McInnes Cooper v. Slaunwhite,

• Jurisdiction: Nova Scotia
• Judge: Giles
• Neutral Citation: 2004 NSSM 3
• Citation: 2004 NSSM 3,(2004), 241 N.S.R.(2d) 12 (SmCl),241 NSR(2d) 12,(2004), 241 NSR(2d) 12 (SmCl),241 N.S.R.(2d) 12
• Date: 05 March 2004
• Court: Small Claims Court of Nova Scotia (Canada)

McInnes Cooper v. Slaunwhite (2004), 241 N.S.R.(2d) 12 (SmCl);

    767 A.P.R. 12

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. MR.011

McInnes Cooper, Barristers and Solicitors (applicant) v. Daryl Slaunwhite (respondent)

(S.C.C.H. No. 209252; 2004 NSSM 3)

Indexed As: McInnes Cooper v. Slaunwhite

Nova Scotia Small Claims Court

Giles, Chief Adjudicator

March 5, 2004.

Summary:

Slaunwhite (client) suffered catastrophic injuries in a 1996 motor vehicle accident. The client retained McInnes Cooper (law firm) in late 1997 or early 1998. The law firm had sufficient resources to fund the client's litigation. Remuneration was based on a contingency fee agreement. If the client terminated the law firm's services before settlement or trial, the law firm was to be paid for hours spent on the file at its normal hourly rate. The client terminated the law firm's services in June 2003 (loss of confidence). The law firm billed the client $350,714.40 plus HST. The new lawyer, with the assistance of the law firm and the work it had already done, settled the matter for $2,000,000 plus costs within two months. The law firm sought taxation of its account. The client opposed the amount billed, primarily on the basis of excessive billed hours.

The Nova Scotia Small Claims Court taxed the account and allowed the sum of $318,187.15 plus HST.

Barristers and Solicitors - Topic 3002

Compensation - General - Duty to client to minimize fees - [See Barristers and Solicitors - Topic 3253 ].

Barristers and Solicitors - Topic 3253

Compensation - Taxation or assessment of accounts - Where lawyer withdraws or is discharged - A law firm represented a difficult client in a complex motor vehicle negligence action from late 1997 or early 1998 until the firm was discharged by the client in June 2003 - The law firm cooperated with new counsel, who used the work done by the law firm to settle the action within two months for $2,000,000 - The law firm had funded the action under a contingent fee agreement (40%) - Pursuant to an agreement between the law firm and client, the client was billed for hours expended at the respective lawyers' normal hourly rate ($350,714.40) - The client opposed the amount, submitting, inter alia, that the firm was too "liberal" with its application of resources because of the contingent fees and that the firm had too many people docketing too many hours - The client also claimed that the firm failed to protect his interests by not minimizing the amount of communications between he and the firm (i.e., failed to control him from using too much of the firm's expensive time) - The Nova Scotia Small Claims Court reduced the account to $318,187.15 - The account was affirmed as reasonable except for a reduction in hours billed in three areas where they were excessive - The client did not challenge the value of the work, only the hours spent as excessive - The court held that the reduced amount was reasonable given the complexity of the case, the demands of the client and the amount being claimed and settled for.

Barristers and Solicitors - Topic 3258

Compensation - Taxation or assessment of accounts - Evidence - The Nova Scotia Small Claims Court, in taxing a law firm's account, stated that "time dockets alone cannot be used to justify a solicitor/client account in totality. Instead, some ancillary evidence is required." - The court also stated that "it is incumbent upon the law firm to carefully record its time. If it chooses not to do so or if it fails to do so accurately, the risk is to the law firm and not to the client." - See paragraphs 95, 127.

Barristers and Solicitors - Topic 3322

Compensation - Disbursements - Legal research - The Nova Scotia Small Claims Court, in taxing a law firm's account, held that legal research computer charges of $126 and a library clerk charge of $45 were not allowable as they were more appropriately attributed to the law firm's overhead - See paragraph 244.

Cases Noticed:

Noftell et al. v. Fan Estate et al. (1995), 140 N.S.R.(2d) 61; 399 A.P.R. 61 (S.C.), refd to. [para. 62].

Roebuck, Garbig v. Albert (1992), 33 A.C.W.S.(2d) 1021 (Ont. Assessment Officer), refd to. [para. 90].

Cohen v. Kealey & Blaney (1985), 10 O.A.C. 344; 26 C.P.C.(2d) 211 (C.A.), refd to. [para. 90].

Tannous v. Halifax (City) (1995), 145 N.S.R.(2d) 23; 418 A.P.R. 23 (S.C.), refd to. [para. 95].

Canada Trustco Mortgage Co. v. Homburg (1999), 180 N.S.R.(2d) 258; 557 A.P.R. 258 (S.C.), refd to. [para. 100].

Lindsay v. Stewart, MacKeen & Covert (1988), 82 N.S.R.(2d) 203; 207 A.P.R. 203 (C.A.), refd to. [para. 124].

Toronto-Dominion Bank v. Park Foods Ltd. (1986), 77 N.S.R.(2d) 202; 191 A.P.R. 202 (S.C.), refd to. [para. 125].

Robertson v. Ostrander (1992), 103 Sask.R. 320 (Q.B.), dist. [para. 204].

Freed v. Domazet, [1993] O.J. No. 1869 (Assessment. Officer), refd to. [para. 204].

Solicitor, Re, [1973] 1 O.R. 107 (C.A.), refd to. [para. 227].

Keel Cottrelle v. Stoneburgh (1997), 46 O.T.C. 298; 75 A.C.W.S.(3d) 555 (Gen. Div.), refd to. [para. 227].

Raphael Partners v. Lam (2002), 164 O.A.C. 129; 61 O.R.(3d) 417 (C.A.), refd to. [para. 234].

Bank of Montreal v. Scotia Capital Inc./Scotia Capitaux Inc. et al. (2002), 211 N.S.R.(2d) 107; 662 A.P.R. 107 (S.C.), refd to. [para. 244].

Elliott v. Nicholson (1999), 179 N.S.R.(2d) 264; 553 A.P.R. 264 (S.C.), refd to. [para. 244].

Statutes Noticed:

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 9A(1) [para. 2]; sect. 29(1) [para. 4].

Authors and Works Noticed:

Nova Scotia Barristers' Society, Legal Ethics and Professional Conduct: A Handbook for Nova Scotia Lawyers (1991), p. 9 [para. 209].

Richardson, W. Augustus, The Taxation of Solicitor and Client Costs (2003), para. 187 [para. 89].

Counsel:

Clarence A. Beckett, Q.C., for the applicant, law firm;

Roger G. Oatley and Brennan V. Kahler, for the respondent, client.

This taxation was held on January 5-6, 2004, at Halifax, N.S., before Giles, Chief Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision on March 5, 2004.