COURT FILE AND PARTIES

COURT FILE NO.: CV-10-396687
DATE: 20120424
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mary Lou Parker, Plaintiff

AND:

Kathleen Braid, Defendant

BEFORE: Carole J. Brown J.

COUNSEL:
Warren Milne, for Ms. Parker
Kathleen Braid, self represented

HEARD: January 16, 2012

ENDORSEMENT

[ 1 ] Kathleen Braid (the “defendant” or “Ms. Braid”) retained Mary Lou Parker (the “plaintiff” or “Ms. Parker”) to represent her interests in a family law matter. Over a period of two years, Ms. Braid was billed a total of $93,275, plus GST. In payment of her account, Ms. Braid paid to Ms. Parker a total of $18,366.75. The balance remained outstanding.

[ 2 ] Ms. Parker brought this action seeking payment of the balance of the outstanding accounts. Ms. Parker claims as against Ms. Braid the amount of $70,414.69 for her outstanding legal fees, disbursements and GST, plus interest at the rate prescribed by the Solicitors Act from 31 days after the final account was rendered. At the trial, the amount claimed was revised to $70,442.77, plus interest @ 5%, pursuant to the provisions of the Solicitors Act , in the amount of $3,522.14. Ms. Parker did not move to amend her Statement of Claim for purposes of claiming above the originally claimed $70,414.69.

[ 3 ] Ms. Braid brought a counterclaim for a total amount of $115,407.86, alleging that Ms. Parker caused her to lose her job, was negligent in the work she undertook, breached Ms. Braid’s confidentiality and charged excessive amounts for the work done.

[ 4 ] Ms. Braid has counterclaimed in the amount of $62,767.00 for lost wages due to Ms. Parker’s alleged harassment of her, and negligence on the part of Ms. Parker, as well as reimbursement of child support payments which she had authorized be directed to the plaintiff, to be put toward legal fees owing to the plaintiff.

The Claim

[ 5 ] Ms. Braid consulted with Ms. Parker in or about October of 2007 with respect to setting aside the separation agreement which had been executed between herself and her husband in January 2007, just nine months before. It was the evidence of Ms. Parker that she was consulted and ultimately retained for purposes of setting aside the separation agreement; a change in custody of the child of the marriage to obtain sole custody of the son due to Ms. Braid’s concerns about her husband’s abuse of alcohol and drugs during his periods of access; property and equalization claims; child support; spousal support and a divorce. It is the evidence of Ms. Braid that she consulted with Ms. Parker to determine her options regarding the setting aside of the separation agreement due to misrepresentation of the husband’s income. Ms. Braid alleges that Ms. Parker expanded or broadened the mandate and scope of the retainer to include sole custody, child and spousal support and property claims. She alleges that after two years and, to this day, she has not obtained a divorce and that the only result achieved by Ms. Parker, after two years of proceedings and final settlement, was increased child support. Whether the mandate was that urged by Ms. Braid or the broader scope indicated by Ms. Parker, after consultation between the plaintiff and defendant, Ms. Parker prepared the Application which was reviewed and signed by Ms. Braid. This Application, signed by the defendant and filed with the Kitchener Family Court, sought the broader relief as stated by the plaintiff.

[ 6 ] The retainer agreement between the plaintiff and the defendant was verbal and not written. The parties are in agreement that the hourly fee to be charged by Ms. Parker was $325.00 an hour and that Ms. Parker agreed to continue to bill Ms. Braid at that rate during the course of the proceedings, despite the fact that her hourly rate would increase on an annual basis. Ms. Parker states that she discussed with Ms. Braid the estimated costs, which she testified would normally amount to $60,000.00 to $70,000.00 for this type of case. Ms. Braid states that no estimate of costs was discussed. Ms. Parker testified that she did not request a monetary retainer. Ms. Braid testified that Ms. Parker initially requested a $7,000.00 retainer, but that Ms. Braid made Ms. Parker aware that she was not able to pay such an amount and this was, accordingly, not pursued. Whether a monetary retainer was initially requested or not, it is clear from the evidence that no retainer was paid.

[ 7 ] The parties agree that no written retainer was entered into. Ms. Braid, in her submissions, raised this as an issue. While it is always practical to have a written retainer, in order to document the mandate and scope of the retainer, as well as the fee structure, there is no question that there was a retainer in the circumstances of this case. There is further, no question that a solicitor-client relationship was present between the parties in the circumstances of this case, as all indicia of such a relationship are present. This includes a file opened by Ms. Parker, meetings and correspondence between Ms. Parker and Ms. Braid, bills rendered by Ms. Parker to Ms. Braid and paid by her, instructions given by Ms. Braid to Ms. Parker and acted upon by Ms. Parker, briefs filed by Ms. Parker on behalf of Ms. Braid, and attendances at court.

[ 8 ] Based on the monthly statements submitted in evidence in this trial, Ms. Parker provided these services to Ms. Braid between January 16, 2008 and December 12, 2009. The itemized accounts indicate that Ms. Parker prepared a pleading, the Application to set aside the separation agreement and the Application for divorce, prepared affidavits, documents briefs, attended and conducted examinations for discovery, prepared a case conference brief, attended the case conference, prepared for and conducted a settlement conference, which resulted in settlement of the Application pursuant to Minutes of Settlement, and travelled between Toronto and Kitchener/Waterloo for the discoveries and court proceedings.

[ 9 ] Based on the final order of Quinn J. of the Kitchener Court dated November 16, 2009, it appears that the outcome of the proceedings included an increase in monthly child support in the amount of $275.00 per month, which was agreed upon in negotiations between the husband and wife; involvement of the Children’s Lawyer, which resulted in findings by the Children’s Lawyer that the husband was not abusing drugs and alcohol in the presence of their son when he was in the husband’s custody; an undertaking by the husband to refrain from such activity while in a caregiving position; and implementation of the recommendations of the Children’s Lawyer in order to assist the parties with respect to enhancing communication strategies between them on issues relative to the child of the marriage to ensure a positive and productive environment, without adult conflict in the presence of the child. This resulted in the parties retaining joint custody of their son. No divorce has, as yet, been granted. It is the evidence of Ms. Parker, supported by correspondence from her to Ms. Braid, that the Application for divorce and the documentation required to finalize the divorce were prepared and sent to Ms. Braid, who has refused to sign and return the documentation.

[ 10 ] Ms. Parker sent monthly bills to Ms. Braid. Ms. Braid paid what she was able to at the end of each month, but was never able to pay the full monthly accounts, as and when rendered. As at May 11, 2009, the amount outstanding was $40,874.74. After May of 2009, Ms. Parker no longer sent monthly bills, due to the fact that Ms. Braid was not paying the account and Ms. Parker did not wish to incur the sales tax consequences of continuing to bill for amounts that were not being paid in a timely manner. As at December 2009, when the final account was rendered, Ms. Braid had paid approximately $18,366.75 for legal services, leaving a balance owing of $72,714.69.

[ 11 ] In December of 2008, Ms. Parker requested that Ms. Braid satisfy her outstanding account balance by giving her security on Ms. Braid’s home. Ms. Braid refused. In June of 2009, Ms. Parker again suggested this solution to Ms. Braid regarding the outstanding account owing by her. Again, Ms. Braid refused.

[ 12 ] The evidence indicates that Ms. Braid never inquired or complained about the monthly accounts as she received them or questioned the work undertaken on her behalf. She stated that her estimation of fees which might be incurred for the proceedings undertaken was $10,000.00 to $15,000.00, but when her account reached that amount in October of 2008, she did not question Ms. Parker regarding the fees. It is not evident as to what her estimate was based on, as it was her evidence that Ms. Parker never gave her an estimate. She testified that she “realized it was not worth proceeding” in November of 2008, but admitted that she never instructed Ms. Parker not to proceed to settle, or to attempt to settle. Nor did she end the relationship with Ms. Parker or seek a second opinion.

[ 13 ] Ms. Braid testified that she “wanted out” of the proceedings, and wondered why Ms. Parker did not withdraw her services as she was not being paid. However, there is no evidence to indicate that she requested Ms. Parker to withdraw her services. Indeed, to the contrary, Ms. Braid testified that she “pleaded” with Ms. Parker to continue to represent her despite the outstanding account. Ms. Parker testified that, despite the outstanding fees owing, she did not have herself removed from the record because she felt a duty to the client and also because she was concerned that the judge would not permit her to be removed at that juncture.

[ 14 ] With respect to payment of the amounts outstanding, Ms. Braid testified that she had not realized how long and protracted and expensive such a process would be. This is not an uncommon reaction on the part of clients involved in litigious proceedings, such as family law proceedings.

[ 15 ] While she conceded in cross-examination that Ms. Parker was entitled to be paid for work done, it was her position that, in this case, there was work that was not necessary, that was duplicative, was not done efficiently or was sloppy and unprofessional. This will be dealt with regarding the counterclaim, below.

[ 16 ] I accept Ms. Braid’s testimony that she felt responsible for payment of Ms. Parker’s fees, and made attempts to pay what she could. I find that Ms. Braid made efforts to pay what she could at the end of each month. Her annual income was approximately $60,000.00. Her evidence indicates that she had numerous financial obligations, including expenses related to her home, her son, a mortgage, the automobile, monthly bills and the upkeep of her horse, which she boarded.

[ 17 ] Following commencement of this action on February 8, 2010, Ms. Braid requested an assessment of the account. Ms. Parker refused to consent. Also following commencement of the action, Ms. Braid requested a copy of her client file from Ms. Parker. Ms. Parker’s response, on October 1, 2010, was that she would release the file if Ms. Braid paid her fees. At the trial, Ms. Braid was unable to adduce certain documentary evidence, indicating that it was contained in her file. I ordered Ms. Parker to provide access to the file, which was done.

(Decision continues in the same format.)

Carole J. Brown J.

Date: April 24, 2012