Samuels v. Steensland

2000 BCSC 1250 Citation: Samuels v. Steensland Date: 20000821 2000 BCSC 1250 Docket: J980363 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: GREGORY L. SAMUELS SOLICITOR AND: ELLEN STEENSLAND CLIENT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE COLLVER Counsel for the Solicitor Ron A. Skolrood Counsel for the Client Andrew J. Winstanley Date and Place of Hearing/Trial: May 30, 2000 Vancouver, BC [1] By a Notice of Motion filed pursuant to the Legal Profession Act, S.B.C. 1998, c.9, Ellen Steensland seeks determination of the nature of a retainer agreement signed at Bellingham, Washington, on July 15, 1994, concerning her claim for damages for injuries suffered when she fell down a flight of stairs at Grouse Mountain, on March 19, 1994. [2] In late February 1998, Gregory L. Samuels, a member of the Law Society of British Columbia, negotiated a settlement of the claim for $175,000, plus costs and disbursements. Any satisfaction Ms. Steensland may otherwise have felt about the result was obviously dampened by two events: Mr. Samuel's attempt (in August 1997) to substitute a replacement for the original retainer agreement; and, Mr. Samuel's rendering of erroneous accounts after the settlement funds were received. [3] The issue is a narrow one. The agreement of July 15, 1994 entitles Mr. Samuels to charge a percentage of any settlement or judgment for "general and special damages, including loss of income". However, the word "special" has been crossed off. On August 18, 1997, Mr. Samuels wrote to Ms. Steensland and indicated his intention to charge the agreed percentage on "general damages, wage loss, and future special damages". He enclosed a new agreement, but Ms. Steensland did not sign it. [4] The settlement was achieved only days before the matter was to be tried, entitling Mr. Samuels to charge thirty-three and one-third per cent of the amount obtained. Although the settlement was a favourable one in light of the anticipated defences, Ms. Steensland's concerns about Mr. Samuels' account prompted her to consult an attorney in Puyallup, Washington. Further information concerning disbursements was requested. [5] I need not review the ensuing exchanges, since the issue raised in the present application concerns only the nature of the retainer agreement, which a Registrar declined to comment upon when Mr. Samuels sought a review of his account pursuant to the Legal Profession Act, supra. [6] Two preliminary objections were raised concerning the timing of the application. [7] Counsel for Mr. Samuels submits that if the learned Registrar erred in declining to examine the retainer agreement his decision was subject to review, but Ms. Steensland failed to appeal within 14 days as she was required to do pursuant to Rule 53(7). In the alternative, if she simply seeks a review of Mr. Samuel's account, she failed to apply within 12 months of delivery of the account as required by s.70(1) of the Legal Profession Act, supra. [8] Ms. Steensland did not have counsel when the matter came before the Registrar on November 28, 1998, and in adjourning the matter generally, the Registrar clearly anticipated that counsel for Mr. Samuels would "make an arrangement to have a time for a judge to hear it", and would notify Ms. Steensland. He did not, and Ms. Steensland engaged present counsel a month later. In those circumstances, this is a case calling for exercise of the court's inherent jurisdiction. [9] I do not intend to review either the parties' deposed recollections of what was said about deleting reference to special damages when the retainer agreement was signed, or their correspondence concerning special damages and wage loss. What is clear from the affidavits and correspondence is that in discussing the issue of income loss, no distinction was made between past or future income loss. While past wage loss may be categorized as special damages (eg. for the purpose of calculating prejudgment interest: Baart v. Kumar (1985), 66 B.C.L.R. 1 (B.C.C.A.)), that is not what the parties intended here. By deleting reference to special damages, they agreed that out-of-pocket medical expenses would be exempt from the percentage calculations. [10] In completing what was referred to as "a compromise settlement", Mr. Samuels and counsel for Grouse Mountain Resorts agreed that $175,000 was a global figure which was "inclusive of all claims for general damages, special damages, and medical expenses". Income loss is simply not mentioned in the final release, but that aside, when Ms. Steensland signed the retainer agreement on July 15, 1994, I am satisfied that both she and Mr. Samuels expected that income loss, without any distinction between past or future, would be included in the amount that was subject to the percentage fee. [11] Special damages, which are exempt from the calculation, are those which had been incurred up to the time of the settlement. [12] Mr. Samuels will deliver a bill in accordance with the above interpretation of the retainer agreement. [13] Ms. Steensland is entitled to Scale 3 costs. "R. Collver, J." The Honourable Mr. Justice R. Collver