Davis & Co. v. Jiwan et al., (2008) 262 B.C.A.C. 283 (CA)

• Judge: Finch, C.J.B.C., Lowry and Bauman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 01, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 262 B.C.A.C. 283 (CA);2008 BCCA 494

Davis & Co. v. Jiwan (2008), 262 B.C.A.C. 283 (CA);

    441 W.A.C. 283

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. DE.018

Aly F. Jiwan, Abdul F. Jiwan and Redbrick Properties Inc. (appellants/clients) v. Davis & Company, a Partnership (respondent/solicitors)

(CA035642; 2008 BCCA 494)

Indexed As: Davis & Co. v. Jiwan et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Lowry and Bauman, JJ.A.

December 1, 2008.

Summary:

The clients retained the solicitors in respect of sundry litigation arising out of certain disputes among the partners in various real estate holdings. The retainer commenced in October 1995 and concluded when the solicitors terminated the relationship in July 2001 because of a perceived allegation of negligence against the solicitors by the clients. The solicitors' withdrawal came after all of the proceedings had been settled in a comprehensive court approved agreement but before that agreement was completely performed. Over the course of the retainer, the solicitors rendered accounts for fees of just over $991,000 plus disbursements. Dissatisfied, the clients filed an appointment under the Legal Profession Act for a review of the accounts.

A Registrar of the British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. 658, confirmed fees of $700,000, a reduction of over $290,000 from the fees charged by the solicitors. The clients appealed.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. 984, dismissed the appeal. The clients appealed.

The British Columbia Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 1583

Relationship with client - Termination of relationship - Withdrawal by lawyer - General - The clients retained the solicitors in respect of sundry litigation arising out of certain disputes among the partners in various real estate holdings - The retainer commenced in October 1995 and concluded when the solicitors terminated the relationship in July 2001 because of a perceived allegation of negligence against the solicitors by the clients - The solicitors' withdrawal came after all of the proceedings had been settled in a comprehensive court approved agreement but before that agreement was completely performed - Over the course of the retainer, the solicitors rendered accounts for fees of just over $991,000 plus disbursements - Dissatisfied, the clients filed an appointment under the Legal Profession Act for a review of the accounts - A Registrar confirmed fees of $700,000, a reduction of over $290,000 from the fees charged by the solicitors - The clients' appeal was dismissed (per Myers, J.) - The clients appealed again, asserting that the Registrar and Myers, J., erred in concluding that the solicitors were entitled to withdraw and did not thereby disentitle themselves to fees - The British Columbia Court of Appeal dismissed the appeal - There was ample evidence of the solicitors' subjective belief that the clients were alleging negligence against them - In determining that there was an objective basis for it, Myers, J., looked at the evidence as a whole - Myers, J., properly assessed the evidence - With regards to the notice, there was no error in Myers, J.'s conclusion that the short notice was reasonable - In any event, the clients had admitted that they suffered no prejudice by the solicitors quickly withdrawing from the retainer - See paragraphs 22 to 47.

Barristers and Solicitors - Topic 3177

Compensation - Agreements - The retainer - Termination of - [See Barristers and Solicitors - Topic 1583 ].

Barristers and Solicitors - Topic 3303

Compensation - Measure of compensation - Relevant considerations - The clients retained the solicitors in respect of sundry litigation arising out of certain disputes among the partners in various real estate holdings - The retainer commenced in October 1995 and concluded when the solicitors terminated the relationship in July 2001 because of a perceived allegation of negligence against the solicitors by the clients - The solicitors' withdrawal came after all of the proceedings had been settled in a comprehensive court approved agreement but before that agreement was completely performed - Over the course of the retainer, the solicitors rendered accounts for fees of just over $991,000 plus disbursements - Dissatisfied, the clients filed an appointment under the Legal Profession Act for a review of the accounts - A Registrar confirmed fees of $700,000, a reduction of over $290,000 from the fees charged by the solicitors - The clients' appeal was dismissed (per Myers, J.) - The clients appealed again, asserting that Myers, J., did not address "the clients' argument ... that [the] Registrar ... erred in law by accepting the solicitor's evidence on matters of advice given to the clients" - The clients asserted that Myers, J., should have applied the Waldock "rule" (Waldock v. Bissett (B.C.C.A., 1992)) that decision makers should accept the evidence of the clients over the evidence of their solicitors where findings of credibility had not been made and where there was no other evidence tipping the scales in favour of one version of events over the other - The British Columbia Court of Appeal dismissed the appeal - The Registrar made an express and unfavourable finding as to the credibility of the clients - Accordingly, no error, based on the application of the so-called Waldock "rule" could be sustained - See paragraphs 49 to 54.

Barristers and Solicitors - Topic 3303

Compensation - Measure of compensation - Relevant considerations - The clients retained the solicitors in respect of sundry litigation arising out of certain disputes among the partners in various real estate holdings - The retainer commenced in October 1995 and concluded when the solicitors terminated the relationship in July 2001 because of a perceived allegation of negligence against the solicitors by the clients - The solicitors' withdrawal came after all of the proceedings had been settled in a comprehensive court approved agreement but before that agreement was completely performed - Over the course of the retainer, the solicitors rendered accounts for fees of just over $991,000 plus disbursements - Dissatisfied, the clients filed an appointment under the Legal Profession Act for a review of the accounts - A Registrar confirmed fees of $700,000, a reduction of over $290,000 from the fees charged by the solicitors - The clients' appeal was dismissed (per Myers, J.) - The clients appealed again, asserting that Myers, J., did not address the Registrar's alleged error in "granting a quantum meruit fee based upon a 'matter of principle' when the clients were not properly advised as required by the authorities" - The British Columbia Court of Appeal dismissed the appeal - The Registrar did not base the fee which she set upon a "matter of principle" foundation - The "matter of principle" finding did not serve to justify the fees charged by the solicitors - On the contrary, the Registrar's analysis formed part of the basis for her very substantial deduction from the fees billed - There was no reviewable error - See paragraphs 55 to 58.

Barristers and Solicitors - Topic 3303

Compensation - Measure of compensation - Relevant considerations - The clients retained the solicitors in respect of sundry litigation arising out of certain disputes among the partners in various real estate holdings - The retainer commenced in October 1995 and concluded when the solicitors terminated the relationship in July 2001 because of a perceived allegation of negligence against the solicitors by the clients - The solicitors' withdrawal came after all of the proceedings had been settled in a comprehensive court approved agreement but before that agreement was completely performed - Over the course of the retainer, the solicitors rendered accounts for fees of just over $991,000 plus disbursements - Dissatisfied, the clients filed an appointment under the Legal Profession Act for a review of the accounts - A Registrar confirmed fees of $700,000, a reduction of over $290,000 from the fees charged by the solicitors - The clients' appeal was dismissed (per Myers, J.) - The clients appealed again, asserting that the solicitors were precluded by their conduct from claiming what the clients asserted was a wholly equitable remedy of quantum meruit - The clients argued that the solicitors breached the Act by holding out "XLS" as an unidentified lawyer and that their "unclean hands" precluded equitable relief - The British Columbia Court of Appeal dismissed the appeal - Whether a quantum meruit assessment of the value of legal services was an equitable or contractual remedy mattered little - Even if it was a purely equitable claim, nothing in the "XLS" issue could be said to amount to misconduct which would in any way disentitle the solicitors to a fee based on quantum meruit - See paragraphs 59 to 63.

Barristers and Solicitors - Topic 3303

Compensation - Measure of compensation - Relevant considerations - The clients retained the solicitors in respect of sundry litigation arising out of certain disputes among the partners in various real estate holdings - The retainer commenced in October 1995 and concluded when the solicitors terminated the relationship in July 2001 because of a perceived allegation of negligence against the solicitors by the clients - The solicitors' withdrawal came after all of the proceedings had been settled in a comprehensive court approved agreement but before that agreement was completely performed - Over the course of the retainer, the solicitors rendered accounts for fees of just over $991,000 plus disbursements - Dissatisfied, the clients filed an appointment under the Legal Profession Act for a review of the accounts - A Registrar confirmed fees of $700,000, a reduction of over $290,000 from the fees charged by the solicitors - The clients' appeal was dismissed (per Myers, J.) - The clients appealed again, asserting that the Registrar and Myers, J., erred in allowing the solicitors to withdraw certain accounts and substitute higher ones - The British Columbia Court of Appeal dismissed the appeal - There was no reviewable error - The solicitors reviewed their accounts at the clients' insistence - It would be unfair to give the clients the benefit of the accommodation offered by the solicitors when the clients then sought to review the accommodated accounts - See paragraphs 73 to 76.

Barristers and Solicitors - Topic 3303

Compensation - Measure of compensation - Relevant considerations - The clients retained the solicitors in respect of sundry litigation arising out of certain disputes among the partners in various real estate holdings - The retainer commenced in October 1995 and concluded when the solicitors terminated the relationship in July 2001 because of a perceived allegation of negligence against the solicitors by the clients - The solicitors' withdrawal came after all of the proceedings had been settled in a comprehensive court approved agreement but before that agreement was completely performed - Over the course of the retainer, the solicitors rendered accounts for fees of just over $991,000 plus disbursements - Dissatisfied, the clients filed an appointment under the Legal Profession Act for a review of the accounts - A Registrar confirmed fees of $700,000, a reduction of over $290,000 from the fees charged by the solicitors - The clients' appeal was dismissed (per Myers, J.) - The clients appealed again, asserting that the Registrar and Myers, J., allowed a fee that was grossly disproportionate to the results achieved or the amount involved - The British Columbia Court of Appeal dismissed the appeal - It was clear that the Registrar considered these issues at length - As well, she dealt separately and at length with each of the express considerations set out in s. 71(4) of the Act - The clients were simply inviting this court to substitute its view of a fair fee for that of the Registrar - That was not the object of appellate review - See paragraph 77.

Barristers and Solicitors - Topic 3304

Compensation - Measure of compensation - Quantum meruit - Reasonable charges - [See second and third Barristers and Solicitors - Topic 3303 ].

Cases Noticed:

Schober v. Walker (2008), 253 B.C.A.C. 77; 425 W.A.C. 77; 77 B.C.L.R.(4th) 186; 2008 BCCA 19, refd to. [para. 14].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 16].

Noble et al. v. Bromiley, [1928] 2 D.L.R. 605; 39 B.C.R. 518, refd to. [para. 18].

Morrison Voss v. Smith (2007), 243 B.C.A.C. 31; 401 W.A.C. 31; 69 B.C.L.R.(4th) 290; 2007 BCCA 296, consd. [para. 28].

Moore v. Expansion Holdings Ltd. et al. (1994), 47 B.C.A.C. 201; 76 W.A.C. 201; 96 B.C.L.R.(2d) 178 (C.A.), refd to. [para. 38].

Stieber v. Canada (Attorney General) (2004), 194 B.C.A.C. 26; 317 W.A.C. 26; 24 B.C.L.R.(4th) 49; 2004 BCCA 44, refd to. [para. 38].

JJM Construction Ltd. v. Sandspit Harbour Society et al., [2000] B.C.A.C. Uned. 47; 83 B.C.L.R.(3d) 293 (C.A.), refd to. [para. 38].

Ha et al. v. Mayar et al. (1999), 130 B.C.A.C. 294; 211 W.A.C. 294; 69 B.C.L.R.(3d) 326; 1999 BCCA 667, refd to. [para. 41].

Ha v. Fritzke - see Ha et al. v. Mayar et al.

Waldock and Collette v. Bissett (1992), 13 B.C.A.C. 203; 24 W.A.C. 203; 67 B.C.L.R.(2d) 389 (C.A.), refd to. [para. 51].

Solicitor, Re, [1969] 9 D.L.R.(3d) 420 (B.C.C.A.), refd to. [para. 73].

Counsel:

Aly and Abdul Jiwan, appellants, appeared in person;

G. Turriff, Q.C., for the respondent.

This appeal was heard on September 29 and 30, 2008, at Vancouver, B.C., by Finch, C.J.B.C., Lowry and Bauman, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bauman, J.A., on December 1, 2008.