2017 QCCQ 3317, 2017 QCCQ 3317

Dagenais Legal inc. c. Yekta 2017 QCCQ 3317 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148179-155 DATE: April 11, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI J.C.Q. ______________________________________________________________________ DAGENAIS LEGAL INC. Plaintiff v.

MICHEL YEKTA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Dagenais Legal Inc. (Dagenais) claims $5,945.56 from Mr. Michel Yekta for unpaid legal services. [ 2 ] Mr. Yekta contests the claim and argues that that the amount claimed is exaggerated, that Dagenais undertook useless proceedings, and that the hourly rate charged by his former law firm is excessive and unreasonable. [ 3 ] Moreover, Mr.

Yekta makes a cross claim against Dagenais and against Me Claudette Dagenais personally, seeking a reimbursement of $15,000 in legal fees already paid. Questions in Issue

a) Did Dagenais perform the legal services contemplated for in the legal services agreement entered into between the parties and are the fees charged fair and reasonable?

b) Did Dagenais commit a fault in the execution of the legal services agreement and if so, what are the damages suffered by Mr. Yekta? Analysis

a) Did Dagenais perform the legal services contemplated for in the legal services agreement entered into between the parties and are the fees charged fair and reasonable? [ 4 ] On July 17, 2012, Mr. Yekta entered into a legal services agreement (Agreement) with Dagenais under which the latter agreed to provide litigation services in the context of divorce proceedings, court file 500-12-[...].

The Agreement provides that the legal services will be mainly provided by Me Claudette Dagenais at an hourly rate that is specified in the agreement and that bills are payable within 30 days, after which they shall bear interest at a rate of 12 % per year. [1] [ 5 ] Between July 2012 and October 2014, Dagenais sent Mr. Yekta 22 invoices on a monthly basis. Mr. Yekta paid 17 of these invoices without complaining or raising issues with respect to the quality of legal work provided by Dagenais. [ 6 ] Dagenais’s claim covers 7 invoices in total. At the trial, Mr.

Yekta did not contest the claim in regards to invoices 8622 and 8678 pursuant to which plaintiff claims $45.82. [2] [ 7 ] The issue before the Court is in relation to 5 contested invoices: [3]

Invoice Number Invoice Date Invoice Amount Outstanding Amount [4] 8521 March 31, 2014 $9,183.75 $4,495.66 8621 April 30, 2014 $87.67 $87.67 8677 July 4, 2014 $402.92 $402.92 9085 August 31. 2014 $72.43 $72.43 9138 September 30, 2014 $50.30 $50.30 Total $5,108.98 [ 8 ] The bulk of Dagenais’ claim relates to invoice 8521 dated March 31, 2014 for $9,183.75 of which Mr. Yekta has already paid a portion of. This invoice covers legal work performed in March 2014 for the preparation and attendance at court of a 3 day hearing (March 11, 12 and 13) held before Justice Gary D.D.

Morrison of the Québec Superior Court on motions for provisional measures filed by Mr. Yekta and his former wife. [ 9 ] Invoice 8521 shows that Dagenais charged Mr. Yekta a total of 45 hours towards the hearing: 30.3 hours for attendance in court over the 3 day hearing (includes preparing Mr. Yekta’s testimony, preparing oral arguments and preparing books of authorities) plus 15 hours for preparing the 3 day hearing. [ 10 ] On May 22, 2014, Justice Morrison issued his ruling following the March 2014 hearing. [5] [ 11 ] Invoices 8621, 8677, 9085 and 9138 are for a total of $613.32.

These invoices cover work carried out by Me Dagenais after the May 22 judgment and include work relating to settlement discussions, preparing the declaration of complete file and follow- up communications with counsel for the opposing party. [ 12 ] Based on the court’s review of the detailed invoices filed by Dagenais, the pleadings relating to court file 500-12-[…], the correspondence exchanged between Me Dagenais and Mr.

Yekta, and the evidence given by Me Dagenais at trial, the Court believes that the legal services covered by invoices 8521, 8621, 8677, 9085 and 9138 were carried out in conformity with the Agreement and with prudence and diligence. [6] [ 13 ]

Article 3.08.01 of the Code of Ethics of Advocates provides that a lawyer must charge fair and reasonable fees. The fees charged by Dagenais to Mr. Yetka are fair and reasonable because they are warranted by the circumstances and correspond to the professional services rendered. Moreover, they are fair and reasonable considering Me Dagenais’s level of experience, the time she devoted for the matter, the issues that were before Justice Morrison, the importance of the matter and the responsibility that Me Dagenais assumed. [7] [ 14 ] Subject to Mr.

Yekta’s cross-claim, the Court concludes that Dagenais’ claim for unpaid legal services is well founded in the amount of $5,108.98 in capital. [ 15 ] Dagenais also claims interest at a rate of 12 % per year on this outstanding amount as per clause 4 of the Agreement. Considering that this rate of interest is reasonable and considering that Mr. Yekta agreed to this rate of interest in writing, the Court will award Dagenais interest on the capital at the agreed upon rate. [8] [ 16 ] Accordingly, and subject to the contestation and cross-claim, the Court will award Dagenais $6,913.52 plus interest. [9]

b) Did Dagenais commit a fault in the execution of the legal services agreement and if so, what are the damages suffered by Mr. Yekta? [ 17 ] In his contestation, Mr. Yekta denies owing the amount claimed by Dagenais. He alleges that Dagenais overbilled him, that the amount claimed is exaggerated, that Dagenais filed useless pleadings, and that Me Claudette Dagenais hourly rate is excessive and unreasonable. [ 18 ] Not only does Mr.

Yekta deny owing Dagenais any money, he filed a cross-claim against Dagenais and Me Claudette Dagenais personally, claiming $15,000 in damages, which represents a refund of the legal services he paid for. [ 19 ] Firstly, Mr. Yetka’s cross-claim against Me Dagenais personally is unfounded. While a defendant in a matter governed by Title II of the Code of Civil Procedure (Recovery of Small Claims) may form a cross-claim, the cross-claim can only be made against the plaintiff and not against as third party such as Me Dagenais. [10] As Me Dagenais was not a plaintiff in the proceedings against Mr.

Yekta, the cross-claim against her has no basis in law. [ 20 ] Secondly, in order to succeed in his defense and cross-claim against Dagenais, Mr. Yekta must prove on a balance of probabilities that Dagenais committed a contractual fault in the execution of the legal services provided to him between July 2012 and September 2014. To meet this burden, the evidence offered must be clear and convincing and the alleged facts must not only be possible, but probable. [11] Mr. Yekta has not met this burden of proof. [ 21 ] Mr. Yekta argues that Dagenais’s hourly rate is unreasonable and excessive.

Yet, he agreed to this rate in the Agreement. [12] Moreover, considering that he paid 17 invoices from July 2012 to July 2014 yet he never complained about the hourly rate during that time period, Mr. Yekta is foreclosed from complaining about the hourly rate. [13] [ 22 ] Mr. Yekta’s testimony in support of his claim that Dagenais provided a poor quality of legal services is vague, unspecific and not convincing. [ 23 ] For there to be a finding of professional fault, the burden rests on Mr.

Yekta to establish that a reasonably diligent and prudent lawyer placed in the same circumstances as Me Dagenais, would have acted differently than she did, such that the latter’s conduct constitutes negligence. In the context of a claim for professional negligence in the provision of litigation services, the case law establishes that the litigation lawyer has an obligation of means and not an obligation of result. Moreover, the litigation lawyer benefits

from a large discretion in the execution of his mandate. [14] A civil litigation lawyer is not expected to be perfect or obliged to achieve his client's preferred result. [15] [ 24 ] The evidence adduced at trial does not support Mr. Yetka’s claim that Me Dagenais’ committed professional negligence. For example, on May 12, 2014, Me Dagenais sends Mr. Yekta a statement of account indicating an overdue amount of $17,809.31 on a number of invoices, including invoice 8521, and asks him to pay all outstanding amounts. [16] [ 25 ] On the same date, Mr.

Yekta writes to Me Dagenais, apologizes for the delay in paying the invoices, and informs her that he has sent her three postdated checks for $3,000 each, which he in fact does. [17] He does not raise in this email the alleged poor quality of Dagenais’ legal services or that he was overbilled or any of the complaints he makes in his contestation and cross-claim. [ 26 ] The evidence shows that until he received the May 22 ruling issued by Justice Morrison, Mr. Yekta was satisfied with Me Dagenais’ services. For example, by email dated March 6, 2014, sent to Me Dagenais, Mr.

Yekta expresses his full confidence in Dagenais’ legal services. [18] [ 27 ] It appears that Mr. Yekta’s dissatisfaction stems largely, if not exclusively, from the fact that he is not happy with the results of the May 22, 2014 judgement issued by Justice Morrison. [ 28 ] That said, an unfavorable ruling does not mean that a lawyer has necessarily committed a fault. [19] Mr. Yekta has failed to discharge his burden of proving that Me Dagenais committed a fault in the execution of the litigation services. Accordingly, his defense and cross-claim fail.

FOR THESE REASONS, THE COURT: [ 29 ] GRANTS Dagenais Legal Inc.’s action; [ 30 ] CONDEMNS Michel Yekta to pay Dagenais Legal Inc. $6,913.52 plus interest at the rate of 12 % per year from October 4, 2016 [ 31 ] WITH LEGAL COSTS of $222 representing the fees paid on the application. __________________________________ ENRICO FORLINI J.C.Q. Date of hearing: January 10, 2017