Court File and Parties

COURT FILE NO.: CV-12-00447386

DATE: 20120219

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stewart Du Vernet (Plaintiff/Moving Party) and Sandra Jones (Defendant/Responding Party)

BEFORE: Allen J.

COUNSEL: Christopher Du Vernet, for the Plaintiff/Moving Party Paul Koven, for the Defendant/Responding Party

HEARD: January 28, 2013

Endorsement

BACKGROUND FACTS

[1] On February 28, 2012, the plaintiff, Steward Du Vernet, a lawyer, filed a statement of claim against the defendant, Sandra Jones, a past client of his, seeking damages for the balance of legal fees he alleges are owing to him. Ms. Jones filed a defence and counterclaim denying the claim and counterclaiming for the return of $50,000 in fees she had paid. Mr. Du Vernet seeks summary judgment for the balance of fees for legal services rendered from January 2010 to February 2012.

[2] Ms. Jones was employed in the IT Department of the Bank of Montreal (“the BMO”). In January 2010, she approached Mr. Du Vernet with the prospect of suing a co-worker for invasion of privacy. The co-worker had gained unauthorized access on numerous occasions to Ms. Jones’ financial records at the bank.

[3] Mr. Du Vernet was initially retained to do research in the area of invasion of privacy which he did. He advised Ms. Jones there were no Canadian cases on the common law right to privacy but there were cases that appeared to support such a claim. The parties entered a retainer agreement dated March 2, 2010 which, in addition to setting hourly fees, also contained warnings about the risks of being unsuccessful; the risk of prolonged litigation; costs consequences; and the right of appeal.

[4] The retainer was on a “deferred fees” basis. The accounts would not be payable until the case was concluded by settlement, judgment or otherwise; or either the lawyer or client terminated the retainer. Ms. Jones signed the retainer on March 15, 2010.

[5] Ms. Jones brought a summary judgment motion on the invasion of privacy claim but was unsuccessful. Ms. Jones then brought an appeal to the Court of Appeal where Ms. Jones was successful. The Court of Appeal by unanimous decision dated January 18, 2012, set aside the decision of the motion court and founded the novel tort of “intrusion upon seclusion” and in another novel move set a $20,000 cap on damages. Ms. Jones recovered $10,000 damages. Mr. Du Vernet conducted the appeal on a deferred fee basis. Ms. Jones at first wished to appeal the damage award to the Supreme Court of Canada but she changed her mind about seeking leave, although Mr. Du Vernet again offered to defer fees.

[6] The total billing for legal services and disbursements was $127,607. Ms. Jones gave an assignment to Mr. Du Vernet on any judgment she might obtain. Mr. Du Vernet collected the $10,000 awarded by the Court of Appeal. After Mr. Du Vernet issued his statement of claim against Ms. Jones, Ms. Jones paid $50,000 toward the legal account. It is that $50,000 that she seeks to recover through her counterclaim. The net amount Mr. Du Vernet seeks is $67,607.46.

ISSUES

[7] Counsel for Ms. Jones on this motion initially sought that this matter in its entirety be referred to an Assessment Officer for determination on costs. However, this matter does not involve only the issue of the quantum of legal fees.

[8] Though Ms. Jones disputes the amount of fees, she bases her position on allegations about Mr. Du Vernet’s professional conduct, such as failure to give proper advice, failure to represent her interests and breach of fiduciary duty, etc. I have been provided with an ample record from which to determine conduct related issues. As will be seen, I ultimately do not accept Ms. Jones’ allegations in that regard. I however have not been provided with a sufficient record of billing particulars to allow me to make a decision on the quantum of legal fees.

[9] I therefore have decided, as allowed under to Rule 54.02(1) of the Rules of Civil Procedure, to bifurcate the proceeding and grant partial summary judgment on professional conduct issues and refer the quantum of fees to an assessment officer.

LAW GOVERNING MOTIONS FOR SUMMARY JUDGMENT

[10] When a party moves for summary judgment, in order for the other party to successfully resist the motion, they must adduce evidence of material facts requiring determination at a trial. The party seeking judgment has the legal burden to prove there is no genuine issue requiring a trial. The evidentiary burden is then on the opposing party to establish evidence of a triable issue [Soper v. Southcott, [1998] O.J. No. 2700 (Ont. C.A.) at para. 14].

[11] It has been said the party resisting the motion must “lead trump or risk losing” and demonstrate their case has a real chance of success at trial. The motions court is entitled to assume the evidence contained in the motion record is all the evidence the parties would rely on if the matter proceeded to trial. [1061590 Ontario Limited v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 at 557 (Ont. C.A.), and Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, at 265, (Ont. C.A.)]. If the moving party satisfies the court there are no issues of fact required to be tried, the moving party will succeed in obtaining summary judgment [Soper, supra, at para. 14].

[12] The Ontario Court of Appeal in Combined Air, infra, has spoken more recently on when an order for summary judgment under Rule 20.04(2.1) is appropriate to dispose of a matter. The court held:

We find the passages set out in Housen, at paras. 14 and 18, such as “total familiarity with the case as a whole”, “extensive exposure to the evidence” and “familiarity with the case as a whole”, provide guidance as to when it is appropriate for the motion judge to exercise the powers in Rule 20.04(2.1). In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and the issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?

We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. [paras. 50 and 51]

[13] The Court of Appeal provided a distinction between the types of records that might provide the basis for summary judgment and those that are not likely to. The court held:

In some cases, it is safe to determine the matter on a motion for summary judgment because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial. In other cases, the record will not be adequate for this purpose, nor can it be made so regardless of the specific tools now available to the motion judge. In such cases, a just result can only be achieved through the trial process. This pivotal determination must be made on a case-by case basis. [para. 39]

[Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (Ont. C.A.)]

THE EVIDENCE

[14] I am satisfied that throughout his retainer Mr. Du Vernet represented Ms. Jones in an exemplarily professional fashion. He more than ably: conducted research on legal issues; repeatedly explained to Ms. Jones various optional courses of action; informed her of chances of success and the risks associated with failure; pointed out the costs consequences of choosing one course of action over another; undertook an appeal and offered to represent her in a further appeal, all on deferred fees; provided interim billings over the two years; and advised her on mitigating her loss.

[15] It was only after Ms. Jones received the final bill and was served with the statement of claim that she launched this challenge to Mr. Du Vernet’s legal services and fees.

[16] Throughout her affidavit, Ms. Jones consistently contradicts the evidence in the written record about legal advice she received, about settlement attempts, about risks and about court proceedings. The record is replete with written documentation such as e-mails, correspondence, court documents, statements of account that support Mr. Du Vernet’s evidence about the legal services he rendered. Ms. Jones pointed to no document whatsoever in the record that contradicts Mr. Du Vernet. There is no evidence on the record of Ms. Jones communicating a refusal to proceed on the basis of advice Mr. Du Vernet gave in his many written summaries of his advice.

[17] I will provide a sampling of the inconsistencies between many of Ms. Jones’ assertions in her affidavit and the written record.

[18] Ms. Jones asserts Mr. Du Vernet advised that her chances of success were high and her chance of receiving significant damages were significant. This evidence is directly contradicted by e-mails to her from as early as January 2010. She further asserts she did not know a privacy claim was a novel area of law. This too is inconsistent with e-mails and correspondence from Mr. Du Vernet in January, May, and August 2010. She contends she did not instruct Mr. Du Vernet to seek injunctive relief, but again, this is belied by her own e-mails sent in May 2010 where she says she wants the court to help stop the continued invasion of her privacy by her co-worker.

[19] Ms. Jones asserts Mr. Du Vernet assured her she would recover both damages and court costs. However, Mr. Du Vernet’s very lengthy retainer agreement, subsequent e-mails in January, June and August 2010, and a lengthy letter on May 27, 2010 contradict Ms. Jones’ assertion. Ms. Jones also asserts she was unaware of the escalating legal fees. However, the record contains five interim billings and moreover she was advised in the May 27, 2010 letter that cost increase needed to be considered in settlement negotiations. Ms. Jones also denies being warned that even if successful she might not recover her costs. Again, the record contains e-mails in June and August 2010 and a letter in December 2010 where Mr. Du Vernet addresses this matter.

[20] Ms. Jones further contends that Mr. Du Vernet brought unnecessary motions for leave for certain organizations to intervene in her proceedings. The fact is the two organizations that sought to intervene were themselves represented by their own counsel who unsuccessfully sought to intervene.

[21] Mr. Du Vernet’s law firm is small and yet it completely financed Ms. Jones’ case for two years. Needless to say, this was quite a financial undertaking that ultimately resulted in benefit to Ms. Jones. Further, the firm paid from its own resources $7,500 for an expert legal opinion on privacy law which contributed to success at the Court of Appeal. Ms. Jones requested a discount of her bill and was given a goodwill discount of $3,300.

[22] Very importantly, against considerable legal odds, Mr. Du Vernet succeeded in winning on appeal and through his efforts paved the way for the development of a new tort in Canada. This is no minor accomplishment. It would be a pleasure to the court, and most certainly to clients, if every lawyer served their clients with such attentiveness, dedication and perseverance.

[23] Certainly, clients are entitled to have an assessment of their lawyers’ fees. They cannot however be permitted to enjoy a deferred fees arrangement, benefit from able legal representation and then turn around and refuse to pay the bill, raising groundless and dishonest challenges to their lawyers’ competence.

DISPOSITION

[24] This is an appropriate case for a grant of partial summary judgment on the issue of the competence of Mr. Du Vernet’s representation of Ms. Jones. I accept that the record amply establishes the credibility of Mr. Du Vernet’s evidence about the quality of his legal services. Ms. Jones’ affidavit evidence simply does not meet the standard of trustworthiness. The conflicts in the evidence created by Ms. Jones’ affidavit are not the type of conflicts Combined Air, supra, envisaged as giving rise to the need for a trial. Much of what appear to be conflicts are not true conflicts but are rather based on a myriad of unsubstantiated, self-serving and untrue assertions.

[25] I grant the following relief:

a) a declaration pursuant to s. 97 of the Courts of Justice Act, R.S.O. 1990, c.C-43 that Mr. Du Vernet served Ms. Jones in a professional and competent manner honouring his fiduciary duty of trust to his client;

b) a dismissal of the counterclaim; and

c) a direction for a reference for an assessment officer to determine the remaining issue of quantum of legal fees and disbursements

COSTS

[26] Mr. Du Vernet was fully successful on this motion and in accordance with the principle that costs follow the event he is entitled to an award of costs.

[27] The Court of Appeal set down the principle that the objective of a determination on costs is to fix an amount the unsuccessful party is required to pay that is fair and reasonable rather than an amount reflecting the actual costs of the successful party. In deciding what is fair and reasonable, the expectation of the parties concerning the quantum of a costs award is a relevant factor [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.)].

[28] If successful, Mr. Du Vernet would seek partial indemnity costs of $16,160.21 inclusive of HST and disbursements. Ms. Jones would seek partial indemnity costs of $14,811.12 inclusive of HST and disbursements.

[29] I award partial indemnity costs of $16,000 against Ms. Jones inclusive of HST and disbursements. This award is reasonable and within the reasonable expectations of the parties.

ORDER

[30] Order accordingly.

ALLEN J.

Date: February 19, 2013