2023 MBKB 11, 2023 MBKB 11

Date: 20230119 Docket: FD 21-01-26952 (Winnipeg Centre) Indexed as: McMillan v. Paul et al Cited as: 2023 MBKB 11 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: DAVID IAN McMILLAN, ) ) ) David Ian McMillan Self-represented applicant, ) ) -and- ) ) CARLA B. PAUL, CARLA PAUL LAW CORPORATION, LEVENE TADMAN GOLUB LAW CORPORATION, respondents. ) ) ) ) ) ) Carla B. Paul Self-represented ) ) REPORT ISSUED: January 19, 2023 ) ) ) DEEMED CONFIRMATION DATE: ) February 23, 2023 Corrected Report: An Erratum was issued on January 27, 2023.

The text of the initial report is reproduced here with corrections, and the Erratum is appended at the end of this Corrected Report. MASTER BERTHAUDIN [ 1 ] This is my report on the application filed by David Ian McMillan (the applicant) to assess the lawyer’s bills rendered by Carla B. Paul (the respondent) and Levene Tadman Golub Law Corporation. The application is made pursuant to King’s Bench Rule 71. As the application was filed within six months of the applicant’s receipt of the respondent’s final legal bill, Rule 71 allows assessment of all bills previously rendered in respect of the same matter.

In this case, that means that legal bills rendered over roughly six years in heavily contested domestic litigation are to be assessed. [ 2 ] The affidavit filed in support of the application makes many broad-ranging accusations against the respondent. These include: • Overworking the file; • Excessive review and preparation time; • Unnecessary or delayed motions; • Not actively encouraging settlement; • Bringing unnecessary or frivolous proceedings to court; • Obstructing the litigation by using delay tactics and intimidation;

• Not responding to correspondence in a timely manner; • Excessive animosity with opposing counsel; • Failure to control the excessive interim litigation by the opposing party; • Double billing for preparation for Judicially Assisted Dispute Resolution (JADR); and • Charging excessive fees. [ 3 ] Essentially the applicant put at issue all billing by the respondent over the six-year period of the retainer. One wonders how the relationship between lawyer and client lasted six years with complaints of this breadth made by the client.

The truth is, the applicant made no substantive complaints about fees during the respondent’s tenure as his lawyer. It was only upon receipt of his file after the respondent withdrew as his counsel that these complaints emerged. [ 4 ] A series of four hearings for directions were held with the parties to bring some focus to the application, identify the major issues for determination, and ensure proper documentary disclosure. Through these hearings, the following major issues were identified: I. Deferred fees from a trial in the amount of $31,442.25 were sought as a reduction; II.

Fees related to a delay in the proceedings as a result of a 10-month delay in attending cases conferences were sought as a reduction; and III. 29.5 hours related to JADR billings were sought as a reduction. [ 5 ] The total reduction sought as a result of these three issues was $63,606.46. In addition, the fourth issue identified by the applicant was an unquantified reduction as a result of the respondent having “overworked” the file. [ 6 ] A three-day formal hearing was held on October 12 – 14, 2022. The respondent and her paralegal gave evidence and were cross-examined.

The applicant and his fiancé gave evidence and were cross-examined. In total, eight books of documents were filed and marked as exhibits; six by the applicant and two by the respondent. [ 7 ] When challenged with documentary evidence on cross-examination, the applicant resiled from many of the accusations made not only in his affidavit filed in support of the application, but in his direct evidence given at the hearing of this matter, acknowledging that they were untrue or exaggerated.

On some occasions, he blamed his fiancé for certain of his written communications entered in evidence that conflicted with his oral evidence.

When given the opportunity to explain in his closing argument what reduction he was seeking from the respondent’s legal fees, the applicant advised it would be something less than the $63,606.46 noted above, but that he would leave it up to the court to determine the amount. [ 8 ] The respondent’s basic position is that Rule 71 creates an unfairness for counsel, in that the entire billing history of a solicitor- client relationship on a single matter can be opened up for examination simply by an application being filed by the client within six months of receipt of the final bill.

The lawyer is then put to the task of justifying long-forgotten bills for which the client never once complained until after receipt of the final bill. This is especially concerning on litigation files that can take many years to resolve or proceed to trial. That such an application might involve subsequent complaints over the minutiae of such bills, or over trivial amounts, exacerbates the situation. That is the case here, with 21 statements of account having been issued over the life of the file.

That being said, the respondent’s position is that her bills were entirely appropriate, that in fact she gave courtesy fee reductions on a number of bills to assist the applicant, and that there should be no reduction at all to her bills. [ 9 ] Some basic information about the underlying domestic litigation is required for context. The applicant’s wife commenced the litigation on February 14, 2014, after 28 years of marriage. There were two children of the relationship, both of whom were over eighteen years of age by 2014, but at least one was still considered to be a child of the marriage.

The applicant was initially represented by another lawyer. After an initial case conference was held, the applicant consulted with and retained the respondent in May, 2014. [ 10 ] The issues in the domestic litigation included spousal support, child support, partition and/or sale of the marital home and an accounting of family property. Complicating the family property issue was that the parties were two years apart on their positions on the date the parties separated.

As will be seen, the proceedings to determine the date of separation took on a life of their own. [ 11 ] It is not my intention to outline in this decision every step taken in the domestic litigation. That being said, I will set out the noteworthy events that occurred and which have a bearing on this decision. The notable events are as follows:

a) On April 30, 2014 (prior to the respondent’s retainer by the applicant) the initial case conference took place and a motion date of July 3, 2014, was scheduled. In addition, the case conference judge ordered financial disclosure to be made by the applicant for both potential dates of separation;

b) At the motion hearing on July 3, 2014, the court sat until nearly 6:00 pm, hearing submissions and, ultimately, an agreement was reached with respect to spousal support and child support (the latter not to begin until September, 2014);

c) On October 19, 2014, the applicant told the respondent that he and his wife were going to try to reach an agreement with respect to all matters, and the respondent responded that she will not do any work on the file until she hears more from him. At that point, there was

an approximate eight month hiatus in the legal proceedings;

d) With no agreement reached, the examinations for discovery of the parties were conducted on multiple days in July and September, 2015;

e) Due to the positions of the parties on the separation date, the issue was severed, and a trial scheduled to proceed for one week from October 19 to 23, 2015. This turned out to be not nearly enough time for the trial to conclude and it was adjourned to the further dates of April 21 to 27, 2016. At the conclusion of the evidence on those dates, there was not enough time for argument so a further half-day of June 30, 2016, was scheduled for argument. Counsel then ran out of time to complete oral argument on that date, and written argument was directed.

It appears that the final written argument was submitted by January 30, 2017. The decision of the judge was reserved and rendered in writing on June 11, 2018 ( McMillan v. McMillan , 2018 MBQB 96 ), with the judge determining that the date of separation was November 19, 2013. The applicant had argued that the date of separation was November 16, 2011, and was, thus, unsuccessful on the issue;

f) During the approximate 32 month period over which the separation date trial proceeded, numerous other motions and proceedings were occurring.

These included: a motion by the applicant’s wife for contempt; a motion by the applicant for partition and sale of the family home; a motion by the applicant to suspend the child support order for summer months; a motion by the applicant’s wife to increase spousal support, postpone disposition of the family home, amend her petition for divorce and for the applicant to make an interim equalization payment; a motion by the applicant’s wife to adjourn the hearing date; and a motion by the applicant to suspend maintenance enforcement.

Ultimately, the motions made their way to a hearing before a judge on May 8, 2017, at which the applicant was substantially successful on all motions. The applicant and the respondent sought solicitor and client costs relating to these proceedings against the applicant’s wife and her counsel and were ultimately successful in being awarded $70,000.00 in solicitor and client costs for these interim proceedings. The decision on costs was delivered by the judge on December 15, 2017;

g) Costs of the separation date trial were later awarded on November 13, 2018 by the trial judge in favour of the applicant’s wife in the amount of $35,000.00;

h) In 2019, the family division’s current case flow system was implemented, such that trial dates were required to be set at the next court appearance. On October 11, 2019, trial dates were scheduled for March 2 to 5, 2021, and judicially assisted dispute resolution (JADR) was requested;

i) Directions were given in the JADR process to prepare certain documents, including the respective comparative family property statements (which had not been prepared previously as the separation dates had not been determined until the trial had been concluded) and JADR briefs. As the JADR date approached in the late summer of 2020, there was a breakdown in confidence between solicitor and client and, ultimately, the respondent made a motion to withdraw as counsel on September 30, 2020. The order allowing the respondent leave to withdraw as counsel was granted on October 14, 2020.

The applicant then proceeded on a self-represented basis in his domestic litigation. ISSUES FOR DETERMINATION I. Deferred fees from trial in the amount of $31,442.25 [ 12 ] As noted above, the issue of date of separation was severed from the other issues in the litigation and proceeded over a 32 month period from beginning of the trial to the release of the written decision. The first week of trial ended on October 23, 2015.

The continuation of the trial was scheduled for April 21 to 27, 2016, roughly six months after conclusion of the first week of trial. [ 13 ] With an adjournment of that length of time between trial dates, the respondent was required to prepare again for trial continuation. She requested and received permission from the applicant to order transcripts of the first week of trial to assist with preparation. At the conclusion of the second week of trial in April, 2016, there was no time for counsel to provide oral argument to the court.

A half day of oral argument proceeded on June 30, 2016, but did not allow enough time for completion of argument, so written argument was directed.

Over the next six months, ending in January, 2017, various deadlines were set for written argument from both sides of the dispute. [ 14 ] In short, it would be a significant understatement to say the hearing of the separation date matter went far beyond what was expected by the parties, in respect of both time and legal fees incurred. [ 15 ] After the conclusion of the evidentiary portion of the separation date trial, on June 10, 2016, the respondent sent a letter to the applicant stating the following: Enclosed please find our Statement of Account for services rendered.

In consideration of the cost of this matter, I have charged you for less than one-half of my preparation in advance of the continuation of the trial. I am sure you can appreciate that, after a 10-month intermission, I essentially had to re-examine and re-prepare the case. Having said that, your circumstances are extraordinary and the delay caused by the court system was devastating. If we are successful, I will re-visit these charges in discussion with you. You have authorized the request for a transcript of Maggie’s evidence at trial. I will send you that invoice upon receipt.

Counsel appears to be resisting the scheduling of a hearing for partition and to eliminate child support on an interim basis. Accordingly, after having made the request, I have prepared a Requisition to bring the matter before the court, yet again, to

schedule time for a hearing. Thank you for your attention to the within. [ 16 ] The statement of account attached to the letter billed for 50.5 hours of the respondent’s time, between April 24, 2016 and June 9, 2016, at the hourly rate of $350, for total fees of $17,675. With taxes and disbursements, the bill totaled $20,598.00.

As noted in the cover letter, this was for less than one-half of the respondent’s recorded time in preparation for trial. [ 17 ] Thereafter, when issuing further statements of account, the respondent’s accompanying cover letter contained a reference to the legal account that was essentially set to the side to await further discussion.

On October 5, 2016, and December 15, 2016, the cover letters indicate that the respondent “continued to withhold issuing the account that we discussed following the trial, so that we can discuss same at the conclusion of this matter”. [ 18 ] On July 12, 2017, the cover letter accompanying a further interim statement of account contained a more expansive description of what was being “withheld”. It stated the following: Enclosed please find our Statement of Account for services rendered from June 2016 to date.

This statement is for $38,190.72 plus the unpaid balance of $1,749.49 from our previous account, for a total of $39,940.21. I have continued to withhold issuing the account that we discussed following the trial, so that we can discuss same at the conclusion of this matter. Specifically, the amount I have not billed you for as yet covers the periods from April 19 th to April 24, 2016, from September 13 th to September 16, 2016, and from January 25 th to January 29, 2017. The total hours not billed are 79.5, for the sum of $27, 825.00. In the meantime, while we await Mr.

Justice Doyle’s decision, we would appreciate your attention to the enclosed account. Thank you. [ 19 ] This was the first time the trial fees that were set aside and not billed were quantified for the applicant. As noted in the letter, it was 79.5 recorded hours at $350 per hour, for total fees of $27,825.00. With taxes included, the total amount was $31,442.25. The letter also defines the time periods over which this deferred time was recorded, being April 19-24, 2016; September 13-16, 2016; and January 25-29, 2017.

These time periods correspond with trial preparation for the second week of trial and the subsequent time required to draft the written argument required by the court post-trial. [ 20 ] The respondent says that, despite the reference to the deferred fees in the above-noted correspondence, and in telephone conversations with the applicant during that period of time, never once did the applicant complain about or question the deferred fees. The reason, she says, is that her handling of the fees in that fashion was for his benefit.

The alternative would have been for her to send a bill for the entire amount of her recorded time when it was incurred. The respondent says she was mindful of his financial situation, and thought it was possible that he would be recovering costs from his wife at a later date, at which time the deferred fees could be billed. [ 21 ] As noted earlier, an award of costs of $70,000.00 in favour of the applicant was made by the motions judge on December 15, 2017. The costs were ultimately paid by the applicant’s wife in or about April, 2018.

With a significant costs award then available to the applicant, the respondent wrote to him on April 11, 2018, stating the following: I have enclosed our Statement of Account for which some explanation is necessary. First, this account includes all services provided subsequent to our last account, issued July 12, 2017. The amount of fees respecting the interim variation (and our costs motion) totals $16,310.00. With taxes and disbursements, this total $19,301.56.

Previously I have explained to you that the bill for work associated with the trial continuation has not been issued as an accommodation to you for the delays of the court system and the additional unanticipated work required to complete the trial. The amount that was put to the side was $27,825 which, with taxes, totals $31,442.25. For your information, I enclose a detailed fee statement for that work.

As a further accommodation to you, on the enclosed Statement of Account I have billed one-half of the fees incurred for the trial ($27,825 ÷ 2 = $13,912.50, with taxes = $15,721.13) in partial satisfaction that part of the work on the trial continuation.

The total of $34,983.14 has been paid by a trust transfer from the $70,000.00 payment of costs, and our trust cheque in the amount of $35,016.86 is enclosed. If you have any questions please do not hesitate to call. [ 22 ] The respondent says that although she could have billed the entirety of the deferred fees at that time and have them paid with the costs award, she wanted the applicant to feel the benefit of the costs which had been awarded after a lengthy litigation battle with the applicant’s wife, in which the wife’s positions were almost wholly dismissed.

The respondent says she discussed this with the applicant at the time and he was happy not to be billed the full amount of the deferred fees. [ 23 ] With half of the deferred fees then billed and paid, the other half remained deferred. The respondent continued to remind the applicant of this in written correspondence.

For example, in her letter dated August 19, 2020, the following statement was included: I would remind you that one-half of the $31,442.25 fees for work associated with the trial continuation has still not been issued as an accommodation to you for the delays of the court system and the additional unanticipated work required to complete the trial. The amount that was put to the side and not billed was $15, 721.13. [ 24 ] The solicitor-client relationship came to an end on October 14, 2020, when the respondent was granted leave to withdraw as the applicant’s counsel.

When turning over the applicant’s file to him, the respondent sent a final bill dated October 29, 2020, which included the second half of deferred fees. The cover letter for the bill stated the following: . . . In that regard I have attached our Final Statement of Account, which includes the following: 1. The amount outstanding from the Statement of Account issued August 19, 2020; 2. A small administrative fee for the preparation of your file; and 3. the (sic) second one-half of the fees respecting the trial which were, by agreement, not billed until the conclusion of my services.

You will recall that one-half of these fees were billed to you on April 11, 2018 upon payment to you of the interim costs. [ 25 ] As with his position on all issues, the applicant’s position on the deferred fees is to take a scatter-shot approach. He says that there was duplication as between the deferred fees and the actual fees charged by the respondent for trial. At the formal hearing of this matter, this was demonstrated by the respondent to be incorrect. He says that he did not know the amount that had been set aside by the respondent as deferred fees.

While this was true at the time he first received notice that more than half of the fees were being deferred, by July 12, 2017, he was fully aware of the amount of the deferred fees. He says that he did not know what time entries supported the deferred fees. Again, while this was true initially, by July 12, 2017, this was known to him.

He says he should not have been charged the deferred fees as his position was unsuccessful on the separation date trial, as though the respondent had agreed to some type of contingency arrangement for fees. [ 26 ] The problem with all of these positions, among other things, is that none of them were raised by the applicant at the time in 2016 and 2017. When the respondent told the applicant on or about June 10, 2016, that she was then billing him for less than half of her preparation time, this was clearly not for her benefit. It was for his, for the reasons set out in her letter.

She then applied the same reasoning to her upcoming billing for written argument relating to the trial, leading to the deferred amount being $27,825.00 plus taxes. Did the applicant complain at the time? Of course not, as the alternative would have been for him to find that amount of money to pay her at the time. Did he complain when the $70,000.00 costs award was received and she then only billed him half of the deferred fees? Of course not, as the alternative would have been a much smaller amount of costs paid to him after application of the full legal fees then owing.

The respondent says the applicant was delighted when she made those two decisions for his benefit, and I believe that to be true.

I find it disingenuous for the applicant to take the position years later that he should not be responsible for the respondent’s work done on his behalf, when he took no such position at the time, and in fact benefitted from the respondent’s generosity in deferring the fees to minimize the immediate effect of the separation date trial that got out of control, and to allow him to see more benefit when he was rewarded with a very significant interim costs award. [ 27 ] In my view, the respondent was transparent with the applicant with what was being done at the time, fully disclosing to the applicant that she had outstanding legal fees not being billed at the time, but which were not being forgotten and would be addressed at a later date.

The respondent was being more than fair to the applicant at the time with this plan of action, as she was concerned that the additional time and expense involved with the trial was causing cash flow problems for the applicant in the short term. [ 28 ] I conclude that the deferred fees were properly charged by the respondent to the applicant and there will be no reduction of the respondent’s bills on this account. Any other issues raised by the applicant relating to these fees will be dealt with below in the “Overworking the file” section. II.

Fees related to a delay in the proceedings as a result of a 10-month delay in attending case conferences

[29] This complaint relates to the time period of 2016-2017. At the same time that the parties were completing written argument forthe separation date trial, other motions had been filed and needed scheduling. One such motion was the applicant’s motion for partitionand sale of the family home, in which the applicant’s wife was residing. The respondent’s office scheduled the motion for hearing, butfailed to

schedule it before the seized judge. This was pointed out and corrected by the case conference judge, but there was a delaybetween the originally scheduled date and the rescheduled date (closer to six months than the 10 alleged by the applicant).

Therescheduled date was the date on which the judge heard all of the outstanding motions and the applicant was substantially successful onall matters (May 8, 2017). [30] The argument made by the applicant is that if the respondent had properly scheduled his motion date in the first place, he wouldnot have endured the significant legal procedures which then occurred at the insistence of his wife and her counsel over the ensuing sixmonth period.

As noted earlier, the applicant’s wife filed many of her own motions during this same time frame, and there were anumber of court appearances, affidavits filed, and cross-examination on affidavits conducted during this period. According to theapplicant, none of this would have happened if his motion had been properly scheduled in the first place. [31] I find this argument of the applicant to be speculative in the extreme.

It requires the court to conclude that he would have beensuccessful on his motion before the judge on the originally scheduled date, and that success would have caused the applicant’s wife toabandon all of the other motions she was pursuing at the time. This is a fanciful position.

The applicant’s wife and her counsel wereconducting the litigation as a full-time battle (as was the applicant on some issues such as the separation date), and the thought thatsuccess on one motion would have dissuaded such activity defies common sense, with hindsight knowledge of how the litigation wasconducted (about which more will be said in the “Overworking the file” section). [32] The other problem with the applicant’s position on this issue is that a lawyer’s fee assessment is not a replacement for anegligence action.

The role of the court is to determine if the fees charged were fully disclosed, fair and reasonable. It is not to assessdamages in favour of the applicant on the basis of allegations that the respondent was negligent. As noted in Friesen v. Bennell, (MB KB), [1999] MJ No 297, 139 ManR (2d) 119 (MBQB) at paragraph 8: 8 The lawyer's fee assessment procedure is not intended to provide relief against any perceived negligence, deceit, fraud or lack of moralintegrity, or to recompense for alleged emotional or financial abuse. These are all issues which must be addressed in other arenas.

Thefocus is the fee charged and account billed the client. [33] The respondent fully admits that a mistake was made in scheduling the applicant’s motion. But the respondent’s position is thatit was to the applicant’s benefit to have all the motions heard together at the same time for strategic reasons, as it allowed the judge toconsider the poor litigation behavior of the applicant’s wife and her counsel, and decide the motions accordingly. This, says therespondent, led to the judge assessing $70,000.00 in costs against the applicant’s wife.

In all the circumstances, and once again with thebenefit of hindsight, I agree with the respondent’s position. While it is not necessary to do so as I am dismissing the applicant’s claimunder this heading in any event, I think it much more likely that the applicant’s position was strengthened overall by having the motionsheard together, as opposed to having one motion heard earlier in the hope it would cause the applicant’s wife to abandon her well-entrenched litigation strategies.

III. 29.5 hours related to JADR billings [34] Once the trial dates were scheduled for March, 2021, the parties agreed to proceed with judicially assisted dispute resolution(JADR). An initial meeting was held by counsel with the JADR judge on March 6, 2020, and certain directions given by the judge formaterial to be prepared and filed by the parties. The directions given included:

a) the respondent was to work with opposing counsel to complete and file a comparative family property statement by April 30, 2020. This document was required as a result of the Family Division case flow rules which came into effect in 2019, and was not requiredbefore then;

b) the applicant was to disclose his entire Workers’ Compensation Board (WCB) file “as soon as possible”;

c) briefs were to be prepared and filed two weeks prior to the date scheduled for the JADR, which briefs were to include analysis ofspousal support calculations;

d) the applicant, who had by then been on WCB disability for several years, was to provide a list of his attempts to find employment byApril 30, 2020; and

e) each party was to file updated Form 70D financial statements by April 30, 2020. [35] These directions then set two specific timelines for material to be prepared and filed. Most of the directed documents were to becompleted by April 30, 2020. Thereafter, the JADR brief, including spousal support calculations, was to be filed two weeks prior to theJADR. While the JADR was ultimately scheduled for October 14, 2020, there was initial discussion about it being scheduled at the endof May, 2020.

As such, the JADR briefs were filed on May 14, 2020. [36] Upon being presented with the documents required to be produced to proceed with JADR (which documents were also requiredwhen and if the matter proceeded to trial), the applicant pushed back on almost every front. Numerous emails between the applicant andrespondent show requests made by the respondent for documents and resistance by the applicant to provide the documents, or requestsfor explanations as to why the documents were relevant.

This included the WCB file, which the applicant first refused to produce, theninsisted that he would attend the WCB office to copy it himself. When he provided the file to the respondent, it had not been copiedproperly, and the process had to start over again.

[ 37 ] In the midst of the preparation of documents for the JADR, attempts at settlement were being made. On April 17, 2020, the applicant wrote a letter to the respondent containing a proposal to be presented to his wife, supported by references to case law which he (or his fiancé) had found. Many of the positions presented were unsupported by the law. The respondent was then required to correspond in great detail with the applicant to dissuade him from some of the viewpoints underlying his position, and correct his case law research.

The email contained 12 different points, but I will only reproduce a portion of it. Among other things, she stated the following: 1. Your proposal for initial resolution reflects a lack of understanding of the challenges we face. Maggie is not in any way responsible to answer to you for money that you paid to her either before or after separation. Abandoning such a claim is meaningless and I would never propose such a thing. Neither is there anything significant to relinquish in terms of personal property in the house. The availability of an appraisal at this stage is long past.

The only relevant vehicles are those at the state of separation. Again the cost differential in the scheme of things is minimal. . . . . . . Finally, you seem to feel compelled to educate me on the topics and argue your position to me. I don’t take offence at that. However, there are two points to be made on this. If you think you are saving yourself legal fees, you are wrong. To the contrary, I am obliged to respond in some detail and that takes some time. I a now providing a much more detailed response than I would ever be inclined to otherwise provide.

If I don’t respond, then you would have good cause to complain. So, as I said, I have no choice in the matter. Secondly, if you believe that I am incompetent or ill-informed on these issue, then you should find alternate legal counsel. It does neither of us any good to have a conflicted relationship lacking in confidence. Please consider your position on this and let me know very promptly. This is an expensive and difficult process and you should not continue with counsel that you do not trust in any respect. [ 38 ] It was at this point in time that the solicitor-client relationship began to fray.

A few weeks later, the applicant again presented a settlement position for the respondent to put forward, and the respondent responded on May 7, 2020, including the following: You keep on referring to the dissatisfaction of your married life and her choice of work. I sympathize, but where you see indolence, the court sees reliance. None of your arguments will hold any sway and if you rely on them you will only annoy the court who will likely see you as a chauvinist. The marriage relationship is considered an equal partnership regardless of what she did during the time you were together.

What a court will perhaps not say, but undoubtedly conclude, is that if the relationship was not consensual then you should have left earlier. I don’t think you will be happy with the spousal support that the judge recommends. It could well be a lot higher. . . . Your complaints about her money in 2011 are entirely irrelevant to this process and you have to let go of those arguments. As far as the court is concerned you were still married. You weren’t giving her anything. You were sharing your life. Please don’t focus on this or her vengeful behaviour. Item by item is not the way to analyze this.

I think it is time for you to be done with this and move on. The legal fees are killing you. . . . As always, I will take your instructions. But I want you to know that I disagree with the direction you are taking. [ 39 ] Two statements of account were issued during this timeframe. The first, dated April 30, 2020, had 27.7 hours of recorded time between January 21, 2020, and April 29, 2020, with total fees of $11,035.00 plus taxes and disbursements. The time entries are dated and reasonably detailed.

It is clear that the tasks undertaken related to preparation for and attendance at the first JADR meeting, reviewing and preparing family property accounting materials, communication with opposing counsel, many communications with the applicant, including persuading the applicant to produce certain documents and correcting his positions as noted earlier in this section. In large part, the focus of the time recording is the disclosure of family property documents and preparation of the comparative family property statement.

Roughly 8.7 of the hours recorded related to communication with the applicant and reviewing material provided by the applicant. I find nothing untoward about this bill, bearing in mind that there was significant pushback from the applicant on much of what was required to be done during this time.

As noted by the respondent in her communication to him, he was not saving himself in legal fees by doing lay research and presenting legal positions for her consideration, as she was required to correct his assertions in some detail during this time period. [ 40 ] The second statement of account is dated August 19, 2020, and has 29.5 recorded hours between May 1, 2020, and August 19, 2020, with total fees of $11,800 plus taxes and disbursements.

The account contains a courtesy discount of $2,950, such that the total fees billed to the applicant were $8,850 plus taxes and disbursements, for a total bill of $10,317.36. Once again, the time entries are dated and reasonably detailed. All of the time was recorded in May, 2020, when the JADR brief was being drafted. Approximately 18 hours of the recorded time relates to drafting and revising the JADR brief. [ 41 ] It is this statement of account that is said by the applicant to be “double-billing” for the JADR.

It was not adequately explained by the applicant how it is double-billing, when the recorded time is for different dates and different tasks. The first statement of account dealt primarily with disclosure of family property documents, including the WCB file, settlement discussions and preparation of the comparative family property statement. The second statement of account dealt with further settlement discussions, spousal support calculations, some communication with opposing counsel and the applicant, and preparation of the JADR brief.

There is no double- billing as between the two accounts. [ 42 ] The applicant corresponded with the respondent by letter dated August 30, 2020, outlining concerns with respect to the two statements of account, raising issues such as duplicate billing, the number of hours recorded by the respondent for research, preparation

and review of documents, among other things. It is this letter which cemented the breakdown of the relationship between the parties. A further exchange of correspondence did not resolve their issues, and the respondent’s motion to withdraw as counsel followed soon thereafter. [ 43 ] If I were to interpret the applicant’s complaint about the JADR billing as a complaint that too much time was taken for preparation of the JADR brief on the second account, I would be inclined to agree. Eighteen hours is a great deal of time to prepare a JADR brief.

If the respondent had not given a courtesy reduction on that bill, I would have been inclined to reduce the fee on that statement of account. But the respondent voluntarily reduced her fee by $2,950, which lowered the fee portion by 25 percent. Put another way, it reduced her time on the statement of account by almost 8 hours. In my view, that was an appropriate reduction in the circumstances. I would make no further adjustment to these two statements of account. IV. Overworking the file [ 44 ] This is the final overarching complaint by the applicant.

He contends that the respondent spent far too much time on this file, having regard to the contested issues between the parties, and the results obtained. Much of it relates to the complaints set out in paragraph 2 of this decision, and the overriding theme is that the respondent got into a war with opposing counsel, failed to control opposing counsel or had excessive animosity with opposing counsel. [ 45 ] There is no doubt that this was difficult and vigorously contested family litigation. One does not get to choose their opponent on a family law file, nor do they get to choose their opponent’s lawyer.

Two sides need to agree to reach a settlement, one cannot be forced on the other. In this case, both sides had successes and failures in the various interim proceedings. The applicant had significant success on the various interim motions filed by him and his wife throughout the proceedings. This is reflected in the solicitor and client costs award of $70,000.00 granted in favour of the applicant.

The applicant failed entirely on the date of separation trial, and not only incurred substantial legal fees in relation to that lengthy proceeding, but was responsible for payment of costs to his wife of $35,000.00. [ 46 ] If the applicant’s wife had been more reasonable on the interim motions, the applicant’s legal fees would have been far less. Her inability to do so, cost her $70,000.00 payable to the applicant. If the applicant had been more reasonable regarding date of separation, he would have saved himself substantial legal fees and $35,000.00 in costs. But neither of those things happened.

Parties to litigation makes these decisions every day, and if they make decisions that are unreasonable and not accepted by the court, they will pay in legal fees and they will pay in costs. How that is the fault of the lawyer is beyond me, unless the lawyer counselled the party to take unreasonable positions. Even if so, that is a matter to be considered in another venue, not in a lawyers’ fee assessment. [ 47 ] The applicant placed great reliance on a short statement made by the judge during the motion hearing on May 8, 2017.

A transcript of that hearing (along with many other transcripts of hearings, examinations and cross-examinations) were placed in evidence before me. On page 61 of the transcript, the judge stated the following at lines 24-26: THE COURT: Only if it’s relevant. I don’t intend to get into the battle between you and Ms. Knight. The constant ongoing battles that the two of you have. [ 48 ] The above-noted are three lines from a 209 page transcript of a court proceeding.

If one were to fully read the transcript, as I have done, it would be noted that the vast majority of the criticism levelled by the judge was at counsel for the applicant’s wife, not at the respondent. Later, on December 15, 2017, the judge gave reasons for decision on the issue of costs, which were sought on a solicitor and client basis against the applicant’s wife and her counsel. The judge concluded her reasons with this comment: In this case, Ms. Knight’s bad faith is not proven. I am declining to order costs against her personally.

But the court remains concerned, and the elevated costs are intended as both a rebuke to Ms. Knight and her client and as compensation to Mr. McMillan for the unnecessary and disproportionate legal costs that he has had to incur. [ 49 ] I further note that in the transcript of the hearing before the same judge on July 3, 2014, the judge requests that the sheriff be brought into the courtroom, apparently due to excessive interruptions by counsel for the applicant’s wife. [ 50 ] I point these incidents out as I find the criticism levelled by the applicant at the respondent to be substantially misplaced.

It is clear, if one reads all the transcripts, that the applicant’s wife and her counsel animated many of the disputes between the parties, and were substantially unsuccessful in doing so (save for the separation date trial).

To point to one statement made by the judge which might implicate the respondent, when it is so clearly apparent that the majority of the wrongdoing originated on the other side of the dispute, is cherry-picking to the applicant’s benefit, ignoring the bulk of the evidence. [ 51 ] The over-riding theme of the applicant’s complaint about overworking the file is that the respondent failed to control opposing counsel. What the applicant seems not to understand is that opposing counsel is not under the respondent’s control.

The respondent cannot stand at the courthouse registry counter and bar opposing counsel from filing motions. The respondent cannot force opposing counsel (and client) to take more reasonable positions. The respondent cannot force opposing counsel to stop sending irrelevant and continuous correspondence. None of that was in the respondent’s control. What was in the respondent’s control was to properly put the applicant’s evidence and positions before the court in dealing with the various interim matters, and to seek costs when the opponent’s positions are dismissed by the court.

All of that was done, and the applicant received a very significant solicitor and client costs award in doing so, one which I would suggest is very rare for interim proceedings in this Province. [ 52 ] As noted earlier, this was seriously contested litigation. Such litigation is expensive. Both sides bear some responsibility for the excessive costs, as each was unsuccessful on major issues in the litigation. Over the course of the six years of the respondent’s representation of the applicant, legal fees in the amount of $224,700.00 were billed, exclusive of disbursements and taxes.

Over the same period of time, the respondent provided courtesy discounts in the amount of $27,825.00 to the applicant. Of the fees charged, at

least $70,000.00 was recovered from the applicant’s wife in costs paid to the applicant. The applicant has chosen to pick apart the minutiae of each of the 21 bills, looking for a reduction of a few dollars here and there, and perhaps more substantial reductions in other areas.

In my view, the courtesy reductions provided by the respondent amply compensate for any of the trivial amounts raised by the applicant after his post-mortem review of his file received from the respondent in 2020, and I have dismissed the substantial reductions sought by the applicant earlier in this decision. [ 53 ] I am upholding the respondent’s accounts in full. [ 54 ] The respondent is entitled to costs of the lawyer’s fee assessment proceeding. Should there be any difficulty in resolving quantum of costs, an appointment for brief submissions may be made. S. D.

Berthaudin Master IMPORTANT NOTICE THIS REPORT BECOMES AN ORDER OF THE COURT OF KING’S BENCH ON CONFIRMATION. A REPORT WILL BE AUTOMATICALLY CONFIRMED UNLESS CONFIRMATION IS OPPOSED. YOU ARE RESPONSIBLE FOR INFORMING YOURSELF ABOUT THE CONFIRMATION PROCESS WHICH IS GOVERNED BY KING’S BENCH RULE 54.06(2) AND RULES 54.08 THROUGH 54.10 Date: 20230119 Docket: FD 21-01-26952 (Winnipeg Centre) Indexed as: McMillan v. Paul et al Cited as: 2023 MBKB 11 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) DAVID IAN McMILLAN, ) ) ) David Ian McMillan Self-represented applicant, ) )

-and- ) ) ) ) CARLA B. PAUL, CARLA PAUL LAW CORPORATION, LEVENE TADMAN GOLUB LAW CORPORATION, respondents. ) ) ) ) ) ) Carla B. Paul Self-represented ) ) REPORT ISSUED: January 19, 2023 ) ) ) DEEMED CONFIRMATION DATE: ) February 23, 2023 ) MASTER BERTHAUDIN E R R A T U M Please note that I have made the following changes to the report delivered in this matter on January 19, 2023: 1. Page 15, paragraph 27 – The word “respondent” in the 5 th line is changed to “applicant”. 2. Page 24, paragraph 44 – The word “applicant” in the 2 nd line is changed to “respondent”. 3.

Page 28, paragraph 52 – The word “respondent” in the 7 th line of the paragraph is changed to “applicant” and in the 9 th line of same paragraph the word “respondent” is changed to “applicant”. Please replace the existing pages 15, and pages 24 through 28 of the report with the attached revised pages. DATED this 27 th day of January, 2023 ___________________________________ S. D. Berthaudin Master