McInnis v. John Doe,

• Jurisdiction: Nova Scotia
• Judge: Richardson
• Neutral Citation: 2014 NSSM 13
• Subject Matter: BARRISTERS AND SOLICITORS,EVIDENCE
• Citation: (2014), 346 N.S.R.(2d) 305 (SmCl),2014 NSSM 13,346 NSR(2d) 305,(2014), 346 NSR(2d) 305 (SmCl),346 N.S.R.(2d) 305
• Date: 18 March 2014
• Court: Small Claims Court of Nova Scotia (Canada)

McInnis v. John Doe (2014), 346 N.S.R.(2d) 305 (SmCl);

    1095 A.P.R. 305

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JL.022

Weldon McInnis (applicant) v. John Doe (respondent)

(SCCH 424142; 2014 NSSM 13)

Indexed As: McInnis v. John Doe

Nova Scotia Small Claims Court

Richardson, Adjudicator

June 17, 2014.

Summary:

At issue was the taxation of legal accounts rendered by McGinty for services provided to a client who lived in an enhanced care facility. The fee accounts totalled $4,741.29. There was also a disbursement of $4,375.50 for the preparation of an expert's report regarding the client's mental competence.

An Adjudicator of the Nova Scotia Small Claims Court reduced the fees allowed to $2,990 and disallowed the disbursement for the expert's report in its entirety.

Barristers and Solicitors - Topic 3308

Compensation - Measure of compensation - Reasonable charges, reasonably performed - At issue was the taxation of legal accounts rendered by McGinty for services provided to a client who lived in an enhanced care facility - The fee accounts totalled $4,741.29 - An Adjudicator of the Nova Scotia Small Claims Court reduced the fees allowed to $2,990 - McGinty was retained to obtain a new power of attorney for the client, investigate his "release" from the facility and look into the management of his financial affairs by his daughter - Fees in excess of $4,500 were unreasonable - The total of the time spent by McGinty was 33 hours - The court allowed a total of 12 hours at McGinty's hourly rate of $200 - This included nine hours for the review of documents and discussions with the facility staff, the bank and the client's daughter - Three hours were allowed for reviewing those matters with the client and one hour for preparing a new power of attorney - See paragraphs 37 to 43.

Barristers and Solicitors - Topic 3321

Compensation - Disbursements - General - An Adjudicator of the Nova Scotia Small Claims Court, in disallowing a disbursement for the preparation of an expert's report, stated, "A solicitor's decision to advise a client that a costly expert's report is necessary is one that must be made carefully. It must be founded on a sound analysis of the facts and the actual issues the client faces. It must not be made prematurely. After all, much can sometimes be obtained without an expert's report, by way of investigation and negotiation with the 'other' side. Moreover, experts require factual foundations upon which to base their opinions. It is often better to wait for that foundation to be built before a solicitor decides that an expert's report is required. A report that is obtained before it is needed may be an unnecessary - and hence unreasonable - disbursement" - See paragraph 44.

Barristers and Solicitors - Topic 3321

Compensation - Disbursements - General - At issue was the taxation of legal accounts rendered by McGinty for services provided to a client who lived in an enhanced care facility - The accounts included a disbursement of $4,375.50 for the preparation of an expert's report regarding the client's mental competence - An Adjudicator of the Nova Scotia Small Claims Court disallowed the disbursement in its entirety - It was not reasonable for McGinty to advise the client, shortly after meeting him, that the expert's report was needed - Moreover, the need for an opinion as to the client's competence at the early stage of the retainer was unclear - McGinty was retained to prepare a new power of attorney, to look into why the client was at the facility and to review the management of his affairs by his daughter - The decision to retain the expert could not be justified by the client's apparent consent to obtaining the report - The court outlined what would have been a more reasonable course of action - See paragraphs 44 to 49.

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - [See second Barristers and Solicitors - Topic 3321 ].

Cases Noticed:

Towle v. Samad (2013), 334 N.S.R.(2d) 373; 1059 A.P.R. 373 (S.C.), refd to. [para. 7].

Nova Scotia (Minister of Health) v. J.J. (2003), 217 N.S.R.(2d) 264; 683 A.P.R. 264; 2003 NSSF 42, refd to. [para. 39].

Hemphill Estate v. Hemphill, [1998] N.S.R.(2d) Uned. 79; 1998 CarswellNS 227 (C.A.), refd to. [para. 39].

Burchell MacDougall v. Mansfield, [2008] N.S.R.(2d) Uned. 147; 2008 NSSM 67, refd to. [para. 39].

Coleman Fraser Whittome & Parcells v. Canada (Attorney General), [2003] N.S.R.(2d) Uned. 149; 2003 NSSM 3, refd to. [para. 44].

Grey v. Dore, [2012] N.S.R.(2d) Uned. 132; 2012 NSSM 12, refd to. [para. 44].

Counsel:

Aileen K. McGinty, for the applicant;

Jonathan Hooper, for the respondent.

This matter was heard on March 18, 2014, by Richardson, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision on June 17, 2014.