COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
McConnan Bion O’Connor & Peterson Law Corp. v. Mega Wraps B.C.,
2007 BCCA 168
Date: （略）
Docket: CA034233
Between:
McConnan Bion O’Connor & Peterson Law Corporation
Respondent
(Solicitors)
And
Mega Wraps B.C. Restaurants Inc. and Mega Wraps B.C. Inc.
Appellants
Clients)
Before:
The Honourable Madam Justice Ryan
The Honourable Madam Justice Huddart
The Honourable Mr. Justice Lowry
Oral Reasons for Judgment
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Appellant M. Pouladi appearing In Person
M.R. Mark
Counsel for the Respondent
Place and Date:
Vancouver, British Columbia
8 March 2007
[1] LOWRY, J.A.: The appellants were clients of the respondent firm of solicitors. They engaged the solicitors to represent them, first, in respect of one matter and then in respect of two other unrelated matters. Difficulties arose over the payment of the firm’s accounts for services which led to the services being terminated. The clients ultimately disputed the amounts of the accounts maintaining that the account charged greatly exceeded the estimate the solicitors gave for the services to be performed with respect to the first matter. The solicitors then taxed their accounts and after a five day hearing the Registrar approved the accounts and a certificate was issued
[2] The clients appealed. Their appeal was heard by Mr. Justice Leask and dismissed. They now appeal from that dismissal.
[3] The solicitors’ initial engagement was to defend an action brought against the clients which, at the time the solicitors were first consulted, was set for summary trial. On 22 July 2004 the solicitors wrote the clients. They estimated their fees for the summary trial would be between $10,000 to $15,000 on the assumption that the matter could be heard as scheduled in early September. However, they cautioned that it might be necessary to conduct discoveries and noted the clients might wish to institute a counter claim. They requested a retainer of $7,500.
[4] There was conflict in the evidence adduced before the Registrar concerning the terms of the engagement which were thereafter agreed. She preferred the testimony adduced for the solicitors over that adduced for the clients. She found the terms upon which the solicitors were engaged to be as follows:
[89] Relying on the evidence of Mr. Mark and as reflected in the July 22, 2004 letter, I find that the agreement between the parties amounted to simply this: the Law Firm would bill for its services intermittently and on an hourly rate basis, and the Clients were to provide sufficient monies to keep the Law Firm’s accounts current. The scope of the services was unknown at the time of the initial retainer, but for the Clients’ instructions that the Jubran action should be vigorously defended and a counterclaim pursued. There is no suggestion that the Clients were precluded from having the interim bills reviewed under the Act.
[5] The summary trial of the action was not heard as had been scheduled. Adjournments were sought and obtained. Discoveries on both sides were conducted.
[6] The difficulties over the payment of the solicitors’ accounts arose in November. Accounts totalling more than $20,000 for the defence of the action and $10,000 for the unrelated matters based on hourly rates were outstanding. The solicitors had received several broken promises from the clients which culminated in a cheque for $15,000 tendered by the clients in part payment of the accounts being returned marked NSF. Later in November the solicitors received $25,000 from the clients in part payment of the outstanding accounts.
[7] In December the solicitors issued a further account for services, which a month later had not been paid. The solicitors met with the clients at the end of January 2005. The clients signed a notice of intention to act in person and authorized the solicitors to file unless all outstanding accounts were paid in full and a $5,000 further retained provided by 7 February 2005. The solicitors wrote with care of the clients confirming as follows:
This letter will confirm our meeting earlier today and our agreement that all outstanding accounts herein shall be full paid and a further retainer of $5,000 shall be paid to us no later than Monday, February 7, 2005. In this respect, we enclose our statement of account dated January 25, 2005 along with a copy of our account dated December 10, 2004. We require payment of all of these amounts before we can undertake our preparation for the trial, so any delay in providing the required retained will undermine that effort.
We further confirm that you have provided us with a signed and undated Notice of Intention to Act in Person, a copy of which is enclosed. This document was provided to us with the authority to date and file same in the court registry in the event that all of the funds are not paid as required. As you know, if this document is filed and served, we will no longer be solicitors of record and you will be required to undertake the defence of this action on your own behalf.
We trust the foregoing and the enclosed is in order.
The clients raised no objection.
[8] In the absence of any further payment the notice was filed. The hearing of the summary trial proceeded in mid-February. The plaintiff’s action succeeded and judgment was entered against the clients.
[9] The clients maintain that the Registrar and the judge erred. They say, now, the arrangement with the solicitors constituted an entire agreement for the defence of the action and that it was not open to the solicitors to terminate the agreement when they did. They say the solicitors repudiated the agreement and are entitled to none of the fees charged on the first of the matters on which they were engaged.
[10] I am unable to see any error. The estimate of fees related to the hearing of a summary trial provided that it was not necessary to conduct discovery. The Registrar determined the actual terms of the solicitors’ engagement based on the resolution of conflicting testimony and there is no sound basis on which it can now be said that she was not right to prefer the testimony adduced by the solicitors over that adduced by the clients. The parties ultimately agreed that the solicitors’ engagement would be terminated if the outstanding accounts were not paid and a $5,000 retainer provided. The clients did not take the position then that they seek to take now. They actually authorized the solicitors to file notice of their intention to represent themselves.
[11] I am unable to see any basis upon which it can be said that the arrangement under which the solicitors were engaged was the agreement for which the clients now contend. I agree with the judge that the Registrar’s determination of what the agreement constitutes a complete answer, the contention that the solicitors were not entitled to withdraw when, and on the basis that, they saw fit to do so.
[12] It follows that I would dismiss the appeal.
[13] RYAN, J.A.: I agree.
[14] HUDDART, J.A.: I agree.
[15] RYAN, J.A.: The appeal from Mr. Justice Leask is dismissed.
“The Honourable Mr. Justice Lowry”
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