McCullough O'Connor Irwin Plaintiff v. Millennium Financial Group Inc., 2003 BCSC 480

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: McCullough et al v. Millennium Fin. GroupInc., 2003 BCSC 480 Date: 20030401 Docket: S031509 Registry: Vancouver Between: McCullough O'Connor Irwin Plaintiff And Millennium Financial Group Inc. Defendant Before: The Honourable Mr. Justice Hood Reasons for Judgment Counsel for Plaintiff J. Forstrom No One appearing On Behalf Of The Defendant Date and Place of Hearing: March 24, 2003 Vancouver, B.C. [1] On March 21, 2003, the Plaintiff law firm applied for a Garnishing Order Before Judgment in this action against its formerclient.

The Deputy District Registrar rejected the application on the basis "I cannot find any agreement based on fixed rates as set out inEades v. Kootnikoff". He then referred the matter to this Court pursuant to Rule 53(5.1). The Plaintiff renews the application beforeme. [2] I observe that I concluded that what the Learned Deputy District Registrar was saying was that the Plaintiff failed to demonstratethat the Retainer Agreement provided for a fixed or ascertained fee or a precise arthitmetical method of calculating it, and thataccordingly, the claim was not for a liquidated amount.

A perusal of Eades, and a consideration of Counsel's advices, satisfies me thatmy

interpretation is correct.

I will observe also that I am in agreement with the Deputy District Registrar's decision. [3] The narrow and only issue raised before me is whether the Plaintiff law firm's cause of action is for a debt for whichgarnishment proceedings may be taken pursuant to the provisions of s.3(2) of the Court Order Enforcement Act, R.S.B.C. 1996, C.78;more particularly, whether the true nature of the debt is a liquidated amount, that is, that it has been ascertained or is capable of beingascertained as a mere matter of arithmetic. [4] Counsel advised me that he had not had the opportunity to prepare a proper Brief because he had just learned of the problemshortly before he appeared before me.

However, I was referred to, and I have considered, the following cases: the decision of Mr. JusticeShaw in Eades v. Kootnikoff (1995) (BC SC), 13 B.C.L.R. (3d) 182; the decision of Master Horn in Hayes DebeckStewart and Little v. Nikka Developments Ltd., [1996] B.C.J. No. 2466; the unreported decision of Master Patterson in David Hastingset al v. O'Neill Hotels and Resorts Management Ltd. et al, (BC SC), [1999] B.C.J. No. 432; and the decision ofFraser, J. in Thom v. Grainger, [1999] B.C.J.

No. 3124. [5] I have perused the Statement of Claim in the action, although it is not attached to the supporting affidavit of Mr. McCullough,who is a partner in the Plaintiff law firm.

It is asserted in para. 3 of the Statement of Claim that the Defendant retained the Plaintiff lawfirm to provide professional services; that the terms of the Retainer Agreement were established partly in writing, and partly orally, andby the conduct of the parties; that they included that the Plaintiff would render Statements of Account to the Defendant for fees forservices rendered, and that the amounts charged in each Statement of Account would be due and payable by the Defendant when theaccount was rendered.

[6] In his affidavit Mr. McCullough deposes: 3. The nature of the cause of action for which this action is brought is for debt in the principal amount of $27,972.35 plus accruedinterest, due and owing to the Plaintiff pursuant to a Contract between the Defendant and the Plaintiff under which the Defendantretained the Plaintiff to provide professional legal services to the Defendant, and agreed to pay the amounts invoiced by the Plaintiff forsuch services. [7] Mr.

Forstrom submitted that the terms of the Retainer Agreement gave the Plaintiff Solicitors a discretion in fixing the fees inaccordance with the criteria set out in Yule v. City of Saskatoon No. 4 (1955), (SK KB), 16 W.W.R. 305 (Sask. Q.B.),affirmed (1955) (SK CA), 17 W.W.R. 296 (Sask. C.A.); and that the client agreed expressly or by implication to paythe fees so fixed by the Solicitors. I do not have a copy of the Retainer Agreement. Counsel said that it was not required that it becontained in the materials before me. [8] Mr.

Forstrom relies on Master Horn's decision in Hayes Debeck, supra, wherein the Plaintiff accounting firm sued its client forprofessional services and was successful in obtaining a Garnishing Order, and the client's application to set aside the Order wasdismissed by Master Horn. Counsel submitted that the case at Bar is on all fours with Hayes Debeck. It is, he said, a case of a debtarising out of a contract, an amount that can be quantified by a mere matter of arithmetic. It is seen that I am unable to agree with thissubmission. [9] Hayes Debeck is an interesting case.

I adopt Fraser J.'s description of it in Thom supra, at para.6; "[t]hat was a case in whichprofessional services rendered were specified to have a precise value and Master Horn felt that this amounted to a liquidated claim and,therefore, properly supported a Garnishing Order". The case is distinguishable from the case at Bar. [10] In Hayes Debeck Master Horn distinguished Eades, supra, a case which I find to be most helpful. He also dealt with some othermatters which I need not address, and which should be left for another day if this must be done.

They include what should be containedin the affidavit in support of a Garnishing Order, pertaining to the nature of the amount claimed.

I will only say that in my view, giventhe Court's experience in many instances when the Deponent swore that a sum was due and owing when in fact the sum was not aliquidated amount, the better practice would be for the affidavit to disclose the true nature of the sum claimed to enable the Court toconclude that it is the proper subject of a Garnishing Order. [11] I do not think that it is an answer to say that it is up to the Defendant, if and when applying to set aside a Garnishing Orderobtained ex parte, to establish that the claim is for an unliquidated amount.

In my view, it is for the Plaintiff to establish entitlement tothe Order which can only be made with regard to a liquidated amount. An amount can only be "justly due and owing, after making alljust discounts" if nothing further is required to establish the amount.

If something further is required, an investigation, a weighing ofevidence, an opinion and so on, something more than a simple mathematical computation, then the claim does not come within theprovisions of the Act. [12] In the case at Bar the Plaintiff seemingly has established an agreement to pay a reasonable remuneration, one based on the Yuleprinciples, for services rendered. And a simply arithmetical calculation will not disclose the amount of the claim. It is dependent on anassessment or opinion as to whether those principles have been met.

I am unable to say with any degree of certainty what value a TrialJudge would place on those services. A Garnishing Order therefore should not be made. [13] The application is dismissed. “S.W. Hood, J.”The Honourable Mr. Justice S.W. Hood