosed herewith en liasse as Exhibit P3a) , to avail as if hereing recited at length; 11.

The Defendant was aware of the Plaintiff’s hourly rate, the whole as appears from a copy of the Letter of engagement dated May 31, 2015, Exhibit P-2; 12. The Plaintiff is hereby requesting this Honorable Court to condemn the Defendant to pay the Plaintiff the amount of fifty thousand one hundred and sixty-nine dollars and ninety-nine cents ($50,169.99) for professional services rendered by the Plaintiff to the Defendant, the whole as appears from a Reminder

Notice dated October 28, 2019, Invoices bearing number 5590, 5619, 5620, 5636, 5637, and 5646, disclosed as Exhibit P-4 en liasse , to avail as if herein recited; [….] (Underscore in the original document) (Double underscore added) [ 18 ] In support of his Application to Dismiss Friedman’s Originating Application and to have Plaintiff declared in abuse of process, Mr. Daniel claims the following: 4. Paragraphs 6 and 7 of Plaintiff’s originating Application are not fully or completely accurate .

The letter of Engagement dated May 31th, 2018 (Plaintiff’s Exhibit P-3) clearly states that Plaintiff would provide its professional services in several files, not just file 750-17-00351-178, only on a fixed fee/quote basis and for various tasks that may be requested by Defendant, not just limited to the tasks outlined in paragraph 7 of the originating Application; 5. Paragraph 9, 10, 11 and 14 of Plaintiff’s originating Application are misleading and indisputably inaccurate.

The tasks outlined in paragraph 9 of Plaintiff’s Application, in which Plaintiff agreed to represent the Defendant, were done by prior agreement on a fixed quote basis, and were paid by Defendant on such fixed quote basis, and the preparation and/or drafting of these tasks was never billed by Plaintiff on an hourly basis as is clearly evident from his own subsequent hourly bills (Plaintiff’s exhibit P-4) […] Exhibit D-1 the fixed quote dated September 18 th , 2018 prepared by Plaintiff, signed and initiated by Defendant, showing a previously agreed to fixed quote for fees and disbursements totaling 5406.00 $ CAD, covering inclusively the tasks outlined in paragraph 9 of Plaintiff’s Application, plus also other added items, for a grand total of 5788.30 $ CAD, along with its proof of fax to Plaintiff’s also dated September 18 th , 2018 and also Defendant’s proof of payment to Plaintiff by wire transfer in the amount of 5788.30 $ CAD dated September 18 th , 2018; (Emphasis added) [ 19 ] It is Mr.

Daniel’s position that since the hourly rates set out in LoE1 had not been reiterated in LoE2 they were not in force in 2018. In addition, he argues that had he been aware of this billing structure moving forward, he would not have agreed to it. [ 20 ] Finally, Mr. Daniel argues that he never agreed to Friedman’s quotes which he claims was a provision forming an essential part of LoE2. Although exhibits communicated in support of Friedman’s Originating Application indicate otherwise, Mr. Daniel sustains that he never received quotes from Friedman for approval.

Consequently, although he does not deny that Friedman rendered legal services in his favour, he claims that Friedman’s Originating Application has no contractual or legal basis and should be dismissed. [ 21 ] LoE2 reads in part as follows: These presents confirm your request for our professional services in connection with the above-mentioned matters.

In this regard, the undersigned’s [ Friedman ] assistance or that of any or our associates shall include the drafting of any and all legal proceedings with regards to the above-mentioned captioned matters [750-17-003051-178, 750-17-002314-130 (S.C.) 500-09-026370-163 (C.A.); 750-17- 002222-135 (C.S.); SAI-M-132140-0705 T.A.Q.; Motion to Disavow/Retract] , based upon your verbal or written instructions and our input with the same due diligence as if we were your attorneys of record . [10] Bell Rudick Friedman will not represent you as the attorney of record in any matter.

The role of Bell Rudick Friedman and its attorney shall strictly be to draft legal proceedings and advise you and assemble exhibits and file and serve.

Notwithstanding the foregoing, our firm will appear and represent you on the record solely to present a Motion to Revoke the recent decision on the Motion for Security for Costs, after which the attached Appearance in your personal name, which must be signed by you simultaneously with this Letter of Engagement (the date to be inserted by our firm thereafter with your permission herein granted will be produced into the Court record by our firm not sooner than 3 business days after the receipt of the Court’s decision and not later than 10 days after that Court decision receipt date on the Motion to Revoke, after which our mandate us revoked and terminated as regards our professional services before the Courts. [11] We shall prepare any and all legal proceedings in relation to the above-captioned matters, upon fulfilment of all of the following: 1) Receipt by the firm of your verbal or written instructions; 2) Your signed acceptant of the written quote provided; 3) Receipt of the quoted dollar amounts or confirmation by e-mail or fax of the wire transfer from your bank; 1) For Professional services to be hereafter performed by the attorneys of Bell Rudick Friedman, Me Richard Friedman hereby undertakes to submit a quote in writing with respect to the fixed legal fees for the assigned tasks and estimated disbursements for the

upcoming professional services. Mr. Ramzi Daniel, if in agreement must sign the written quote and agrees and undertakes to pay to Bell Rudick Friedman the amount quoted […] 3) Although Bell Rudick Friedman shall be drafting proceedings which Mr.

Ramzi Daniel instructs be drafted, pursuant to our advice and input with the same due diligence as if we were your attorneys of record, our representation of you for the purpose of drafting proceedings and assembling of exhibits and filling and service only, shall be on a strictly confidential basis, for the performance of services rendered not as attorneys of record before the Courts . [12] (Emphasis added) [ 22 ] Mr. Daniel recognises that Friedman’s statement of fact is partially accurate.

The mere fact that he disagrees with Friedman’s understanding of what is the contractual or legal basis for Friedman’s Originating Application, does not entail that the application is not founded in fact and/or in law and should be dismissed without a hearing on the merits. [ 23 ] The fact that Mr. Daniel needed over one hour to explain why, according to his

interpretation of what occurred, Friedman’s Originating Application should be dismissed does not support his contention that Friedman’s claim is unfounded in fact and/or in law. [ 24 ] Considering that he is not denying that Friedman did work for him, his contention that Friedman’s Originating Application is without basis is wrong and his suggestion that Friedman file a new recourse in which he would not claim application of LoE2 is contrary to the principle of proportionality that must govern any and all legal proceedings. [ 25 ] Given the above conclusion, Mr.

Daniel’s demand to dismiss Friedman’s Originating Application and declare Plaintiff in abuse of process is dismissed. FOR THESE REASONS, THE COURT: [ 26 ] DISMISSES Mr. Ramzi Daniel’s Demand to Dismiss the Originating Application Originating a Proceeding and to Declare Plaintiff in Abuse of Process. [ 27 ] THE WHOLE, with judicial costs. __________________________________ MAGALI LEWIS, JCQ Me Richard A. Friedman BELL – RUDICK – FRIEDMAN Richard A. Friedman Attorneys Corporation, Inc. For Plaintiff Mr. Ramzi Daniel Defendant Date of hearing: February 4, 2022