Harney (Gregory N.) Law Corp. v. Angleland Holdings Inc. et al., 2016 BCCA 262

• Judge: Saunders, Bennett and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 28, 2015
• Jurisdiction: British Columbia
• Citations: 2016 BCCA 262;(2016), 389 B.C.A.C. 229 (CA)

Harney Law v. Angleland Holdings (2016), 389 B.C.A.C. 229 (CA);

    671 W.A.C. 229

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JN.045

Gregory N. Harney Law Corporation dba Shields Harney and Gregory N. Harney, as Solicitor (respondents/solicitor) v. Angleland Holdings Inc., Nederland Holdings Inc., John English and Paradise Beach Resorts Inc. (appellants/clients)

(CA40838; 2016 BCCA 262)

Indexed As: Harney (Gregory N.) Law Corp. v. Angleland Holdings Inc. et al.

British Columbia Court of Appeal

Saunders, Bennett and Garson, JJ.A.

June 17, 2016.

Summary:

Harney, a lawyer, was retained by English and three corporate clients (collectively the clients) to provide professional services in foreclosure proceedings and an action in trespass. Harney initially sought and obtained a retainer of $10,000. A long string of communications aimed at reaching a fee agreement for Harney's services ensued as Harney worked on the files. No agreement was reached. The relationship between the parties soured. Harney sent a bill for $1,122,952.26 which was stamped "draft", in an attempt to jolt English to respond to his request to discuss the terms of their arrangement and to settle the manner of payment. Harney subsequently rendered his account for $536,224.10 to Pacific Rim Resort, a name used by the clients. The clients applied to have the account taxed. At the hearing, the clients raised the issue of their proper identification on the bill. Harney re-filed the account, naming the clients, and served the clients with the amended document.

A Master of the British Columbia Supreme Court (sitting as the Registrar), in a decision reported at [2012] B.C.T.C. Uned. 948, rejected the assertion that the retainer of $10,000 was not intended to cover all of the work undertaken by Harney and his firm. The Master found that the parties had not reached an agreement for payment of further fees. The Master taxed the fees applying the principle of quantum meruit and finding that a proper combined fee was $264,217.45. The clients appealed.

The British Columbia Supreme Court dismissed the appeal. The clients appealed. The clients' factums raised the following issues: (1) whether fresh evidence should be admitted; (2) whether the judge erred in failing to set aside the Master's decision for non-compliance with the Legal Profession Act and for not meeting the delivery requirements of the Act and the Supreme Court Civil Rules; (3) whether the judge erred in failing to recognize the Master's erroneous preference of Harney's evidence over the clients' evidence concerning the terms of the retainer agreement; (4) whether the judge erred in assessing a fee notwithstanding the unilateral termination by Harney of the retainer agreement contrary to the doctrine of entire contract; and (5) whether the judge erred in upholding the Master's assessment of fees on a quantum meruit basis in circumstances in which Harney engaged in "inappropriate, unprofessional, rude, bullying, uncooperative, hostile and threatening behaviour" in the termination of the retainer agreement. English applied to admit additional new evidence (five affidavits sworn after the judge made the impugned order). When the appeal was called on May 28, 2015, it was decided to deal with the appeal by way of written submissions due to English's health issues (Court of Appeal Act, s. 26). In his written submissions, English applied to adduce further new evidence directed to his complaint of the court's process on May 28, 2015. In doing so, he asked that each member of the division recuse herself from the appeal for reasons of conflict of interest. English complained of a lack of courtesy, the court's refusal to allow a retired lawyer to speak on his behalf, the denial of his right to make oral submissions, and the denial of the opportunity to have counsel appear on his behalf in the appeal. In his further supplemental submission, English sought to adduce further new evidence relating legal fees charged by a solicitor acting for a different party engaged in the foreclosure proceedings.

The British Columbia Court of Appeal refused the applications to admit new evidence, other than the new evidence filed in respect of the s. 26 submission which addressed English's complaints concerning the conduct of the appeal and his request to have the members of the division recuse themselves. A reasonable apprehension of bias did not exist in respect of any member of the division on the appeal. Further, there had been no violation of the rules of natural justice, or other impairment of the appeal process. Accordingly, there was no reason to decline to render judgment on the merits of the appeal. The court addressed the issues raised and dismissed the appeal.

Barristers and Solicitors - Topic 3006

Compensation - General - Entitlement - Requirement of delivery of signed and otherwise proper account - See paragraphs 42 to 45.

Barristers and Solicitors - Topic 3168

Compensation - Agreements - The retainer - Scope of - See paragraphs 51 to 61.

Barristers and Solicitors - Topic 3177

Compensation - Agreements - The retainer - Termination of - See paragraphs 51 to 61.

Barristers and Solicitors - Topic 3302

Compensation - Measure of compensation - Conduct disentitling lawyer to fees in whole or in part - See paragraphs 51 to 77.

Barristers and Solicitors - Topic 3304

Compensation - Measure of compensation - Quantum meruit - Reasonable charges - See paragraphs 62 to 77.

Barristers and Solicitors - Topic 6270

Unauthorized practice - Acting as a solicitor - Agents and paralegals - See paragraphs 31 to 34.

Contracts - Topic 3641

Performance or breach - Incomplete performance - Abandonment - Effect of - See paragraphs 51 to 61.

Courts - Topic 680

Judges - Disqualification - Conflict of interest - See paragraphs 24 to 30.

Courts - Topic 687

Judges - Disqualification - Bias - By appeal court judge - See paragraphs 24 to 30.

Equity - Topic 1482

Equitable principles respecting relief - Clean hands doctrine - Application of - See paragraphs 62 to 77.

Practice - Topic 35

Actions - Conduct of - General - Representation by non-lawyer - See paragraphs 31 to 34.

Practice - Topic 9031

Appeals - Evidence on appeals - Admission of "new evidence" or "fresh evidence" - See paragraphs 20 to 23 and 36 to 41.

Counsel:

J. English, appellant, appearing in person, and for the corporate appellants;

G. Harney, respondent, appearing in person, and for the law firm.

This appeal was heard at Vancouver, British Columbia on May 28, 2015, and dealt with by way of written submissions received on June 12, 15, 18 and 22, 2015, and February 17, March 3 and May 2, 2016, by Saunders, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal. The court delivered the following reasons for judgment for the court on June 17, 2016.