Koftinoff v. Harding, 2024 BCSC 107

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Koftinoff v. Harding, 2024 BCSC 107 Date: 20240123 Docket: S245828 Registry: New Westminster Between: Joseph Koftinoff Client And Thomas Harding Law Corporation Law Firm Before: Registrar Gaily Reasons for Decision Client, Joseph Koftinoff, in person: J. Koftinoff Counsel for the Law Firm, Thomas Harding: T. Harding Place and Date of Hearing: New Westminster, B.C. December 7, 2023 Place and Date of Judgment: New Westminster, B.C. January 23, 2024 Table of Contents Background and

Summary of LPA Proceedings .. 5 The CFA .. 7 The Work Performed During the Retainer .. 10 The Termination of the CFA .. 14 Discussion and Legal Principles .. 20 The “bills” 20 Did Mr. Harding Terminate the CFA Without Cause? . 22 Applicable Legal Principles . 24 (

a) The Complexity, Difficulty or Novelty of the Issues Involved . 25 (

b) The Skill, Specialized Knowledge and Responsibility Required of the Lawyer 25 (

c) The Lawyer’s Character and Standing in the Profession .. 26 (

d) The Amount Involved . 27 (

e) The Time Reasonably Spent 28 The Time Spent on the Tort Action .. 28 The Time Spent on the MV Action .. 30

Summary of Time Reasonably Spent 33 (

f) Whether the Hourly Rate was Reasonable . 33

(

g) The Importance of the Matter to the Client 34 (

h) The Result Obtained . 34 Disposition .. 35 Costs .. 36 Introduction [ 1 ] Joseph Koftinoff (the “Client”) commenced this proceeding under the Legal Profession Act , S.B.C. 1998, c. 9 [ LPA ], to review the bills of his former lawyer, Thomas Harding, operating as Thomas Harding Law Corporation. The Client does not deny that in August 2015, pursuant to a contingency fee agreement (the “CFA”), he retained Mr.

Harding to assist him with a tort claim he had commenced in Provincial Court (the “Tort Action”), as well as a claim commenced in Supreme Court for injuries he sustained when he was struck by a motor vehicle (the “MV Action”) (together, the “Actions”). [ 2 ] There is no dispute that through the service of notices of intention to withdraw as counsel dated June 23, 2020, followed by the filing of notices of withdrawal on July 7, 2020 (the “Withdrawal Notices”), Mr. Harding terminated the CFA. The Client asserts that Mr. Harding withdrew “for no reason”. Mr.

Harding did not communicate to the Client the express reason for the Withdrawal Notices, but I have found that the solicitor-client relationship was irreparable before Mr. Harding terminated the CFA. The CFA drafted by Mr. Harding expressly contemplates that if it is terminated by either party, the Client would pay Mr. Harding a “fee based upon the reasonable value of services performed to date” upon “presentation of [Mr. Harding’s] account” (CFA, para. 31). [ 3 ] The Client did not retain counsel after Mr. Harding terminated the CFA and represents himself on the Actions, and at the LPA review hearing.

In early May 2022, Somers Poulin & Hall (“SPH”), counsel retained by the Insurance Corporation of British Columbia (“ICBC”) to defend the MV Action, reached a settlement of the MV Action with the Client, but the settlement was not before me. [ 4 ] On May 10, 2022, nearly two years after he had terminated the CFA, Mr. Harding issued two bills, as that term is defined in the LPA , to the Client seeking $36,937.62 (inclusive of fees, disbursements and applicable taxes) for his work on the MV Action, and $17,217.51 (inclusive) for his work on the Tort Action (together, the “2022 Bills”).

The 2022 Bills are exhibited to the Client’s affidavit made September 8, 2023 (“Client Affidavit #1”) (Ex. B, pp. 22-30). Pursuant to a letter to SPH dated May 12, 2022, Mr. Harding claims a solicitor’s lien of $54,155.13 over the settlement funds. I was advised that SPH will not release the settlement funds to the Client until this LPA review has concluded. [ 5 ] Prior to issuing the 2022 Bills, Mr. Harding provided the Client with two sets of unsigned pre-bills both of which are marked “sample” beside the invoice number. The first set was issued on June 25, 2020, two days after Mr.

Harding served the Withdrawal Notices on the Client, when the Client attended at his office. These pre-bills indicate that the amount owing on the MV Action was $15,972.54, and the amount owing on the Tort Action was $9,442.04 (both amounts include fees, disbursements and applicable taxes) (together, the “2020 Pre-Bills”). The 2020 Pre-Bills are at Client Affidavit #1, Ex. B, pp. 8-21. [ 6 ] Mr. Harding issued a second set of pre-bills to the Client on May 9, 2022, the day before the 2022 Bills were rendered.

These pre-bills indicate that the amount owing on the MV Action had increased to $31,068.15 and the amount owing on the Tort Action had increased to $11,704.44 (both totals include fees, disbursements and applicable taxes) (together, the “2022 Pre-Bills”). The 2022 Pre- Bills are exhibited to Mr. Harding’s first affidavit of justification, made August 2, 2023 (“Harding Affidavit #1) (Ex. 2, pp. 19-48). Mr.

Harding testified that when he issued the 2022 Pre-Bills, he had reviewed the tasks and work product and added in time he had missed on the 2020 Pre-Bills. (The increase in the amounts owing on the 2022 Bills from the 2022 Pre-Bills is “interest on unpaid disbursements (per CFA)” of $5,869.47 for the MV Action, and $5,759.07 for the Tort Action.) [ 7 ] As detailed below, I find the 2022 Bills should be reduced.

Although the Client maintains that the 2022 Bills should be reduced to $0, taking into account all of the circumstances of this case, and considering the factors set out in s. 71(4) of the LPA , I find that a fair fee commensurate with the work performed under the CFA to the date of its termination is $20,000, inclusive of disbursements and applicable taxes, as well as interest. [ 8 ] I have reduced Mr. Harding’s 2022 Bills by more than 1/6 th . Pursuant to s. 72(1) (

a) of the LPA , Mr. Harding must pay the Client’s costs of the LPA review. Exercising my discretion under s. 73(2) (

b) of the LPA , I have summarily determined that the Client is entitled to $1,232.00 for his costs, based on the applicable tariff items under Appendix B of the Supreme Court Civil Rules , B.C. Reg. 168/2009 [ SCCR ] (the “Tariff”) governing party-and-party costs. Background and

Summary of LPA Proceedings [ 9 ] In the summer of 2010, the Client was living in a basement suite in a house in Surrey, which was owned by Kulwant and Gurmit Bachra. On June 6, 2011, the Client, representing himself, filed a Notice of Claim in the Provincial Court, seeking approximately $20,000 in damages for injuries he alleges he sustained on June 7, 2010, when the Bachras assaulted him while preventing him from going into his suite (the Tort Action). Among other things, the Client’s ankle was injured in the assault.

The Bachras retained counsel, Sumandeep Singh, who filed a reply to the Tort Action on June 6, 2012, denying the allegations and counterclaiming against the Client. The Client filed a reply to the counterclaim on June 25, 2012. On the Client’s application, the Provincial Court struck the Bachras’ counterclaim, except their claim for reimbursement of a $50 filing fee with the Residential Tenancy Branch. [ 10 ] On March 6, 2014, counsel with Bronson Jones & Company filed the Client’s MV Action in the New Westminster registry of the

Supreme Court (NW M-159571), seeking damages for injuries he sustained on or about June 18, 2012, when, as a pedestrian, he was hit by a vehicle driven by Ms. Bachra. Both Mr. Harding and the Client testified that at the time of this accident, he was attempting to personally serve Ms. Bachra with documents in the Tort Action and that this accident caused further injuries to the ankle previously injured in the assault. As noted, ICBC retained SPH to represent the Bachras on the MV Action. The Bachras filed their response to the MV Action on April 16, 2014, denying liability.

Counsel at SPH conducted an examination for discovery (“EFD”) of the Client on June 14, 2015, before Mr. Harding was retained. [ 11 ] I discuss the terms of the CFA, the work performed during the retainer, and the circumstances of its termination further below. [ 12 ] On September 2, 2022, the Client filed the appointment in this proceeding (NW S-245828) seeking to review the bills of Mr. Harding, attaching the 2020 Pre-Bills to the appointment. On April 12, 2023, the Client filed a second appointment seeking a review under the LPA (NW S-249127), attaching the 2022 Bills.

On April 18, 2023, Master Keighley ordered that the Client was “at liberty to take out appointments to access Mr. Harding’s account” and that counsel with SPH was “to have access to filed materials” in the LPA proceedings. [ 13 ] On July 5, 2023, the Client filed an appointment setting the LPA review for two hours the afternoon of July 20. Only the Client appeared before me on July 20. I converted the hearing to a pre-hearing conference (“PHC”), and the LPA review was rescheduled to August 9, 2023. I ordered the Client to prepare a written list of objections to the fees sought by Mr. Harding and serve it on Mr.

Harding by July 26 and I ordered that Mr. Harding was to prepare an affidavit of justification and serve it on the Client by August 3. On July 21, 2023, Master Krentz amended Master Keighley’s April 18, 2023 order, confirming that the Client had been granted leave to have both the 2020 Pre-Bills and 2022 Bills reviewed. [ 14 ] When the parties appeared before me on August 9, the hearing was set for 30 minutes as a PHC, and they both disputed proper service of the appointment and compliance with the orders I made at the July PHC. In this second PHC, I ordered Mr.

Harding to prepare a further affidavit of justification, responding to the Client’s objections and exhibiting the material filed in court during the retainer, and to serve that on the Client by August 23. I also granted the Client leave to prepare a further affidavit in response to Mr. Harding’s affidavits by September 8. The Client filed an appointment setting the LPA review for September 22, but it did not go ahead.

On November 28, 2023, the Client filed the appointment setting the LPA review for December 7, 2023 for four hours. [ 15 ] At the LPA review, the evidence before me consisted of the Client Affidavit #1 (to which he exhibited his objections to Mr. Harding’s first affidavit of justification in a document at Ex. A, pp. 1-7) and the Client’s affidavit made September 13, 2023 (“Client Affidavit #2”), in which he responded to Mr. Harding’s second affidavit of justification in a narrative exhibited to it (Ex. B), as well as the Harding Affidavit #1.

The Client also included several affidavits of service in the hearing record. [ 16 ] The Client maintained that Mr. Harding had not complied with orders made in these proceedings, in particular, that Harding Affidavit #1 was not properly filed and served (an unfiled copy was included in the hearing record) and that Mr. Harding’s affidavit made September 11, 2023 (“Harding Affidavit #2”) was not filed and served in compliance with the order I made on August 9.

I directed the Harding Affidavit #2 included in the record despite any alleged irregularity in its filing as it was apparent from the exhibits to Client Affidavit #2 that the Client had received and reviewed it. [ 17 ] Mr. Harding spoke to his affidavits and was cross-examined by the Client. The Client also spoke to his affidavits and was cross- examined by Mr. Harding. Where necessary, I have reviewed relevant pleadings in the related court files. The CFA [ 18 ] The Client testified that when he retained Mr.

Harding in August 2015, the trial of the Tort Action was scheduled in a few weeks and he was desperate for legal assistance. He was referred to Mr. Harding by a lawyer sharing office space with Mr. Harding at the Trial Lawyers Advocacy Group (“TLAG”). At the review, the Client said that he did not really understand the terms of the CFA. He maintains that Mr. Harding forced him to sign the CFA at their first meeting, alleging that Mr. Harding prevented him from leaving by blocking the exit with his chair until he signed the CFA (he also states this in his objections). The Client also alleges that Mr.

Harding refused to represent him on the Tort Action unless he transferred conduct of the MV Action to him, as reflected in the CFA. [ 19 ] Mr. Harding testified he has no recollection of the first time he met the Client, but that it is his invariable practice to review the entire retainer agreement with a prospective client at their first meeting, and he could not recall ever letting a client sign a retainer agreement at their first meeting (also in Harding Affidavit #1, para. 7). Mr.

Harding agreed that he knew the Client was desperate for legal help with the Tort Action when he was retained, and that the Client could only afford to retain him under a contingency fee agreement. Mr. Harding categorically denies that he forced the Client to sign the CFA at their first meeting, or that he refused to assist the Client with the Tort Action unless the Client transferred conduct of the MV Action to him. [ 20 ] The Client, who bears the onus to prove he signed the CFA under duress, did not tender any independent evidence to corroborate his version of the events, neither did Mr. Harding.

Copies of the CFA were exhibited to both the Harding Affidavit #2 (Ex. 1, pp. 4-14) and to the Client Affidavit #1 (Ex. I). The CFA exhibited to the Client Affidavit #1 is not dated and is signed only by the Client; the CFA exhibited to the Harding Affidavit #2 is signed by both parties and dated August 6, 2015. The terms of both are exactly the same. Neither the Client nor Mr. Harding had evidence confirming the date the Client first attended at Mr. Harding’s office. The evidence before me at the LPA review does not satisfy me that the Client signed the CFA under duress. [ 21 ] The CFA is Mr.

Harding’s standard form contingency fee agreement for motor vehicle collision cases; only the client’s name, the scope of work (para. 1), and a retainer amount (if any) (para. 20), differ from one of these retainers to the next, and none of the standard terms were modified by the parties. In para. 1 of the CFA, “scope of work”, the Client confirmed that he had asked Mr. Harding and Mr. Harding had agreed to act for him regarding “1, assault by [Mr.] Bachra & others 2010” and “2, MVC by [Ms.] Bachra 2012”.

The Client’s initials appear by para. 16, “conclusion”, and “$0” is entered for the retainer amount in para. 20.

[ 22 ] The standard terms of the CFA relevant to these LPA proceedings include paras. 11 and 12, which provide that the Client agreed to pay for disbursements (as defined), as well as the applicable taxes on disbursements and Mr. Harding’s fees. In para. 18 of the CFA, the Client agreed that Mr. Harding could “direct other lawyers or legal professionals at the Law Firm” to work on his file, but that if the Client prefers that Mr. Harding alone work on the file, he must “so instruct me [Mr.

Harding] in writing.” Paragraph 24 of the CFA provides that the Client agreed to pay interest “on accounts overdue 30 days at the rate of 2.0% per month, 24% per annum, calculated from the date the account was rendered.” [ 23 ] Paragraph 27 of the CFA states that “lawyers’ fee contracts are covered by the [ LPA ],

Part 8” and Mr. Harding testified that he attaches a copy of the relevant provisions of the LPA to all his retainer agreements. The copies of the CFA attach the former s. 87 of the LPA , “contracts for remuneration”, which was replaced by ss. 66 and 67 of the current LPA , addressing contingent fee agreements. [ 24 ] The CFA addresses the termination of the retainer by either the Client or Mr. Harding in the following paragraphs: 28. I have the right to withdraw as your lawyer, if: A you do not make the payments required; B you have misrepresented or failed to disclose a material fact(

s) to me; C you fail to follow advice; or D continued representation would be unpractical or unethical. 29. I reserve the right not to proceed with the action on your behalf at any time if I determine that your claim has insufficient merit, either in terms of probability of success or in the amount you are likely to recover. 30. You have the right to fire me any time, without cause. 31.

In the event of such termination (by me or by you), you agree to pay me forthwith on the presentation of my account, a fee based upon the reasonable value of services performed to date, which bill I shall have a right to present to the Court forthwith for assessment to be paid immediately after certification. [Emphasis added] 32. Upon payment in full of my final account, I will release the file to you or your new lawyer.

Otherwise, I may retain the file pursuant to my “solicitor’s lien”. [ 25 ] The CFA also provides in para. 36, “you agree that neither you nor I shall settle any claims arising out of this matter without having obtained the consent of the other”, but is silent about whether this clause survives the termination of the CFA. The Work Performed During the Retainer [ 26 ] On August 10, 2015, Mr. Harding’s office filed a notice in Provincial Court setting an application before a judge on August 27, 2015 to have the Tort Action transferred to the Supreme Court.

The basis for the transfer from the Provincial Court was that the injuries sustained by the Client in both the Tort Action and the MV Action are indivisible, that the Client would be applying to have both actions tried together in the Supreme Court, and that the Client’s claim would exceed $25,000. [ 27 ] On August 27, 2015, Provincial Court Judge Gulbransen ordered that the Tort Action be transferred for all purposes to the Supreme Court in New Westminster. Bree Makohn, a lawyer working with Mr. Harding at TLAG, represented the Client at the application, which lasted less than an hour.

No further steps were taken on the Tort Action in 2015. [ 28 ] Mr. Harding attests that his office first requested the Client’s MV Action file from his former counsel on September 1, 2015, but that it was not provided until September 16, 2016, a year later (Harding Affidavit #1, para. 18). Mr. Harding did not exhibit any correspondence exchanged with the Client’s former counsel to confirm this, but both of the Pre-Bills for the MV Action include as disbursements payments to the Client’s former counsel for their disbursements and applicable taxes, totalling $2,112.20.

These disbursements are dated September 10, 2016, more than one year after the Client retained Mr. Harding under the CFA to pursue the MV Action. [ 29 ] On November 5, 2015, Mr. Harding wrote to counsel at SPH advising that he intended to apply to have the Tort Action and MV Action heard at the same time and inquiring if SPH counsel was representing the Bachras on both actions. [1] [ 30 ] Mr. Harding attests that ICBC had offered to settle the Client’s MV Action on December 16, 2015, for $10,000 “old money”, less any

Part 7 benefits paid to date, zero for Tariff items (costs) and 50% of necessary and reasonable disbursements (Harding Affidavit #1, para. 46). Mr. Harding’s evidence was that the 2015 offer was rejected because the Client had been receiving

Part 7 benefits for some three years by December 2015, and if accepted, he would owe money back to ICBC. [ 31 ] On January 13, 2016, counsel at SPH wrote Mr. Harding, advising that they were retained only for the MV Action and that they would oppose an application to have the matters heard together (Antturi Affidavit #1, para. 21; Harding Affidavit # 2, Ex. 10, p. 82) . [ 32 ] On March 11, 2016, Mr. Harding filed a 4-page Notice of Civil Claim in the New Westminster registry (NW S-173818), which transferred and commenced the Tort Action in the Supreme Court (Harding Affidavit # 2, Ex. 2, pp. 15-19) . The Bachras filed their response to the Tort Action on February 28, 2017.

[ 33 ] Mr. Harding attests that he commenced an EFD of Mr. Bachra in the MV Action on February 16, 2017, but that Mr. Bachra claimed he had recently suffered a brain injury and the EFD was adjourned (Harding Affidavit #1, para. 34.c.i). At the LPA review, both Mr. Harding and the Client referred to Arsh Sarkaria, who worked as a paralegal and then a junior lawyer with Mr. Harding and who is fluent in Punjabi, attending an EFD of one or both of the Bachras, but it is unclear which EFD she attended and whether she conducted it. [ 34 ] In the spring of 2017, Mr.

Harding advised the Client to offer to settle the MV Action. An email to the Client dated April 27, 2017, from Ms. Sarkaria discusses a settlement proposal and is exhibited to the Client’s Affidavit #1 (Ex. K). On June 13, 2017, Mr. Harding sent a comprehensive 18-page settlement proposal to counsel at SPH, offering to settle both the MV and Tort Actions for $1.2 million all inclusive (Harding Affidavit # 2, Ex. 5, p. 32-50) .

The settlement offer was rejected. [ 35 ] One year later, on June 14, 2018, the Client’s list of documents in the Tort Action was served on the defendants (Harding Affidavit # 2, Ex. 6, pp. 51-54) . Mr. Harding attests that EFDs of both Mr. and Ms. Bachra in the MV Action were conducted on October 4 and 5, 2018 (Harding Affidavit #1, para. 34.c.ii and ii). [ 36 ] On October 22, 2018, the Client’s trial brief in the Tort Action was filed (Harding Affidavit # 2, Ex. 7, pp. 56-59) ; the Bachras’ trial brief in the Tort Action was filed on October 26, 2018 (Harding Affidavit # 2, Ex. 8, pp. 60-64) .

On November 15, 2018, Mr. Singh conducted a half-day EFD of the Client in the Tort Action, which Mr. Harding attended (Harding Affidavit #1, para. 34.c.iv). [ 37 ] The Tort Action was set for a 7-day trial before a judge and jury, starting on January 14, 2019, but the MV Action had not been set for trial. On November 20, 2018, Mr. Harding and Mr. Singh attended a trial management conference (“TMC”) in the Tort Action before Justice Verhoeven. At the TMC, Verhoeven J. directed Mr.

Harding to bring the application to have both the Tort and MV Actions heard together, serving the materials no later than one week from the TMC. [ 38 ] On November 27, 2018, Mr. Harding filed a 7-page application, returnable on December 20, 2018, seeking an order that the Tort and the MV Actions be heard together pursuant to Rule 22-5 of the SCCR (Harding Affidavit # 2, Ex. 3, pp. 20-25, although page 6 of the original application is not reproduced in the exhibit).

The application was supported by the Client’s affidavit made on November 26, 2018 (Harding Affidavit # 2, Ex. 4, pp. 26-31) . [ 39 ] Counsel at SPH filed a response on December 12, 2018, opposing the application and filing Antturi Affidavit #1 in support (Harding Affidavit # 2, Ex. 9, pp. 65-75) . Paragraph 3 of

Part 4 of the application response indicates that the Bachras were representing themselves on the Tort Action. In para. 45 of

Part 5 of the application response, SPH counsel indicates that Mr. Harding had sought their consent to have the trials heard together on November 5, 2015, January 28, 2016, June 12, 2017 and July 18, 2017, and that each time they had not consented. [ 40 ] Master Caldwell (as he then was) heard the application on December 20, 2018; his order reflects that Mr. Harding spoke to the application and that a legal assistant had attended to advise that opposing counsel was not available to appear on the application.

Master Caldwell ordered that the jury notice be struck and granted the application that the Tort and MV Actions be heard together for a 7-day trial starting January 14, 2019, but his order was “subject to further direction of the Trial Judge … on the basis of counsel available to proceed on that date” (Harding Affidavit # 2, Ex. 11, p. 84) . [ 41 ] The next day, December 21, 2018, SPH filed an application returnable December 27, 2018, seeking to adjourn the trial to a new date to be agreed by counsel (Harding Affidavit # 2, Ex. 12, pp. 85-91) . In support of this application, SPH filed a second affidavit of Ms.

Antturi made December 21, 2018 (Harding Affidavit # 2, Ex. 13, pp. 92-94 , but the exhibits to Ms. Antturi’s affidavit are not reproduced). [ 42 ] Master Caldwell’s order was contingent on the availability of counsel and Mr. Harding testified that SPH counsel had advised she was not available for a trial starting January 14, 2019. On December 21, 2018, Mr. Harding filed a requisition adjourning by consent the trial set for January 14, 2019.

A few weeks later (January 10, 2019), SPH filed a requisition adjourning generally by consent the application that had been scheduled for December 27, 2018. [ 43 ] Counsel at SPH had filed a notice of appeal from Master Caldwell’s order on December 28, 2018, setting the appeal for February 15, 2019. Through a requisition filed on January 28, 2019, the appeal was adjourned to May 3, 2019 by consent. In late April 2019, SPH confirmed that they had abandoned the appeal, which Mr. Harding communicated to the Client later in May 2019. [ 44 ] Mr.

Harding attests that during the retainer, he interviewed and prepared several witnesses for trial, including the Client (Harding Affidavit #1, para. 34.l), but he did not indicate when these interviews took place or their length. Mr. Harding also attests that he spent time reviewing the transcripts of the EFDs conducted before he was retained (of the Client on May 13, 2013, and of Ms. Bachra on December 8, 2016, although I note he was retained on both Actions by this point) (Harding Affidavit #1, para. 34.d).

He also attests that he reviewed the file of the Client’s previous counsel (some 300 pages), the ICBC disclosure, medical records and the Client’s EI records (Harding Affidavit #1, para. 34; Harding Affidavit #2, para. 4). Mr. Harding attests that on September 14, 2019, he conducted a further EFD of Mr. Bachra in the Tort Action (Harding Affidavit #1, para. 34.e).

The Termination of the CFA [ 45 ] It is clear that the solicitor-client relationship began to deteriorate in early January 2019 when the Client was advised that the trial of the Tort Action had been adjourned. [ 46 ] The Client exhibited to his affidavits the content of some emails he sent to Mr. Harding and his staff, which he had cut and pasted into Word documents. However, the Client did not exhibit the entire email threads or printouts of the emails to his affidavits. Mr. Harding did not exhibit any of his (or his staff’

s) email correspondence with the Client to his affidavits. As such, the record is incomplete, but Mr. Harding did not dispute the accuracy of the content of the Client’s cut-and-paste emails.

[ 47 ] The Client says that he did not know until the first week of January 2019 that the trial had been adjourned (Client Affidavit #1, Ex. A, p. 10 of 60); both the adjournment of the trial and the communication to him about it clearly upset him. The Client expressed his frustration to Mr. Harding and his staff, in particular, Mr. Harding’s paralegal, Iona Welder, starting in January 2019 (see Client Affidavit #1, Ex. K, p. 1 of 4). The Client testified that he called Mr. Harding’s office “over and over again” to find out what was happening with rescheduling the trial, but he did not hear back from Mr. Harding.

He also sent them emails. [ 48 ] In an email the Client sent to Ms. Welder on May 22, 2019, he referred to his attendance at Mr. Harding’s office a few days earlier, when he spoke with Julia Maisonville, the legal assistant (Client Affidavit #1, Ex. K, p. 2 of 4). This email states the following: Hi Iona … The last time I talked to you on the phone, you said there were still some weeks available for court in 2019 that worked for Mr. Harding, so I hope you reserved those weeks!! That was over 5 months ago and this case is almost 10 years old!! In the approximately 5 years I’ve been with Mr.

Harding and your firm, I can’t recall your firm ever telling me the truth, but I hope you were telling me the truth when you said that you and Mr. Harding were going to reserve some dates for 2019. It only makes sense that you guys did that because this case is almost 10 years old, but when I stopped by the office on Friday and talked to Julia, she wasn’t sure what you and Mr. Harding have done. (If anything). Mr. Harding knew 5 years ago that the defence wasn’t going to settle out of court, so after Arsh performed that Punjabi discovery, why on Earth did Mr.

Harding think the defence were going to settle out of court??? Did he completely and totally forget about the assault case??? That’s why I hired him!! …. How was I made to believe we were going to court after 9 years, but then I was told only a week before court that it was postponed (one week after 9 years), then Mr. Harding gives (me) shit for being short with you. I really hope I was told the truth this time and those dates were reserved for 2019. Thanks Iona!! I really don’t know what else to say, your firm has treated me like shit. Immediately after I gave a great discovery for the assault case, Mr.

Harding called me an asshole. Your firm has me stressed right out!!! … I’ve been trying to contact Mr. Harding for almost 2 months and he hasn’t returned my e-mails or even tried to contact me in the least. I guess Mr. Harding doesn’t seem to think me or my case is important, so maybe you’re important enough to make an appointment for me to see him in person. Thanks Iona!! [ 49 ] The Client admits that when he went to Mr. Harding’s office in late May 2019, he was angry and raised his voice with Ms. Maisonville. [ 50 ] In an email to the Client dated May 23, 2019, sent the day after the Client’s email to Ms.

Welder, Mr. Harding explained to the Client why the trial had been adjourned, and the difficulty in securing dates for a 10-day trial so that both Actions could be heard together (the “May 2019 Email”) (Client Affidavit #1, Ex. J, p. 1 of 2; Ex. L, pp. 1-2 of 3). Mr. Harding said that some of the delay in securing dates was because they had been waiting for the results of the appeal of Master Caldwell’s order, which was abandoned the month before. In the May 2019 Email, Mr.

Harding accepted responsibility for not keeping the Client updated, stating: “If you have not been sent copies of letters, or otherwise been kept abreast of events, that’s on me. Usually we send copies of letters and so on to the client. Maybe that didn’t happen here. My fault.” [ 51 ] Mr. Harding then addressed the Client’s attendance at the office where he got angry with Mr. Harding’s staff as follows: … it is not acceptable for you to come to [my] office and yell at my staff. You know I am a very busy lawyer – because I go to trial a lot. Last Friday you arrived without an appointment.

I was busy preparing for a hearing and could not see you. The staff person who handles your file was not in the office. So Ms. Maisonville saw you, to try to find out what you wanted. You were loud, angry and abusive. I accept you were not angry AT her. I assume you were angry about the delay, and possibly angry at me. But you took it out on her. Joe: you are a big, intimidating guy. It’s not right for you to yell at my staff. … it’s not part of the job description that they have to suffer abuse from clients. Ms. Maisonville was quite shaken by your outburst, and I had to calm her down and reassure her.

I hope this account of what we have been doing on your behalf answers your questions. I hope my comments above will also alert you to the unacceptability of shouting at my staff. We are moving forward on your file. Let’s put this outburst behind us. Let’s make sure that it doesn’t happen again. (Client Affidavit #1, Ex. J., p. 2 of 2). [ 52 ] The Client exhibited the content of the email he sent on May 28, 2019 to Mr. Harding in response to the May 2019 Email, stating the following: Are you kidding me? You’re the one that called me an asshole!!

You called me an asshole right after I gave a good discovery and your firm has treated me like shit!! … All I’ve asked from you and your staff are simple answers to simple questions and you and your staff have been abusive to me by lying to me consistently from day one and calling me an asshole right after that discovery!! You’re giving me shit for showing up at your office after not hearing from you or your staff for over five months? You never returned any of my messages? How was I abusive by showing up for an appointment that I didn’t know you cancelled?? How was I abusive for telling Julia the truth???

I’ve NEVER been abusive to any of your staff, what are you talking about??? I’ve only been lied to by you and your staff and your firm has treated me like shit!! … The message below is the email I sent Iona [on May 22] before you sent me your bully email and accused me of something I haven’t been or done. So how about we put your abuse and lies behind us and move on!! THAT WOULD BE GREAT!! … I don’t want any more abuse or lies from you or your staff thank you very much!! That would prove how much you and your staff are dedicated to my case (that’s almost 10 years old).

Almost 10 years old!! … How many of your 150 cases are 10 years old?? (Client Affidavit #1, Ex. L, p. 2 of 3). [ 53 ] There was no evidence of Mr. Harding’s response to the Client’s email at the review, or whether he had replied to it by email or a phone call. The Client continued to email Ms. Welder inquiring about the trial dates. He exhibited the content of two emails he sent to her in July 2019 (Client Affidavit #1, Ex. K, p. 3 of 4). In an email he sent to her on July 11, 2019, the Client writes:

… could you please give me an update when you can. Anyone that I’ve talked to about my case, can’t believe my case is almost 10 years old and we don’t have a court date yet? … Please reserve some court dates when you can, or if you’ve talked to the defence please let me know. I didn’t understand half of Mr. Harding’s email so I sent him a reply, but he said you guys are dedicated to my case. Did you guys already reserve some court dates? … Why do we need 40 hours with the cases merged, when we only booked 20 hours before they were merged? … [ 54 ] In an email he sent to Ms.

Welder on July 31, 2019, the Client again refers to the May 2019 Email and writes: Hi Iona … did you forget about me??? Communicating with your firm is so much different than communicating with my old lawyer. I don’t know what Mr. Harding means by being dedicated to my case, but this case is almost 10 years old and we still don’t have a court date? … I could NOT believe the email Mr. Harding sent me, there’s a HUGE difference between swearing at someone like Mr. Harding did to me after the discovery when he called me an asshole and just swearing in a conversation.

I swear in conversation everyday, but I’ve NEVER sworn at Mr. Harding or any of his staff. Did Mr. Harding really call (ME) abusive? Wow!! Mr. Harding said 2019 is still possible for court. I don’t recall Mr. Harding ever telling me the truth about my case, but is 2019 possible for court??? … I have people worried about me Iona and asking about the status of my case? Is it possible to see what I’ve been billed for (this year) and up to date? It’s August long weekend (2019) and we still don’t have a court date? Everyone seems to find this odd except your firm?

I’ve kept my cool for 9 years, but a lot is frustrating, besides being told by Mr. Harding that the defence were going to settle out of court three years ago … [ 55 ] The Client exhibited a few lines from an email to him from Ms. Welder, which he indicates he received on July 31, 2019, in which she wrote that they had tentative trial dates, but she wanted to review the correspondence between the counsel first (Client Affidavit #1, Ex. K, p. 3 of 4). The communications between Ms.

Welder and the Client between July 31 and August 14, 2019, were not in evidence, but from the reference in the Client’s email reproduced below, trial dates had been tentatively booked in 2022. On August 14, 2019, the Client wrote the following email to Ms. Welder: Hi Iona … I asked for a meeting with Thomas Harding not a voice message to call him back. When Harding combined the two cases back in December 2018, he (DIDN’

T) ask the courts to change the trial from 5 days to 19 days, WE WERE GOING TO COURT IN JANUARY WITH

(5) DAYS OF TRIAL AND BOTH CASES COMBINED. You’ll probably agree it looks like Thomas Harding has jeopardized & compromised my case... … What have you been doing for work on my case if you weren’t booking any dates until August 2019? This case is almost 10 years old so how has Harding and your firm been dedicated to my case, like Harding said in his email? I said on the phone I was looking for answers. Why didn’t you book the (2019) trial dates that you said were available back in December 2018? When did you book these (tentative) dates for 2022? I’ll be (51) years old and I was (39) when I was assaulted!!

I emailed you before asking for my file and I asked you on the phone so I’m asking you again, I’d like copies of anything to do with my file. I have to review my case and try and comprehend what’s going on. Thanks Iona. Please let me know when it’s ready ASAP. Thanks. (Client Affidavit #1, Ex. K, p. 4 of 4). [ 56 ] The Client had asked Ms. Welder to provide him with information about his accounts, as well as “anything to do with” his file. There was limited evidence before me of the parties’ interaction from August 2019 to June 2020, when Mr. Harding terminated the CFA, but the undisputed evidence was that Mr.

Harding had not provided the Client with an interim account, or with his file by the summer of 2020, as the Client had requested in the emails reproduced above. [ 57 ] The Client describes in a narrative the events leading to the termination of the CFA and the filing of the Withdrawal Notices: …In June of 2020 I got a call from Thomas Harding’s secretary and she said Thomas didn’t book the 18 days of trial for March 2021. She said Thomas changed his mind and he was going to try and book trial dates for 2023-2024. I was so mad I drove to Thomas Harding’s office immediately for answers.

Thomas was there and he didn’t give me any answers or explain any of his actions when I confronted him. Thomas refused to show me any documents I asked to see and Thomas phoned the police on me. Thomas had the police escort me out of his office instead of explaining anything I asked. A few days after Thomas phoned the police I went back to Thomas Harding’s office and asked for my case file. Thomas refused to give me my case file and he said I owed him money and he called the police again. The police came to his office and Thomas had the police escort me out of his office again.

Then Thomas withdrew as my lawyer without giving any reason what so ever. I didn’t know Thomas withdrew as my lawyer because Tomas sent the documents to an old email address. The second time Thomas called the police, the police asked Thomas if he could give me the bills of the money Thomas said I owed him and Thomas printed out a bill for the assault case ($9442.04) and he printed a bill for the hit and run on a pedestrian case ($17,217.51). (Client Affidavit #1, Ex. A, p. 10 of 60). [ 58 ] On June 23, 2020, Mr.

Harding served notices of intention to withdraw in both the Tort Action and the MV Action on the Client and the parties of record (Client Affidavit #1, Ex. E and G). The Client did not file an objection to these notices of intention to withdraw and as set out above, he asserts that they were sent to an “old email address”. On July 7, 2020, Mr. Harding filed the Withdrawal Notices in both the Tort and MV Actions (Client Affidavit #1, Ex. F and H). Position of the Parties

[ 59 ] Mr. Harding does not dispute that he terminated the CFA and maintains that he is entitled to the fees he is claiming in the 2022 Bills, that they reflect the “reasonable value” of his work to the date of termination. The CFA provides that, if terminated by either party, the Client agreed to pay Mr. Harding “forthwith on the presentation” of his account, a fee “based upon the reasonable value of services performed to date”, which bill Mr. Harding “shall have a right to present to the Court forthwith for assessment to be paid immediately after certification.” Mr.

Harding’s position is that he could not produce his final accounts (that is, the 2022 Bills) until the Client’s Actions were resolved. Mr. Harding admits that because the Client retained him on a contingency basis under the CFA, he did not maintain contemporaneous time records for his time, although he testified that he requires his junior lawyers and staff to enter their time (and I note the 2020 Pre-Bills contain some time entries of Mr. Harding’s).

He maintains that as the 2020 Pre-Bills were not his final accounts, they were subject to revision. [ 60 ] The Client’s position is that he should not have to pay Mr. Harding anything and that the 2022 Bills should be reduced to $0. The Client asserts that over the course of the retainer, Mr. Harding and his staff failed to communicate with him or discuss with him the steps they were taking to pursue the Actions, and would not respond to his emails and phone calls. He maintains that Mr.

Harding “did nothing” for him and any work moving the Actions forward was based on the work of his previous counsel on the MV Action. The Client is clearly aggrieved by Mr. Harding’s withdrawal and termination of the CPA; he was emotional and angry at Mr. Harding during the LPA review, maintaining that Mr. Harding had breached the Client’s trust, which included going so far as to unnecessarily call the police to remove the Client from his office. Discussion and Legal Principles The “bills” [ 61 ] One of the Client’s objections was that Mr.

Harding had effectively doubled the amount he says he is owed in the bills he issued in 2022 (that is, the 2022 Bills), which were issued two years after Mr. Harding provided the Client bills when the CFA was terminated in 2020 (that is, the 2020 Pre-Bills). The Client questioned how Mr. Harding could “get away with this”. [ 62 ] The answer to how a second set of “bills” could be issued lies in the definition of “bill” in the LPA (the issue of Mr.

Harding’s increase of the amounts owing on the final account from the supporting pre-bills and the inclusion of new time entries from one pre-bill to another pre-bill covering the same time period is addressed below). [ 63 ] For the purposes of

Part 8 of the LPA , which governs lawyers’ fees, s. 64(1) provides that “bill” “means a lawyer’s written statement of fees, charges and disbursements”. Section 69(3) of the LPA expressly provides that the bill “must be signed by or on behalf of the lawyer or accompanied by a letter, signed by or on behalf of the lawyer, that refers to the bill.” (See also Law Society of British Columbia v.

Tungohan , 2017 BCCA 423 , para. 26 .) Section 69(1) of the LPA further provides that a lawyer must deliver a bill to the client; s. 69(2) provides that a lawyer may deliver the bill by mailing it to the last known business or residential address of the client. [ 64 ] The 2020 Pre-Bills do not meet the requirements for bills under s. 69(3) of the LPA because they are not signed by Mr. Harding, or accompanied by a letter signed by him or on his behalf (as I understand it, the 2020 Pre-Bills were provided to the Client when he attended at Mr. Harding’s office a day or two after Mr.

Harding had terminated the CFA). [ 65 ] Mr. Harding submitted that he was entitled to revise (that is, increase) the amounts because the 2020 Pre-Bills and 2022 Pre-Bills were not final accounts, pointing to the word “sample” beside the invoice number. In Nathanson Schachter & Thompson v.

Inmet Mining Corp ., 2009 BCCA 385 ( Inmet ), the Court described the several different types of accounts used by lawyers: [50] … An “interim” account is a provisional or temporary account and is subject to variation; a “final” account is one that will not be changed; a “periodic” account is one that relates to all professional services performed within a certain period of time – it may be final or interim; and a “work completed” account is a final account delivered on completion of the retainer. [51] Interim accounts are merely requests for money to be applied on a final account to be submitted later: [citation omitted].

The venerable rule that without the client’s agreement the solicitor has no right to payment of any accounts, interim or final, delivered during the course of a retainer to conduct an action has been confirmed in the modern billing context … [ 66 ] The CFA does not provide that Mr. Harding is entitled to issue interim accounts and seek payment on them (although one wonders what Mr. Harding’s position would be had the Client paid the amounts owing on the 2020 Pre-Bills when he received them in June 2020). Mr.

Harding equates the 2020 and 2022 Pre-Bills with interim accounts as defined in Inmet above, treating them as provisional or temporary accounts, subject to variation. [ 67 ] Pre-bills (sometimes referred to as “ pro formas ”) are not the same as bills, but are the printouts from the law firm’s records of the hours entered by lawyers and staff for their work on a client’s file in chronological (date) order, which are then used to support the amounts shown on a final account (in other words, pre-bills show the background to justify the accounts).

This was explained by District Registrar Nielsen (as he then was) on the LPA review of a lawyer’s fees charged under a contingency fee agreement in Cao v. Tsui & Cao Law Corporation , 2015 BCSC 2072 : [23] … A lawyer’s pre-bills and notes typically provide a detailed

summary of what the lawyer did, why he did it, and the time it took, all in chronological order. This roadmap provides the lawyer with the ability to explain the work performed, the reasonableness of the time spent, and the value to the client. Likewise, it allows the client to see the details of the lawyer’s efforts and provides a link to the various billings.

In essence, it provides a layer of natural justice to the client, while at the same time providing the lawyer with a contemporaneous record to prove the reasonableness, necessity, and the propriety of his efforts in relation to the proceeding. [24] The lawyer has the burden of proving what was done, why it was done, the time it took, and why it took the amount of time billed. See Spraggs v. Lopushinsky , 2002 BCSC 311 , at para. 85 . Absent pre-bills, or any notes in relation to the billings, this can be

exceedingly difficult as this case demonstrates. [ 68 ] As a “bill” is defined in the LPA , the only bills issued to the Client by Mr. Harding are the 2022 Bills. However, in this case involving a contingency fee agreement where Mr. Harding testified that he did not maintain contemporaneous time records, I find that the 2020 and 2022 Pre-Bills are evidence of the work Mr. Harding (and his staff and colleagues) performed for the Client. Did Mr. Harding Terminate the CFA Without Cause? [ 69 ] The Client asserts that Mr.

Harding had no “good reason” for terminating the CFA and that as a result, he has no right to be paid, citing Morrison Voss v. Smith , 2007 BCCA 296 [ Morrison Voss ]. [ 70 ] In Morrison Voss , the Court of Appeal overturned the decision of the registrar, which had been upheld on an appeal to the Supreme Court, determining that the lawyers had terminated their contingency fee retainer agreement for good reason and should be paid.

The lawyers maintained that the client in the personal injury matter had made an intentionally false statement to the welfare authorities about her rental arrangements with her brother, and had not told them about this before a settlement offer was received. In the lawyers’ view, their client was dishonest to such an extent that it destroyed their solicitor-client relationship and they were entitled to withdraw their services.

The Court of Appeal disagreed and determined that the lawyers were not entitled to any fees as the basis for the lawyers’ withdrawal of their services was not a good reason. [ 71 ] The facts of this case are not the same as in Morrison Voss . [ 72 ] The CFA specifically provides that Mr. Harding can terminate it where “continued representation would be impractical or unethical” (CFA, para. 28D). In Green v. John M. Richter Law Corporation , 2018 BCSC 1840 [ Green v.

Richter Law ], Justice Marzari upheld the registrar’s determination that the law firm had justifiably terminated the contingency fee retainer with their client because the solicitor-client relationship had broken down, and that they were entitled to their fees to the point of termination of the retainer. In her reasons at para. 18, Marzari J. reproduced the discussion by Master Vos (sitting as registrar) about the need to end the solicitor-client relationship where it has broken down: [35] A functioning solicitor-client relationship is a cornerstone of our legal system.

For a solicitor-client relationship to be productive, it is crucial that the client should be confident that the lawyer is conducting the case in the best interests of the client. In practical terms, lawyers need to have a good working relationship with their clients in order to properly conduct the case. If the solicitor-client relationship breaks down, either party can and should bring the relationship to an end. [ 73 ] In Green v.

Richter Law , the evidence that the solicitor-client relationship had broken down, such that its termination was justified, involved emails showing that the client “was seriously questioning the propriety of [the lawyer’s] conduct of the case”, as well as a “confrontational meeting” in which the lawyer’s notes reflected that the client became combative and accused her of “not doing my ‘fiduciary duty’ and not ‘honouring our agreement’ and ‘not being willing to help him’” (para. 17, quoting para. 32 of the registrar’s reasons). [ 74 ] In this case, the parties agree that the May 2019 Email was sent in response to what can be described as the Client’s confrontational meeting with Ms.

Maisonville. As evidenced in the emails reproduced above, it is clear that the Client had lost confidence in Mr. Harding’s representation of him by the end of August 2019, asserting to Ms. Welder that Mr. Harding had “jeopardized and compromised” his case, and that he had been lied to and treated poorly by Mr. Harding and his staff. In my view, by this point, the parties’ solicitor-client relationship had broken down to the point it was irreparable and its termination was justified by either the Client or Mr. Harding, following Green v. Richter Law .

What surprises me is that the Client did not press the termination of the CFA at that point (after requesting his file and the fees incurred to date) and that it took Mr. Harding a further ten months to serve the notices of intention to withdraw and file the Withdrawal Notices. [ 75 ] There was no evidence before me of the communication between the Client and Mr. Harding (and/or his staff) from late August 2019 to the termination of the CFA. When the Client put it to Mr. Harding that he did not communicate his intention to withdraw as the Client’s lawyer or the reason for his termination of the CFA, Mr.

Harding’s response was that “it’s in the emails”. While I find that Mr. Harding was justified in terminating the CFA (and had reason to terminate the CFA by the end of August 2019), there was no evidence before me that after the May 2019 Email, he expressly communicated to the Client that he intended to withdraw as his lawyer given the Client’s further emails to him and his staff.

Applicable Legal Principles [ 76 ] On a review under the LPA , the authorities are clear that the lawyer bears the onus to prove that the work done and the accounts issued for the work done were necessary and reasonable (see , for example, Purcell v. McLean , 2023 BCSC 365 , para. 22 , Cao v.

Tsui & Cao Law Corporation , supra ). [ 77 ] Section 71(2) of the LPA provides that the registrar must allow fees, charges and disbursements reasonably necessary and proper to the conduct of the proceeding, or those authorized by the client , whether or not the services were reasonably necessary and proper to conduct the proceeding or business to which they relate. [ 78 ] In the course of this analysis, the registrar must consider all the circumstances, including those enumerated in s. 71(4) of the LPA , which provides: 71

(4) At a review of a lawyer's bill, the registrar must consider all of the circumstances, including (

a) the complexity, difficulty or novelty of the issues involved,

(

b) the skill, specialized knowledge and responsibility required of the lawyer, (

c) the lawyer's character and standing in the profession, (

d) the amount involved, (

e) the time reasonably spent, (

f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the ratewas reasonable, (

g) the importance of the matter to the client whose bill is being reviewed, and (

h) the result obtained. [79] The authorities on LPA reviews hold that at the end of the day, the registrar “should allow a fair fee commensurate with the workperformed in the retainer and taking into account all of the circumstances”: Kuo v. Waldmann, 2020 BCSC 495, para. 57 (appealsdismissed 2022 BCSC 329 and 2023 BCCA 123). [80] As the circumstances set out in s. 71(4) of the LPA must be considered on this review, I will address each of them, together withthe Client’s objections. (

a) The Complexity, Difficulty or Novelty of the Issues Involved [81] Mr. Harding attests that the Client’s cases were not complex cases (Harding Affidavit #1, para. 9), but that he had some concernsabout the Client’s credibility as a result of unreported income (Harding Affidavit #1, paras. 15-17). [82] Based on my review of the pleadings, as well as the evidence before me at the hearing, I find that the issues involved in theClient’s proceedings were not difficult, complex or novel. (

b) The Skill, Specialized Knowledge and Responsibility Required of the Lawyer [83] Mr. Harding attests that his practice has “always had a high proportion of cases other lawyers have refused or relinquished as toodifficult” (Harding Affidavit #1, para. 19), under this factor. The Client may have been difficult to deal with as the retainer progressed,but in my view, this was not a file that required skill, specialized knowledge or responsibility on Mr. Harding’s part over and abovestandard tort and motor vehicle actions. (

c) The Lawyer’s Character and Standing in the Profession [84] Mr. Harding was called to the bar in 1990 and he attests that he has practiced plaintiff-side personal injury law since that time,primarily in motor vehicle cases, but also in battery cases (Harding Affidavit #1, para. 19). Under this factor, in his affidavit, Mr.Harding listed his professional memberships, summarized his presentations at continuing professional development programs, andattested that he has written several articles and been interviewed on legal topics (Harding Affidavit #1, paras. 19-24). [85] Mr.

Harding attests that he has a “non-relevant record of discipline” with the Law Society of B.C. (“LSBC”), in which he wassanctioned for incivility to members of the profession, or as he phrased it, where he was “punished for being rude to people who Iperceive to have attempted to cheat their own clients, bully others, or mislead the court” (Harding Affidavit #1, para. 25). [86] The Client disputes that Mr. Harding’s discipline record is irrelevant to this LPA review.

In his submissions, he asserted that Mr.Harding had breached his trust and failed to provide him with an acceptable level of service because he did not pursue his Actionsdiligently and did not respond to the Client “sometimes for years”. The Client referred to a decision of the LSBC in which Mr. Hardingconditionally admitted to instances of professional misconduct arising out of his representation of a client in a family matter and hadproposed he pay a fine of $15,000 (which the LSBC accepted). The decision is reported at 2016 LSBC 9 , 2016 LSBC 09 (the“2016 Decision”).

In the 2016 Decision, the LSBC panel referred to Mr. Harding’s disciplinary record, which also includes a 2015decision in which Mr. Harding was fined $6,000 for misconduct that encompassed failing to provide his client with an acceptable qualityof service (para. 140).

This decision is reported at 2015 LSBC 25 (the “2015 Decision”). [87] The authorities have repeatedly stated that although the registrar cannot make findings of misconduct because the regulation anddiscipline of lawyers is within the exclusive jurisdiction of the LSBC, professional misconduct issues may be considered within thecontext of an LPA review (see, for example, Bayshore Law Group v. Kursar, 2019 BCSC 923 [Bayshore Law Group], para. 32, citingWalker v. Schober, 2008 BCCA 19, paras. 43, 50 and 51).

In Bayshore Law Group, Registrar Nielsen stated: [33] Pursuant to s. 71(4) the registrar must consider “all the circumstances” when determining those fees and disbursements whichwere reasonably necessary and proper to the proceeding to which they relate. “All the circumstances” may touch on issues ofprofessional misconduct, apparent breaches of the Law Society Rules and The Code of Professional Conduct.

Considering these mattersin relation to the necessity or propriety of fees and disbursements within an LPA proceeding is not the equivalent of usurping the role ofthe Law Society in disciplinary matters. [88] As the 2015 and 2016 Decisions illustrate, Mr. Harding is aware of what an “acceptable level of service” requires of a lawyer,which in my view is relevant in this LPA review to the propriety of some of the fees he claims on the 2022 Bills.

(

d) The Amount Involved [ 89 ] In the 2017 Settlement Proposal, the Client had offered to settle both Actions for $1.2 million, although he was claiming over $1.7 million in damages (see Harding Affidavit #2, para. 7). [ 90 ] As I noted above, the terms of the settlement of the MV Action, and whether it includes the settlement of the Tort Action, or a condition that the Client discontinue the Tort Action, were not before me, but the amount involved is not insignificant to the Client. (

e) The Time Reasonably Spent [ 91 ] Mr. Harding submits that the time he and his staff and junior lawyers spent working on the Client’s Actions as reflected in the 2022 Bills is reasonable. Mr. Harding’s evidence was that when he is retained on a contingency fee basis, he does not maintain contemporaneous time records, but that he requires his staff and other lawyers working with him to record their time as they go (Harding Affidavit #1, para. 31).

He testified and earlier attested that in preparing the 2022 Bills, he recreated and increased time entries from the earlier Pre-Bills: When my office issued the formal accounts found at “page 22/30” for the “MVC” matter and “page 27/30” for the “Assault” matter, I had gone through [the] file and captured as accurately as possible time entries for tasks which had not been included in the prebills. (Harding Affidavit #2, para. 6) [ 92 ] In considering whether the time was reasonably spent, I reviewed the time entries on both the 2020 and 2022 Pre-Bills for each Action.

The Time Spent on the Tort Action [ 93 ] With respect to the Tort Action, the 2020 Pre-Bills show a total of 28.75 hours of work was performed on the file by Mr. Harding, his staff and junior lawyers, for total legal fees of $2,812.50, excluding taxes. On the 2022 Pre-Bill for the Tort Action, the total hours of work performed on the file had increased by less than one hour to 29.70 hours, but the legal fees increased to $4,832.50, excluding taxes. [ 94 ] Both the 2020 and 2022 Pre-Bills show that in 2015, Ms.

Makohn recorded just under two hours to prepare the application, attend in Provincial Court, and obtain the order transferring the Tort Action to the Supreme Court. The last entry of Ms. Makohn is from August 27, 2015. I find this time to be reasonable for these tasks. Mr. Harding did not record any time in 2015 on either Pre-Bill, and there are no 2016 entries on the Pre-Bills for the Tort Action. [ 95 ] In 2017, both Pre-Bills indicate the total time spent on the Tort Action by Mr. Harding and his staff was 11 hours. There are two entries from Mr.

Harding in 2017 on the 2020 Pre-Bill, which did not change on the 2022 Pre-Bill. He records a total of 1.5 hours: 0.90 hours on Jan. 12 to prepare a letter to opposing counsel and arrange a Punjabi interpreter, and a further 0.60 hours on July 18 to prepare a letter to the opposing counsel and the defendants serving the notice of trial and the notice requiring trial by jury. Mr. Harding’s entry on July 18, 2017 also includes “prepare consent order to join actions”.

The bulk of the time entered in 2017 on the 2020 Pre-Bill for the Tort Action is attributed to “erh”, who recorded 6 hours on May 2 for $750.00 to “finalize settlement proposal draft for Thomas’s final review” and to “LA5” who recorded 2 hours on Feb. 7 to “drafted NOA, Affidavit and Order for sub service at XFD”. On the 2022 Pre- Bill for the Tort Action, the May 2 entry for 6 hours is attributed to Ms. Maisonville, and the fee remained at $750.00; the 2-hour entry on Feb. 7 did not change. [ 96 ] In 2018, the 2020 Pre-Bill indicates 14.75 hours were recorded on the Tort Action, which Mr.

Harding increased to 15.5 hours on the 2022 Pre-Bill. All of the entries are attributed to Ms. Maisonville or Ms. Welder; their tasks included preparing the list of documents (which was served on the defendants in June 2018), reviewing MSP records (Ms. Maisonville), communicating with opposing counsel’s office about and arranging EFDs, as well as e-filing the trial brief and application materials in late November.

Although the record reflects that he attended a TMC and appeared before Master Caldwell in late 2018, and although his evidence was that he went back over tasks and added in his time, neither of the Tort Action Pre-Bills include any entries for Mr. Harding’s time for these appearances in 2018. [ 97 ] In 2019, the total amount of time spent on the Tort Action on the 2020 Pre-Bill is 1.2 hours, increased to 1.3 hours on the 2022 Pre-Bill. The entries are by Ms. Maisonville, Ms. Welder, and Ms. Sarkaria. Mr. Harding did not record his time for the May 2019 Email on either of the Pre-Bills for the Tort Action.

Despite his attestation (Harding Affidavit #1, para. 34), there are no entries for a further EFD of Mr. Bachra in September 2019 on either of the Pre-Bills. There are no time entries in 2020 for the Tort Action on either Pre-Bill. [ 98 ] On the 2020 Pre-Bill for the Tort Action, 17.30 hours at an hourly rate of $44.51 totalling $770 are attributed to “Emma-Rose”. On the 2022 Pre-Bill, there are no charges attributed to “Emma-Rose”, but 21.20 hours are attributed to Ms. Maisonville, at an hourly rate of $141.16, totalling $2,992.50.

I find that this change to the identity of the person recording time and the addition of increased fees attributes for most of the increase in the fees from the 2020 Pre-Bill to the 2022 Pre-Bill. I also note that neither of the Pre-Bills includes any time recorded by Mr. Harding (or other lawyers) to interview witnesses in the Tort Action, although at the LPA hearing, both the Client and Mr. Harding identified witnesses who were scheduled to appear at the trial of the Tort Action in January 2019.

The Time Spent on the MV Action [ 99 ] With respect to the MV Action, the 2020 Pre-Bills show a total of 76.30 hours of work was performed on the file by Mr. Harding and his staff and junior lawyers, for total legal fees of $9,727.50, excluding taxes. On the 2022 Pre-Bill for the MV Action, the total hours of work performed on the file had increased by a further 21.60 hours to 97.90 hours, for legal fees totalling $23,187.50, excluding taxes.

[ 100 ] On both Pre-Bills, there are only two 2015 entries, both by Mr. Harding for 0.20 hours on Dec. 15 and 29 ($40 each or $80 total), for reviewing letters from SPH counsel, noting on Dec. 29 that “they only represent defendants” in the MV Action. [ 101 ] The total hours recorded on the 2020 Pre-Bill for 2016 (12.6 hours) were decreased to 11.2 hours on the 2022 Pre-Bill, as Mr. Harding removed Ms. Maisonville’s entry of 1.4 hours on Nov. 23 for “administration” (which on the 2020 Pre-Bill had $0 in fees charged). However, on the 2022 Pre-Bill, Mr. Harding has revised the narratives for Ms.

Maisonville’s entries of 5.8 hours and 1.0 hour on Nov. 24 from “administration” to “review file material and organizing documents” and “file admin, update pleadings index” and increased the fees from $0 to $870 and $150 respectively. He did not revise the 0.70 hour entry on Nov. 24 of Ms. Maisonville for “administration” between the two Pre-Bills, although he increased the fees from $0 to $105 for that entry. Mr. Harding also increased some of the amounts originally charged on the 2020 Pre-Bill by Ms.

Maisonville (for example, the 0.40 hour entry on Jan. 28, for “review file material, drafting correspondence” is $40 on the 2020 Pre-Bill, increased to $60 on the 2022 Pre-Bill; the 0.40 hour entry on Sept. 15 for $50 on the 2020 Pre-Bill has been increased to $60.00 on the 2022 Pre-Bill). [ 102 ] The 2016 entries on both Pre-Bills include 0.20 hours on March 8, recorded by “CJC” (Chris Carta, a lawyer practising with Mr. Harding, billing at $275 per hour) for “review of notice of application for joinder”.

The evidence before me establishes that this application was not filed until directed by Verhoeven J. at the TMC for the Tort Action in late November 2018. Both Pre-Bills include Mr. Harding’s entry on Sept. 15 of 1.30 hours to “review file, conference with client” as well as his entry of 0.20 hours on Sept. 19 for “letter and cheque to previous counsel for file”. [ 103 ] In 2017, the 2020 Pre-Bill indicates a total of 41.8 hours were recorded, which Mr. Harding increased to 42.3 hours on the 2022 Pre-Bill. Mr.

Harding added two entries for his time on July 18, both for 0.20 hours, sending letters to each of the defendants “serving notice of trial and notice requiring trial by jury”. The record confirms that no trial was set for the MV Action and, as noted above, Mr. Harding had recorded time on the Pre-Bills for the Tort Action (in which the jury trial was scheduled) for this same task. I note that Mr. Harding attested that in February 2017, he commenced an EFD of Mr. Bachra in the MV Action, but it was adjourned (Harding Affidavit #1, para. 34).

There were no time entries for the EFDs in the MV Action in early 2017 on either Pre-Bill. [ 104 ] Both the 2020 and 2022 Pre-Bills for the MV Action include time entries of legal assistants to research and prepare the settlement offer, but Mr. Harding did not record any time for this task. On the 2020 Pre-Bill, on Feb. 7, 30 hours is recorded by “LA5” for “quantum settlement research. Draft 1 of the quantum settlement prepared” for a total fee of $3,000.00. On the 2022 Pre-Bill, this 30- hour entry is changed to “JM” for Ms. Maisonville and the fee is increased to $4,500.00.

No explanation was offered as to why these entries of 30 hours on one day exceed 24 hours, or why “LA5” was changed to Ms. Maisonville and the fees increased. [ 105 ] Mr. Harding increased the 12.55 hours recorded in 2018 on the 2020 Pre-Bill to 32.55 hours on the 2022 Pre-Bill. The explanation for the increased hours is that in revising the 2022 Pre-Bill, Mr. Harding included his time to prepare for and attend the EFDs of the Bachras and the Client (16 hours for the EFDs of the Bachras and 4.0 hours for the EFD of the Client). Although the evidence before me was that Ms.

Sarkaria attended one or more of the EFDs of the Bachras, there is no time recorded on either Pre-Bill for this (or on the Pre-Bills for the Tort Action). [ 106 ] The EFD of the Client was conducted by Mr. Singh, who was counsel for the defendants in the Tort Action; the EFD of the Client was not for the MV Action. Further, the record confirms that the TMC was for the Tort Action, but there are entries on the Pre- Bills for the MV Action for “letter to defence counsel serving Plaintiff’s Trial Brief” by Mr. Harding on Oct. 22.

As noted, Master Caldwell ordered the Tort Action and MV Action heard together on December 20, 2018. [ 107 ] Mr. Harding increased the hours recorded in 2019 from 1.9 hours on the 2020 Pre-Bill to 4 hours on the 2022 Pre-Bills. Mr. Harding recorded an additional 2.0 hours of his time on May 23, 2019 to “review file, email from and to client detailing status of file” – this is, of course, the date of the May 2019 Email described above. On the 2020 Pre-Bill, Ms. Welder recorded .50 hours on August 27 without any narrative; Mr.

Harding revised the narrative on the 2022 Pre-Bill to “telephone call from client, review file material”. There are no further charges by Mr. Harding or any of his staff recorded for 2019 after August 27 on either Pre-Bill. [ 108 ] In 2020, both Pre-Bills indicate a total of 7.05 hours was spent on the Client’s MV Action. The majority of this is Ms. Maisonville’s 5.0 hour entry on Jan. 29 to “review file, organize documents and file, update pleadings”, for a fee of $750.00. There are further entries of Mr. Harding and Ms.

Maisonville on Feb. 4, corresponding with MSP and a physician regarding records, but there are no further entries in 2020. [ 109 ] There is no dispute that the CFA was terminated in June 2020, but there is an entry of Ms. Welder included on the 2022 Pre-Bill dated April 28, 2021 for 0.40 hours ($70) to “review file material, request new WIPS to review”. This should not have been included.

Summary of Time Reasonably Spent [ 110 ] The discrepancies between the Pre-Bills in both Actions illustrate the inherent problem with recreating time entries well after the fact, as Mr. Harding admits he did for the 2022 Pre-Bills. The Pre-Bills for the Tort Action do not include the time Mr.

Harding spent at the TMC before Verhoeven J. or the application before Master Caldwell, but he has included time on the MV Action 2022 Pre-Bill for attending the Client’s EFD and serving notices of trial and jury notices on the defendants, which charges were incurred for the Tort Action. [ 111 ] It is clear from the Pre-Bills that Mr. Harding’s support staff performed much more of the work on the Client’s files than he did.

While this was done to keep the Client’s costs low, I find that some of the entries, in particular the 30 hours recorded on one day to work on the 2017 Settlement, as well as several entries of a few hours for tasks that are administrative, are unreasonable. Like the situation facing Master Wilson sitting as registrar (as he then was) in Johannesson v. Wallis , 2016 BCSC 407 , the time records in the 2022 Pre- Bills were not made contemporaneously; as a result, I am unable to conclude that the posted time entries in the 2022 Pre-Bills “are an accurate reflection of the time actually spent” (para. 29).

(

f) Whether the Hourly Rate was Reasonable [ 112 ] Mr. Harding attests that at the time of the CFA, his usual hourly rate for non-contingency fee retainers was $400, and this hourly rate is set out on both the 2020 and 2022 Pre-Bills. The hourly rate listed on both the 2020 and 2022 Pre-Bills for the junior lawyers, Ms. Makohn and Ms. Sarkaria, is $250. The Client objected to the increase in Ms. Sarkaria’s hourly rate from $100 when she was a paralegal, to $250 as a junior lawyer, but I find that the increase in her billing rate when she became a lawyer was justified.

The “effective hourly rate” listed on both sets of Pre-Bills for Ms. Welder is $175, but for Ms. Maisonville, it was $94.55 on the on the 2020 Pre-Bill and $141.16 on the 2022 Pre-Bill. [ 113 ] I find the rates indicated above for the lawyers (Mr. Harding, Mr. Carta, Ms. Makohn and Ms. Sarkaria) to be reasonable based on their level of call at the time the fees were charged. In his affidavits and submissions at the LPA review, Mr. Harding referred to Ms.

Maisonville as both a paralegal and as a legal assistant, but her rate varies between the two sets of Pre-Bills as an “effective hourly rate” and it is unclear to me how Mr. Harding calculated her time. Mr. Harding provided no affidavits from either Ms. Maisonville or Ms. Welder attesting to their credentials. Based on the evidence before me, I find that the hourly rates for the support staff recorded on the Pre-Bills are unreasonable. (

g) The Importance of the Matter to the Client [ 114 ] The Actions are very important to the Client and as I have noted throughout these reasons, he continues to be aggrieved by the fact that the Tort Action has not gone to trial and he continues to blame Mr. Harding for this. (

h) The Result Obtained [ 115 ] In this case, Mr. Harding terminated the CFA before the Client’s Actions were concluded. I have considered the results that were obtained for the Client during the retainer. [ 116 ] Counsel working with Mr. Harding had transferred the Tort Action to Supreme Court shortly after being retained in 2015, and Mr. Harding had obtained the order of Master Caldwell that the Tort and MV Actions be tried together in late 2018. Although counsel from SPH had objected to the Actions being heard together and commenced an appeal of Master Caldwell’s order, the appeal was dropped.

From early 2017 through 2018, Mr. Harding, or counsel working with him, had conducted EFDs of the defendants in the MV Action, attended with the Client at his EFD in the Tort Action, prepared the Client’s list of documents in the Tort Action and attended a TMC in the Tort Action. [ 117 ] In the MV Action, a comprehensive settlement offer was prepared by Mr. Harding’s support staff and provided to SPH counsel in 2017, but it was rejected.

The settlement of the MV Action did not occur until some two years after the termination of the CFA, and there was no evidence before me of the current settlement to gauge whether the 2017 Settlement had formed the basis of the current settlement. The status of the Tort Action is unclear (as noted, I do not know if the terms of settlement of the MV Action include that the Client discontinue the Tort Action). [ 118 ] During the time Mr.

Harding was retained under the CFA, there was some progress on the Client’s Actions that may not have occurred if the Client was representing himself; however, I find that the results obtained for the Client in the circumstances of a five-year retainer were minimal. Disposition [ 119 ] The general rule with respect to fees claimed under a contingency fee agreement by a dismissed law firm is that the law firm must wait until the outcome of the litigation before seeking payment (see, for example, MacAlpine v. Funk , 2020 BCSC 1225 , para. 55 ).

While it may be argued that this case is distinct from the authorities because Mr. Harding terminated the CFA, and the Client did not retain successor counsel, Mr. Harding relies on the general rule to explain why his final accounts, the 2022 Bills, were not issued until May 2022. [ 120 ] I have found that the solicitor-client relationship was irreparable by the end of August 2019, and Mr. Harding’s withdrawal was justified in the circumstances and he is entitled to seek fees to the point of termination of the CFA.

However, as I indicated at the outset of this decision, I find that the 2022 Bills must be reduced. [ 121 ] To explain the increase in the fees owing from the 2020 Pre-Bills to the 2022 Bills, Mr. Harding submitted that the Pre-Bills were not final bills and as such, he was entitled to revise the amounts owing by including his hours for work on various tasks. However, as detailed above, Mr.

Harding has done more than include his hours for tasks on the 2022 Pre-Bills, such as revising narratives to justify charging fees where none were charged before, and including interest accruing for the taxable disbursements since the 2020 Pre-Bills were issued. I accept that Mr. Harding, the junior lawyers and, in particular, his support staff performed work for the Client over the course of the retainer that helped to advance the Client’s Actions. It is problematic to recreate time entries well after the fact, in this case, several years, as evidenced in the multiple discrepancies and errors I detailed above.

As such, I find the time recorded on the Pre-Bills supporting the 2022 Bills to be inherently unreliable and that as a result, Mr. Harding has not established that all of the fees he claims were reasonably necessary and proper to the conduct of the Tort Action and the MV Action. [ 122 ] I also find that there are problems with respect to the disbursements charged and, as noted, Mr. Harding did not tender any evidence of his assistants or paralegals explaining the disbursements or include any supporting invoices.

For example, all of the Pre-Bills simply list “photocopies” without a date, some are for a set amount, and some indicate a number of pages at a charge of $0.35 per page. There are also several charges for “printing” without a date and again, some for a set amount, some listing the number of pages at a charge of $0.20 per page, or $0.30 per page, with no explanation. The Tort Action Pre-Bills include fees paid to Mosaic

Interpretation

Services in July 2017, as well as to All-Star Reporting in August and September 2017. The evidence was that Mr. Harding commenced an EFD of Mr. Bachra in February 2017, but it was discontinued and did not resume until 2018. The Tort Action Pre-Bills also include two charges to B.C.

Land Title & Survey for $24.00 each in January and February 2019, without explanation. [ 123 ] Considering the circumstances of this case, as well as all of the factors outlined above, I find that a fair fee for the 2022 Bills together for both of the Client’s Actions is $20,000, inclusive of disbursements, and applicable taxes, and any interest owing on the disbursements.

Costs [ 124 ] With respect to the costs of the LPA review, s. 72(1) of the LPA provides that the costs of an LPA review must be paid by the lawyer whose bill is reviewed “if 1/6 th or more of the total amount of the bill is subtracted from it”, or by the client “if less than 1/6 th of the total amount of the bill is subtracted from it”.

Section 72(2) provides the registrar the discretion “in special circumstances” to order the payment of costs other than as provided in subs. 72(1) and s. 73 provides that the registrar may summarily determine the amount of the costs of the review and add it to the amount shown on the certificate. [ 125 ] As the Bill has been reduced by more than 1/6 th , the Client is entitled to the costs of the review hearing under s. 72(1) (

a) of the LPA . Costs in LPA review hearings are normally awarded on a party and party basis, and can include units under Items 1, 2, 24, 25 and 41 of the Tariff. [ 126 ] Throughout the hearing and at the PHCs, the Client’s ongoing hostility towards Mr. Harding was evident and he was emotional during their interactions. Neither party made submissions on costs of the hearing. In my view, a further hearing to assess the Client’s costs of the one-day LPA review would add additional time and expense to these proceedings. Exercising my discretion under s. 73(2) (

b) of the LPA , I have summarily determine

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