Should anyone deserve to be paid after dragging a job out for 2 and a half years and then quit just before any benefit can be realized? With work to be done in a timely matter, put off?
"Due the amount of information gained at the discovery stage, cases are often settled shortly thereafter without having to go to trial." - discoveries are to be held well in advance of trial - Guide to Civil Litigation - Arranging an Examination for Discovery - Rule 27.
but there'd been no discovery conducted in advance of the 1st trial date of Oct. 17th, 1994, adjourned when Whittemore's lawyer, Adam Whitcomb quit. The Law Society appointed another lawyer for Whittemore...
My lawyer, Grant Hardwick finally conducted his discovery of Whittemore, a month prior to the 2nd trial date. Messeurs Hardwick and Geekie quit with just one working day left before that 2nd trial date. I had the presence of mind to tape-record the conversation.
Hear Grant Hardwick assure me that there would be 5 cents remaining As I scan more exhibits, they will be posted. - dht
3 Shortly before the trial, the solicitors and client had a falling out, the result of which was that Mr. Thomson conducted the trial on his own behalf. He was not successful in the trial and the defendant was awarded his costs.
Let's be clear - I'd lost close to fifty thousand dollars. The day they quit, Grant Hardwick said
of a settlement offer of $7,500.00, saying it was the best that I could do. "How much of a $7,500.00 settlement would be left after they took their fees?".4 The matter first came before this master on March 22,1995 wherein Mr. Hardwick and Mr. Geekie gave their evidence.
Hardwick's "official reason" for quitting was that I'd become "shrill". You bet I became "shrill"; who wouldn't!
5 Mr. Thomson's only objection at that time was that the solicitor should not be paid as they have not seen his matter through to conclusion.
Should anyone be paid, even though it seems that they had no intention of doing the work, even while they agreed to do the job? After all, I was suing a lawyer.
What if it's discovered that court documents that were in their control have been tampered with?
6 The hearing was adjourned on the basis that Mr. Thomson would review the accounts of the solicitors and to inform them of any specific matters in those accounts to which he objected.
7 The matter was next before me on June 7, 1995 and, due to a lack of court time, it was adjourned until August 4, 1995. On that date, the matter was again adjourned, this time to the trial coordinator to fix a new date. That new date was October 2, 1995.
8 Unfortunately, on that date, the matter was adjourned once again as this master had already heard part of the evidence in the proceedings and was not sitting in Kelowna on that day.
9 The next date set for the hearing was April 11, 1996. At the commencement of that hearing, Mr. Geekie advised that Mr. Thomson had not yet complied with my order made March 22, 1995. The matter was adjourned until May 13, 1995 at 3:00 p.m. and an order was made that Mr. Thomson file an affidavit setting out his specific objections to items in the account rendered, and that he serve it on or before April 30, 1996.
Master Bishop appears to be having trouble keeping track of dates, here. By then, it was 1996 for the entire year...10 Mr. Thomson, for the second time, did not comply with the order and on May 13, 1996 the hearing reconvened.
Is Master Bishop niggling over accounting for billable hours and disbursments? Should that preside over gross ethical mis-conduct? 11 Mr. Thomson appeared at the hearing in what may be
fairly described as a dissociated state and after listening to
Mr. Thomson's presentation for some time, the master ordered that
he undergo a psychiatric evaluation to determine his fitness to
conduct the case on his own behalf. Mr. Thomson agreed with this
procedure and an evaluation was conducted by Dr. Gary Lee. That
evaluation resulted in a finding that Mr. Thomson, although he
has some psychological difficulties, was mentally competent to
conduct his affairs and these proceedings. Master Bishop had enough evidence before him to warrant summary convictions for criminal fraud; instead, he ordered me to undergo a psychiatric evaluation.
Where did Master Bishop get the notion that I would be competent to act as Counsel, knowing (if he bothered to read my sworn affidavit) that I posess a mere grade 10 education? Dr. Lea wrote in his report that I "would be able to understand courtroom proceedure competently and advise Counsel".
And I didn't "agree", I merely complied. 12 The matter was set down by praecipe for October 21,
1995 and subsequently adjourned by praecipe to July 15, 1996. What became of the March (1996), April (1996) and May (1996) hearings?
13 At the hearing Mr. Thomson reiterated his concern
that he was left unrepresented to conduct the trial and that the
solicitors' work, therefore, had no value to him. 14 He pleaded with the court to be compassionate in
the circumstances of his case. 15 Mr. Thomson originally retained Mr. Hardwick and
Mr. Geekie to act on his behalf at the hourly rates of $175.00 and
$110.00 per hour respectively. (Exhibits #1). 16 Exhibit #2 is a similar contract dated November of
1993. Exhibit #3 is a breakdown of the time spent on the action
that was before Mr. Justice Hunter. That time spent represents,
in fees, the sum of $5,295.20 out of an entire account of $9,066.00.
Both of these figures exclude PST and GST. Exhibits "1" and "2" were accompanied by a letter that explained what Hardwick and Geekie would be doing for me; their "written undertaking". Master Bishop finally accepted the letter as exhibit "6".
Undertaking: "An unequivical declaration of intention to do or refrain from doing something, made by a solicitor, whether orally or in writing and addresses to someone who places reliance on it" - Council of the Law Society of England. 17 In paragraph 10 of his most recent affidavit filed
July 15, 1996, he indicated that during settlement negotiations
with Mr. Hardwick, Mr. Hardwick indicated to him that if the action
against the solicitor was settled in the amount of $7,500.00 there
would be change left over after payment of the legal account. 18 Mr. Thomson, therefore, indicates that that should
be the upper limit of the monies payable by him to the solicitors. Let's be clear - I'd lost close to fifty thousand dollars. My statement in paragraph 10 was a reiteration of a question that I'd put to Grant Hardwick; "How much of a $7,500.00 settlement would be left after they removed their fees?"
19 The starting point for this review is Mr. Thomson's
contention that the solicitors abandoned him shortly before trial
and that was the reason he was unsuccessful. Solicitors are extensively trained over more than several years, in law and courtroom proceedures; with my adjournment, I had 3 months to learn. I spent the first month or more, trying to get my files back from Salloum Doak while they "prejudiced my ability to proceed with a matter that was already imminent before the courts".
20 Assuming, for the purposes of these reasons that that
contention is true, Mr. Thomson could easily have elected to apply
for an adjournment of the trial based on his solicitors' last
minute withdrawal. Instead he elected to proceed with the trial.
That trial lasted three days in Kelowna and one day in Kamloops.
More will be said of this later. Ahhh, but I did get an adjournment
Not according to such Authorities as Paragraphs 9 & 10 of the Canons of Legal Ethics from the Professional Conduct Handbook - just for starters.
"Undertakings should be written or confirmed in writing..." - Canadian Bar Association Code of Professional Conduct.
21 The next contention of Mr. Thomson is that the solicitors' work had no value to him.
Two and a half years had gone by, waiting to be paid out what Grant Hardwick had referred to as "the lion's share of the sale-price of my business." It effectively halted all aspects of my projected business plans - I never saw a penny more of what was owed to me.
22 Needless to say, the solicitors' pleadings were
sufficient to carry Mr. Thomson through a four day trial in front
of The Honourable Mr. Justice Hunter.
It was not so much any "solicitor's pleadings" that took 4 days; hearing witness testimony in examination and cross-examination took up most of the time, aside from submitting and disputing evidence. (Me arguing relevence with Judge Hunter, much like when I argued relevence with Bishop over the "Solicitors' Undertaking".
23 As to both contentions, that is Mr. Thomson's lack of representation and the apparent worthlessness of the solicitors' work, neither of those are mentioned as a reason that the action was dismissed. As I read the reasons for judgment, the learned justice preferred the evidence of the solicitor over the evidence of Mr. Thomson and found that the client had not proved that the solicitor failed to meet the standard of care on a balance of probabilities and thus dismissed the action.
To be specific, Justice Hunter said that I had not proved to his satisfaction - and Justice Hunter was blatently biased
. Master Bishop had enough of that evidence before him, also.24 Be that as it may, Mr. Thomson's objections as voiced apply only to the action against the solicitors and it is to be noted that these solicitors were retained to act on two matters and the account was rendered in respect of both matters. With respect to the fees portions of the account, Exhibit #3, the solicitors' action, shows total time spent in the amount of $5,295.20 while Exhibit #4, the second action, shows total time spent in the value of $5,020.80.
25 I cannot determine nor was there any evidence given with respect to the breakdown in the actual bill in the amount of $9,066.00. There was no evidence given before me as to why the discount was given nor on which file it was given and, therefore, I allocate the fee portion of the account as $4,500.00 to the Valley Waste action and $4,566.00 to the action against the solicitor. I acknowledge that this is an arbitrary allocation of the fees.
26 As only the Whittemore fees are before me, I have
reviewed the account bearing in mind the factors set out in the
Legal Profession Act and will allow the fees at $4,000.00.
Therefore, the total fees allowed are $8,500.00 in respect of
the two actions. To this must be added GST and PST in the amount
of $1,190.00 for a total of the fee portion of $9,690.00.
The fact remains that they quit before either matter went to trial, contrary to our written agreement.
There's no mention of their written undertaking anywhere in this decision (save my comments). I guess a lawyer can promise a client anything, deliver nothing and still expect to get paid.
But he filed it in Vernon; see the stamp?
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