Barker v. Daum

2015 BCSC 1316 Barker v. Daum

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Barker v. Daum, 2015 BCSC 1316 Date: 20150729 Docket: S148992 Registry: Vancouver Between: Daniel J. Barker and the Daniel J. Barker Law Corporation carrying on business as Barker & Company Solicitor And Tyrone Harold Daum and 0873394 BC Ltd. Clients Before: District Registrar Nielsen Reasons for Decision Counsel for the Solicitor: M. Foster D. Barker Counsel for the Clients: J. Shewfelt Place and Date of Hearing: Vancouver, B.C. March 10, 11, 27, 2015 June 2, 2015 Place and Date of Decision: Vancouver, B.C. July 29, 2015 introduction [1] This is an assessment of the accounts for fees, all dated October 14, 2014, of Daniel Barker ("the Lawyer") with respect to his bills relating to the conduct of a trial, in the amount of $77,560; attendance at Chambers to have monies held in the Court released to Mr. Tyrone Daum and 0873394 B.C. Ltd. ("the Client"), in the amount of $19,600; and for advice regarding a possible appeal from the trial judgment in the amount of $3,920. Also at issue are two disbursement accounts; the first dated February 2, 2014, in the amount of $4,662, and the second dated March 15, 2014, in the amount of $2,073.75. The total amount claimed for fees, disbursements, and taxes is $107,815.75. [2] The Lawyer, the Client, and Mr. Decotiis, gave oral evidence on the assessment. The Lawyer also provided evidence by

affidavit. issues [3] There are four central issues on this assessment. The first issue is whether the Lawyer and the Client entered into a fixed fee contract for $25,000. If not, the second issue is whether the amount of work done justifies the fees charged in view of the circumstances and factors provided in s. 71(4) of the Legal Profession Act, S.B.C. 1998, c. 9. ("LPA"). The third issue concerns the amount of money already paid by the Client to the Lawyer on account of the Lawyer's fees and disbursements. The final issue concerns the two disbursement accounts, and whether they are properly payable. background [4] The Lawyer was contacted by the Client in late 2012, in relation to an ongoing dispute involving a Mr. Michael Clapci and the control of the Beaverdell Hotel ("the Clapci matter"). The Lawyer had acted for the Client and his brother previously in a dispute between them and the City of New Westminster relating to attempts by the City to shut down a tow truck business being operated by them. [5] The intricacies of the dispute in the Clapci matter are summarized in Daum v. Clapci, 2014 BCSC 1524 at paras. 1-13, where the Court states: [1] THE COURT: Beaverdell is a small community almost due east of Penticton, over the mountain from Penticton. It is reached by Highway 33, travelling south from Kelowna. The disputes in this case center on the Beaverdell Hotel, which

burned to the ground March 28, 2011. The Hotel was an inviting old wooden building, a part of the local history. The cause of the fire has never been established. [2] Mr. Daum secured ownership of the Hotel through difficult and complicated earlier proceedings in this Court, concluding with the judgment of Barrow J. in Daum v. Meek Hotels Ltd., 2009 BCSC 373. Incidentally, the present proceedings were initiated by both a petition and a notice of civil claim. Counsel are agreed that nothing now turns on there being two proceedings and, for convenience, I am addressing the case within the civil claim alone with respect to liability, remedy, and costs. [3] Mr. Daum could not afford to discharge a mortgage which was on the Hotel property. A mutual friend introduced him to Mr. Clapci, who owns and operates a small backhoe business in the Lower Mainland. Mr. Clapci became interested in participating in some way in the business of the Hotel and he contributed the money needed to discharge the mortgage, $145,532. [4] Mr. Clapci and Mr. Daum entered into a trust agreement in connection with the Hotel business on April 7, 2010. Attached as Schedule A to these reasons is a copy of the trust agreement. Under the trust agreement, Mr. Clapci was appointed as the trustee and Mr. Daum was named as the owner. Mr. Clapci was made the bare trustee for Mr. Daum of 82% of the shares in a numbered

company, the corporate defendant 0873394 BC Ltd. in this proceeding. Mr. Clapci became the sole director of the company. He also received the other 18% of the shares and held legal title to 100% of the shares. [5] The numbered company owned the Hotel and the land on which it stood, as well as a liquor licence to operate the Hotel pub. Mr. Clapci held the legal title to Mr. Daum's 82% of the shares for the sole benefit and account of Mr. Daum. The trust agreement also provided that Mr. Clapci's contribution of $145,532 was in order to discharge the existing mortgage, and Mr. Clapci was to be repaid that sum out of Hotel profits. He was also given the option of mortgaging the Hotel property with a bank or similar institution in an amount not greater than whatever was the remaining balance on the $145,532 at the time such security was granted. [6] Mr. Daum entered the trust agreement because he wanted Mr. Clapci to be the face of the Hotel business in dealing with the liquor licensing authorities. He was concerned that some dealings in his own past might preclude him from holding a liquor licence in his own name or being seen as the face of the company holding the liquor licence. [7] In the course of final argument, Mr. Clapci's counsel asserted that the trust agreement was a sham. However, that assertion was not pleaded and was not raised in any manner in the course of the

evidence at trial. Indeed, Mr. Clapci's pleadings treated the trust agreement as being enforceable. I would add that the allegation of the trust agreement being a sham was never suggested in the 30 or more interlocutory appearances in these proceedings. It was too late to first raise that position in final argument. In any event, in my view, the trust agreement was not a sham, and Mr. Daum's wanting to stay in the background did not make it one. [8] The trust agreement addressed Mr. Clapci's duties as trustee of the shares. It was in exchange for serving as trustee, and advancing $145,532, that he received 18% of the shares. [9] Mr. Daum brought the Hotel property, including the Hotel building, to the undertaking and Mr. Clapci brought the necessary money, that is, the $145,532 needed to discharge the mortgage. [10] Apart from the trust agreement, Mr. Daum and Mr. Clapci agreed orally that Mr. Daum would run the Hotel, while Mr. Clapci would continue to live and work in the Lower Mainland running his backhoe business. Mr. Clapci, however, participated at the Hotel to some extent, by helping to reopen the operation in May 2010, by performing some banking tasks, and by paying creditors from time to time. He also came to the Hotel perhaps six or even 10 times, including when the Hotel ran rock concerts on site on three weekends in the summer of 2010. [11] That said, the

relationship between Mr. Daum and Mr. Clapci, from at least May 5, 2010, when the Hotel reopened, to November 12, 2010, when it shut down, was catastrophic. The two distrusted one another. Each accused the other of stealing money from the business and destroying records, or keeping records which were misleading, either intentionally or carelessly so. [12] Generally speaking, and that is all the scant documentary record and contradictory testimony allows for, I can conclude only that Mr. Daum lived in Beaverdell and ran the Hotel unprofitably, and Mr. Clapci visited and helped out from time to time, asserting unfounded rights of exclusive ownership and almost always quarrelling with Mr. Daum. Witnesses called by Mr. Clapci implied that Mr. Daum pocketed money from the Hotel operation, but those accusations were vague and not put to Mr. Daum when he was cross-examined earlier in the trial. [13] On November 12, 2010, Mr. Clapci arrived at the Hotel with two other men and evicted Mr. Daum forcibly. Then Mr. Clapci shut down the Hotel, sealing the windows and padlocking the doors. The Hotel remained empty, except perhaps for a brief encounter there between Mr. Daum and Mr. Clapci later in November, until the fire on March 28 of the following year. [6] The hotel burned to the ground in March 2011, and insurance proceeds were paid into court, where they remained for a lengthy period

of time. [7] The Client was also involved in a legal action with his brother over the estate of their late mother, for which the Client had been executor ("the Daum matter"). An ex parte order had been granted by Master Keighley in the Daum matter, freezing the funds paid into court in the Clapci matter. The attempt of the Lawyer to vacate this ex parte order is what comprises the Lawyer's claim for fees in the Daum matter. [8] When the Lawyer and Client first discussed the Lawyer's retainer in relation to the Clapci and Daum matters in the Fall of 2012, the Client was heading back to the Philippines, where he was residing. The Lawyer asked for a retainer of $5,000. The Client maintains he paid the Lawyer a $5,000 retainer in cash. The Lawyer denies receiving the retainer as alleged. [9] In the Fall of 2013, the Client returned to Vancouver to attend to matters involving his case against Mr. Clapci. The Lawyer allowed the Client to use one of the desks in his two offices to work on his case, as the Lawyer's associate was leaving the Lawyer's firm. In return, the Client was to assist the Lawyer in keeping the office open, answering the phone, making occasional deliveries, depositing funds to the Lawyer's general and trust accounts, swearing affidavits, and doing the odd list of documents or notices to admit. The Lawyer described the arrangement as follows: Now, the arrangement

that I had with Mr. Daum was that he could use the office, he could use the facilities, meaning the photocopier, the Internet, the fax, the paper, I would basically provide everything. He would pay for any of his disbursements and he would from time to time assist me with matters in relation to my other cases that he was capable of doing. And so, for example, Mr. Daum would from time to time make deliveries from me - for me, he would do copying, he would prepare a schedule to a list of documents, in terms of describing documents. I would occasionally use him, as a sole practitioner, as someone who could swear affidavits on information and belief. *** He is quite capable of preparing lists of documents. I don't believe he - he knew it before he met me, but he now knows how to prepare Notices to Admit, both in terms of attaching documents and the list of facts you wanted admitted, so in all those things he - he can do a - a reasonable job. Barker Direct, March 10, 2015 Transcript, p. 15 lines 36-47, p. 16 lines 1-4, p. 17 lines 42-47, p. 18 line 1 [10] During the course of this arrangement the Lawyer paid the Client $3,550 for the work he did in relation to the Lawyer's legal practice. The $3,550 was paid in eight cheques between January and July 2014. In addition, the Lawyer testified that he paid the Client small sums of cash from time to time, to assist with bus fare and food

bills as the Client was essentially impecunious. [11] Although not directly relevant, the Client alleges that the Lawyer agreed to pay him $45 an hour for the work he did at the Lawyer's office. The Client filed an Employment Standards Claim on October 17, 2014, seeking $87,123 in alleged unpaid wages only three days after the Lawyer presented his bill for fees in the Clapci and Daum matters. [12] The Lawyer and the Client did not enter into a written retainer agreement. There is not a single document, letter, or email, which evidences any sort of agreement between the Lawyer and the Client with respect to fees, how they would be calculated, or the terms of a retainer. [13] The Client had three legal actions ongoing: the Clapci matter, the Daum matter, and he was also suing the Public Guardian and Trustee for the wrongful death of his mother. The Lawyer's involvement was limited to the Clapci and Daum matters. [14] The Lawyer attests that he was not initially prepared to act for the Client under a contingency agreement or otherwise, as he anticipated the case would be time-consuming and contentious and the Client simply had no funds to retain him. The Lawyer was also concerned about being bound in any way to the Client, given what the Lawyer described as the Client's tactics and conduct used by him before the courts in the dispute with his brother in the Daum matter. The Lawyer

described the client's conduct as "vulgar, volatile, and loud". [15] I was directed to two affidavits of the Client filed in the Daum matter to demonstrate this concern. The affidavits of the Client contain inflammatory comments and allegations of misconduct against the other litigant and their lawyer. However, despite the Lawyer's reticence to enter into a binding contract with the Client, he did act on his behalf, on and off, performing certain legal services in relation to both the Clapci and Daum matters. [16] The Lawyer testified that he appeared before Mr. Justice G.P. Weatherill on February 26, 2014, on the Client's behalf on an application to set aside the ex parte order of Master Keighley. The ex parte order had been granted on July 10, 2013, ordering that the funds which had been paid into court with respect to the Beaverdell Hotel be held in court pending the resolution of the Daum matter. It was during this application that the limited nature of the Lawyer's retainer was discussed in open court. [17] The Court was advised by the Lawyer that he was not acting on either the Clapci or Daum matters. The Lawyer described his role as attending court for the benefit of the Client to facilitate matters for him. During the verbal exchange before the Court, opposing counsel jokingly referred to the Lawyer's role as "pinch-hitting from time to time". At the time this exchange

took place, the Client was present in the courtroom. [18] In oral reasons for judgment, Mr. Justice G.P. Weatherill decided that although the Master lacked jurisdiction to make the order in dispute, the funds in question were to remain in court nevertheless. [19] The Lawyer testified a key component in his decision to ultimately conduct the trial on behalf of the Client was the obligation he felt to the Court to ensure that the Clapci trial completed within the five days allotted. The Lawyer had been appearing on and off before the trial management judge, who was the judge who would ultimately hear the case. The Lawyer was concerned that his reputation would be tarnished if he had withdrawn without a compelling reason, on the eve of trial. [20] The Lawyer testified that when he did finally commit to taking the case through trial, there was no agreement with respect to a fee, or how it was to be calculated. The Lawyer testified that he was satisfied to work out the fee on a quantum meruit basis, once a result had been achieved. The Lawyer testified that the Client knew and understood this arrangement. The Lawyer testified that the fee arrangement had a very big caveat - "no pay if no victory". [21] The Lawyer quotes his hourly rate at $375 to $400 per hour, depending on the complexity of the case and the client's ability to pay. The Lawyer testified he does not keep regular time

records but rather keeps track of his time informally, noting the number of days he appears in court, or on examinations for discovery. The Lawyer uses the amount of emails and correspondence to calculate what he believes is a reasonably accurate sense of time which he has put into a case. The Lawyer generally spends a half-day preparing for every half-day to one day of discovery or court application; and one to one-and-a-half days preparing for each day of trial. [22] The Client's view of the retainer is completely opposite. The Client states that the Lawyer advised, shortly after his return from the Philippines in the Fall of 2013, that the Lawyer would do all the Client's legal work for $25,000. At the time of this alleged fixed-fee agreement, the trial had not been scheduled. [23] The Client describes his conversation with the Lawyer as follows: And I said, "Well, I'm going to book this for a five-day trial right away. That's the first thing I want to get done." And he says, "Well, five days is going to cost you twenty-five grand and that's - I'll do everything. I'll look after all your files for you and I'll - and if you get stuck, I'll be there to back you up and I'll go in and I'll represent you or if you need questions asked with regards to the files, you can ask me the questions and I'll help you, but you gotta pay me twenty-five grand." And I said, "Well, what about

the five I already He says, "Well, just take it off." So I owed him $20,000 and it had to be cash Daum Direct, March 11, 2015 Transcript, p. 7 lines 25-39 And further: Says, "No, no, you stay here. Just buy the paper. When the applications come due and you're doing your paperwork, 'cause I know you're perfectly capable of doing this, and you can sit there. You can work for me and you look after my files 'cause I need somebody in the office. I'll pay you 45 bucks an hour and you gotta pay me $20,000 still before the trial. If you have problems with your brother, problems with Bob Salmon, problems with Michael Clapci, I'll answer them. I'll go to the applications and if you absolutely think that I need to go or you're stuck, I'll look after it for you. I'll do the discoveries and I'll do five days in trial, but don't be booking it for more than five days". *** And he came down and we booked the - the trial for five days and I had to pay all the disbursements as I was going through there, for the filing fees; it was $80. He said, "Don't worry about the affidavits. I'll swear them as long as I'm here". Daum Direct, March 11, 2015 Transcript, p. 8 lines 9-23, 29-34 [24] The Client is unequivocal that the retainer was for a fixed fee of $25,000 and encompassed both the Clapci and Daum matters. The Client's evidence is that this did not change or evolve at any time during the

relationship. [25] Mr. Decotiis gave evidence which supports the Client's claim of a fixed-fee contract for $25,000. Mr. Decotiis testified as follows: Q Did Mr. Barker tell you the terms on which he agreed to represent Mr. Daum? A Yes, he did. Q What did he say? A It was $25,000 for a five-day trial at the time, $5,000 a day, all in. Decotiis, Direct, March 11, Transcript, p. 32, lines 8-13 [26] Mr. Decotiis gave evidence that the Lawyer had previously represented him in "numerous different matters, ten plus", in both criminal and civil cases. Mr. Decotiis gave evidence that the Lawyer had represented him, on one occasion, for a $5,000 fixed fee involving a criminal charge arising from the accusation that he had assaulted his father. Mr. Decotiis did not testify that the Lawyer had previously represented him for a fixed fee in a civil case, or in any of the other "ten plus" cases where the Lawyer had represented him. [27] Mr. Decotiis testified that the Lawyer never billed by the hour, or kept track of his hours. Rather, he stated the Lawyer would "just wing it" when it came to the calculation of his fees. [28] Mr. Decotiis testified that he and the Lawyer had previously been friends and roommates for approximately three years. There was a falling out between them at some point in time. Mr. Decotiis' dislike for the Lawyer was readily apparent. He made several inflammatory

comments about the Lawyer regarding his lifestyle and practice of law, and stated that the Lawyer had previously insulted him by referring to him as "a meatball". Mr. Decotiis had an obvious axe to grind with the Lawyer and referred to their prior friendship as "one-sided". In observing Mr. Decotiis, his dislike for the Lawyer was palpable. [29] The relationship between the Lawyer and the Client began to deteriorate following the resolution of the Clapci matter and subsequent discussions concerning the Lawyer's fee. In August and September 2014, it was apparent that the insurance proceeds would be forthcoming to satisfy the Court's order. Discussions concerning the Lawyer's fee ensued. The Lawyer testified that the Client initially agreed to pay him 40% of the recovery. The Lawyer states this agreement is evidenced by an affidavit sworn by the Client to this effect, which was to be filed in support of an application to have insurance monies paid out of court. [30] Paragraph 35 of the Client's affidavit reads: 35 My Company 0873394 B.C. Ltd. and I are currently indebted to my lawyer Mr. Daniel Barker or 40% of the recovery under this action, currently estimated to be $475,000 inclusive of the total to be paid out of court to the numbered company, the punitive damages and costs, plus applicable taxes and disbursements. Again subject to determining the final amount of the costs

payable to me by Mr. Clapci, the numbered company and I are indebted to Mr. Barker for $190,000 in fees, $22,800 in pst and gst on those fees; $20,532.74 for disbursements, $821.30 in gst on those disbursement, for a total of $234,154.04. That now produced and shown to me and marked as Exhibit "W" to this my Affidavit are copies of my draft bills of costs arising from the judgment in this matter. [31] The Lawyer testified that the Client drafted and swore the affidavit; however, in the Lawyer's absence from the office, the Client removed the last page containing the Client's sworn signature. The balance of the affidavit remains intact and the exhibits are sworn September 5, 2014. [32] The Lawyer testified that the initial unsworn version of the September 5, 2014 affidavit drafted by the client read as follows: 55. My company 0873394 B.C. Ltd. owes my lawyer Mr. Daniel Barker a large substantial amount of money for doing Discovery and a 6 day trial in Supreme Court of British Columbia Actions S113221 and S115203 both of the Vancouver Registry. [33] This affidavit was attached to an e-mail dated September 5, 2014, sent at 1:03:14pm. The Lawyer's evidence is that the client drafted both versions of the affidavit in support of the application to have the money in court paid out to him, and the final sworn version was that which provided for a 40% contingency. [34] The Client denies

drafting or swearing either affidavit, but he does agree he removed the last page of the affidavit referencing the 40% contingency agreement, as "it did not reflect their agreement". The Client did not communicate his disagreement, or explanation for removing the last page, in writing at any time. [35] On the day the Client eventually vacated the Lawyer's office following their falling out, the Lawyer left a hastily typed letter for the Client, which provides evidence concerning a lawyer's billing practices and fee rates. The letter written by the Lawyer to the Client states in part: You seem to have flipped out today because of my refusal to dwell on your brother's case and on my comment as to the cost of a contested costs hearing. As to the former, I am tired of hearing about your brother's case and will only deal with it as I see necessary. You have wasted a lot of time and energy on tactical matters, ignoring till lately my advice on the keys to the process. As for the latter, why are you so tight about my saying that the cost of such a hearing could be 15K? It is a massive project to put together the hearing materials, which I will have to vet, approve and rely upon, which I have already contributed to. I charge 5 to 10K per day for any court hearing, that is life, so 15K, as a rough comment is not outrageous. Further, when you say you can pay up front the cost is more

reasonable. On the case that you stupidly put your nose into today, this point was made. A client comes in and is told 10K to start, assuming a one-day hearing. Turns out there are two matters and at least 2 full days, so the quote goes to 20K. Client says ok. Client doesn't come up with the money, so client is obliged if he wants me to continue to amend to promise me (not pay as he doesn't have the money) 15K if the matter settles without the hearing or 35K if the hearing proceeds. That was negotiated and frankly is none of your business. You need to stop thinking so much about matters that don't concern you and focus on getting these matters over with. Why should I care that you think I should have stuck to the original figure of 10K? Finally, it is in our collective best interests to work together to resolve all of this. Let me know if you want to work things out as set out above, failing which you should pack your stuff up by the end of business on Friday and I will bill you for the time spent on all matters and seek to secure payment out of the monies in court. (Such a process would not be pleasant for either of us and would greatly please your brother and Clapci, so think about it). [36] The hastily typed letter of the Lawyer did not make any reference to a prior fixed-fee contract in the amount of $25,000, or any previously agreed to fee arrangement. [37] Shortly after

the Client vacated the Lawyer's offices over their fee dispute, the Client settled his lawsuit with his brother in the Daum matter and obtained his brother's consent to having the funds paid out of court. [38] Unbeknownst to the Lawyer, the Client obtained an order dated September 23, 2014, to have the money in court, totalling $319,686 (inclusive of interest) paid out of court to the Client's numbered company. [39] Unaware that the money had already been paid out, the Lawyer obtained a court order on October 17, 2014, which provided: 1. That Daniel J. Barker and the Daniel J. Barker Law Corporation carrying on business as Barker & Company shall have a charge against all monies, including costs, awarded to the respondents Tyrone Harold Daum and 0873394 BC Ltd. by the Order of Mr. Justice MacIntosh made July 18, 2014 in these matters, in the amount of $77,560.00; 2. That the defendant/respondent Michael John Clapci shall pay any costs owed to Tyrone Harold Daum under the Order of Mr. Justice MacIntosh made July 18, 2014 in these matters into Court with such funds standing subject to the charge of Daniel J. Barker and the Daniel J. Barker Law Corporation carrying on business as Barker & Company. [40] In granting the order sought by the Lawyer charging the funds and property of the Client, the Court stated in oral reasons for judgment dated October 17, 2014, as follows: [7] I must

say, I am influenced by what I thought was Mr. Barker's good work for Mr. Daum at the trial. Whether or not that is a relevant factor at this stage, I do not know this morning, but it does cause me to believe that the bill of $77,560 is not an unreasonable one. [41] The Court repeated this observation in a subsequent application by the Client on November 21, 2014, to vacate the Lawyer's charge against lands owned by the Client's corporation. In Daum v. Clapci, 2014 BCSC 2515 at para. 5 the Court stated: [5] Mr. Barker in the present application is left with only a charging order or lien over the shares in the corporate defendant. I realize that may be a small comfort and, for what it is worth, I repeat an observation I have made before to these parties, that from what I observed in the conduct of the trial, the fee claimed appears to be reasonable. [42] When the Lawyer became aware that the monies had been paid out of court to the Client, he wrote to the lawyer whom he believed had assisted the Client in obtaining the payment out, advising that lawyer of his charge on the monies and demanding information on when and to whom the monies had been paid. [43] The Lawyer received the following email response: Dan, We have your letter of Oct 22, 2014. In your letter you may have inferred that I assisted Mr. Daum in obtaining payment out of Court of the fund described in your letter.

In fact, I did not. You will understand that if Mr. Daum consulted me with a view to obtaining my advice or assistance, that event or any related communications would be privileged. Thus, I would be constrained from giving you a complete account of any dealings we may have had with him. However, I can advise you of the following facts: 1. We have never been retained by Mr. Daum or his company, or agreed to represent or assist him in relation to any matter.

2. We had no role in the preparation or filing of the Requisition attached to your letter.

3. Apparently, Mr. Daum advised the registry that any cheque for payment out of the amount described in the Requisition should be delivered to 0873394 B.C. Ltd. care of our office address. If so, he did that without our authorization or knowledge.

4. On October 2, 2014, a cheque from MOF for $319,686.60 arrived by mail at our office in the mail. That cheque was made payable to 0873394 B.C. Ltd., c/o our office address.

5. The cheque arrived at a time when I was out of the country, and my partner John Forstrom was out of the office. Our receptionist emailed me to advise that the cheque had arrived and seek direction what to do with it.

6. Meanwhile, Mr. Daum was apparently aware that the cheque would be arriving that day, and came to our office, unannounced, on the afternoon of October 2, 2014. He asked our receptionist if the cheque had arrived. The cheque was on her desk. When she picked it up, he took it from her hands. He refused her request to return the cheque, took it and left.

7. We have never received any money, in trust or otherwise, with respect to this matter.

8. We have never had any money in our "possession" except as described above.

9. We are unable to offer any advice about what became of the cheque or the funds it represents. We trust that this answers your questions, but let me know if you have further inquiries. Regards, the retainer [44] The fundamental prerequisite to every review pursuant to the LPA is proof that the client did in fact retain the lawyer. This issue was dealt with by Master Halbert in Coates v. Buchholz and Arbutus Bay Estates Ltd., 9 September 1991, B.C.S.C. Victoria Registry No. 903846 at para. 3: The law with respect to the determination of the retainer is well settled. The onus is always on the solicitor to prove his retainer: MacGill & Grant v. Chin Yow You, (1914) 19 B.C.R. 241; In Re Dickie, (1916) 23 B.C.R. 538; Griffiths v. Evans, (1953) 2 All E.R. 1364, per Lord Denning at p.

1369. Where there is a dispute as between the solicitor and his client on the terms of a retainer, the word of the client is to be accepted, or at least given more weight, unless there is some evidence to corroborate the word of the solicitor, or which tends to support the solicitor's evidence: Griffiths v. Evans (supra); Bourne Lyali Davenport & Herbert v. Varabioff et al, Penticton Registry number 396B74, unreported, 1974, per Ruttan J., citing with approval Macdonald v. Bellhouse, (1920) 1 W.W.R. 597. [45] Once the retainer is proven, the onus shifts to the Client to prove a special contract limiting fees, such as a fixed-fee contract: Conkie & Company v. Free Quincy Productions Ltd., 2012 BCSC 33 at para. 103. [46] The Client seeks to rely on the onus of proof principle expressed in Re Dickie, de Beck & McTaggart and Sherman (1916), 23 B.C.R. 538 (BCCA), at pages 541-542, wherein the court held: There runs through all the cases, that which seems right and proper in the administration of justice, that if a solicitor will make an agreement with a client, then he must be able to shew what that agreement is, and if it is not in writing, then it seems to be that the client's statement must be accepted. If he makes an agreement, then let him make it in writing as a prudent solicitor with a client, disclosing all the facts and circumstances. [47] The onus of proof principle in Re

Dickie, supra, was qualified in Meredith & Co. v. Poloway 40 B.C.L.R. (2d) 281 (BCCA) at page 287, wherein the court stated that it was "necessary to examine the circumstances of each case to ascertain the nature of the arrangement made with the solicitor". [48] In the present case, there is no dispute that the Lawyer was retained. The Client, however, asserts that the Lawyer agreed to a fixed-fee contract of $25,000 to do all the work, which is the subject of the present review. [49] The solicitor-client relationship in this case was unusual and not the typical arms-length relationship. It was influenced by the fact that the Lawyer and the Client became friends, confidants, and work colleagues, and the fact that the Client was virtually penniless without the proceeds of the litigation. [50] The Lawyer testified he provided the Client with small amounts of cash from time to time to assist him with living expenses, in addition to ad hoc payments made for work he did around the Lawyer's firm. [51] The Client needed assistance with his various legal actions and the Lawyer needed someone in his office to assist him, as his legal associate was leaving his employ. [52] The Client asserts that the Lawyer agreed to a $25,000 fixed fee right from the very beginning, in October 2013, to handle all the Client's legal cases. In support of this assertion, the Client relies upon the

corroborative evidence of Mr. Decotiis. [53] The Client also put substantial weight in a text message he sent to the Lawyer, suggesting cash was placed under the water cooler in the Lawyer's office. Again, in this regard, the Client relies on the corroborative evidence of Mr. Decotiis, who testified he saw the Client put $5,000 in cash under the water cooler, and text the Lawyer in this regard. The Lawyer denies receiving the text or the $5,000. [54] The Client had his cell phone examined by a digital forensics expert, who produced a report showing previously deleted texts to and from himself and the Lawyer. One of the previously deleted texts to the Lawyer from the Client was dated September 8, 2014, which read: "some cash under the water bottle in your office". There is no return text from the Lawyer, nor any acknowledgment or proof of receipt by the Lawyer. There is no mention of an amount of cash, or any subsequent text from the Client seeking confirmation or receipt. Given the position of the parties, whether a fixed-fee agreement exists in the present case comes down to an issue of credibility and reliability. [55] In Fotsch v. Begin, 2015 BCSC 227, Mr. Justice G.P. Weatherill summarized the issue of credibility as follows: [150] In R. v. Gagnon, 2006 SCC 17 at para. 20, the Supreme Court of Canada held that assessing credibility is not a science. Credibility of

interested witnesses is determined based on the classic criteria set out in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [151] More recently, in Bradshaw v. Stenner, 2010 BCSC 1398, Madam Justice Dillon summarized the factors to be considered when assessing credibility as follows at para. 186: [186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of

interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny,[1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356). [56] In Gichuru v. Smith, 2013 BCSC 895, aff'd 2014 BCCA 414 at para. 130, Madam Justice Adair considered the passage from Bradshaw and formulated an approach to credibility based upon Faryna: [130] Moreover, the assessment of a witness's credibility must reasonably subject the witness's story to an examination of its consistency with the probabilities of the surrounding conditions or circumstances. The real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those circumstances. See Faryna

v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at pp. 356-357. [57] The witness' testimony must be examined for consistency, together with the probabilities of the surrounding conditions and circumstances. Having applied this approach when assessing the evidence of each of the principal witnesses, I find a fixed-fee contract has not been proven. [58] The Client was an experienced litigant. He described his own experience as "having been to court a million times". However, despite the Client's experience, there is not a single document, email, or text, over the entire course of events which references, or confirms the existence of a fixed-fee contract, which the Client maintains was established in October 2013. [59] Fixed-fee contracts in matters of civil litigation are rare. The time needed to pursue a plaintiff's case from initial retainer to judgment is, at best, unpredictable. There is nothing in the present case which would have lent itself to the level of predictability needed to establish a fixed-fee retainer. [60] Fixed-fee contracts arise more frequently in criminal cases involving provincial summary conviction offences. This is consistent with Mr. Decotiis' evidence that the Lawyer previously represented him on a fixed-fee basis in relation to an assault charge made against him. [61] The Lawyer's billing practices are casual and based upon the calculation of rough hourly

rates, depending on the client's ability to pay; typical preparation time and court time needed to complete specific tasks; and, ultimately, a quantum meruit calculation of his fee. The Lawyer also has the practice of providing fee estimates, which is evidenced by his hastily typed letter to the Client immediately before the Client's departure from his office. [62] A fee estimate is not something written in sand which can be washed away by the shifting tides of litigation: Mura v. Archer Daniels Midland Company et al., 2003 BCSC 1164 at para.

8. Depending on the circumstances, a fee estimate can become binding. [63] Fee estimates may also become a significant factor in determining what fee is ultimately payable pursuant to s. 71(4)(f) and (5) of the LPA. However, a fee estimate does not necessarily equate with a fixed-fee contract. [64] In the present case, the Lawyer states unequivocally that he did not enter into a fixed-fee contract with the Client. This evidence is consistent with the representations he made in open court on February 26, 2014, four months prior to trial, in the presence of the Client. [65] Opposing counsel was aware of the fact that the lawyer was not formally retained at that time, and it was he who raised the subject and characterized the Lawyer's role as "pinch-hitting from time to time". [66] The Lawyer's explanation to the Court of his role in the litigation is entirely consistent with his explanation on this assessment. [67] The Client did not make any reference in his evidence to a concern or discussions which followed the Lawyer's representation in court on February 26, 2014. Nor was there any text, email, or document in this regard. There is no evidence that the Client raised so much as an eyebrow at the Lawyer's representation to the Court regarding the casual nature of the retainer. [68] The Court's reasons following the February 26, 2014 application expressed concerns with the

Client's evidence. The Court stated: [5] What is clear to me, having heard both sides of this case, is that both parties, Jeffrey Daum and Tyrone Daum, have not come to court with clear hands. Jeffrey Daum made the ex parte application before Master Keighley on July 10, 2013 without disclosing to Master Keighley the existence of a statutory declaration that he swore stating that the Beaverdell property as owned by Tyrone Daum. [7] On the other hand, the material that Mr. Burgess referred me to relating to Tyrone Daum's management of the estate of the parties' mother, Carole Daum, raises significant concern about his bona fides. [11] However, on the material that I have before me today, I am satisfied that it is in the best interests of the parties and in the best interests of seeing this matter resolved on the merits, that the funds currently in court in the Vancouver Action which were the subject of Master Keighley's order, continue to be held in court pending the resolution of this action or until further order of this court. [69] The last minute retainer of the Lawyer to conduct the trial is also referred to in the reasons for judgment in the Clapci matter. The concluding paragraph of the reasons for judgment states: [39] Finally, I want to add that I am grateful to Mr. Barker and Mr. Grenier for taking over a very difficult case not long before trial. (Underlining

added). [70] I have concerns with the Client's evidence. He denies he drafted or swore his affidavit of September 5, 2014, which references his indebtedness to the Lawyer for 40% of the recovery in the action, but admits he removed the signature page. The Client attests he removed that page as it was untrue, given the alleged fixed-fee contract of $25,000. However, the Client does not evidence this disagreement in writing, text, or email, despite the Lawyer's prior representations in open court on February 26, 2014, in his presence. [71] Also of concern is the Client's behaviour in securing the money in court. Without advising the Lawyer, and knowing that there was a claim for fees, the Client obtained an order for payment out of court of the monies held. The Client advised the Registry to send the cheque, payable to his company, 0873397 B.C. Ltd., care of another lawyer's office who he had consulted with, without that lawyer's knowledge or consent, when both the lawyer and his partner were out of the office. Aware that the cheque would be delivered to the unsuspecting lawyers' office, the Client attended his office, asked if the cheque had arrived, and when the secretary picked it up, the Client took the cheque from the secretary's hands, refused to return it, and then left the office. [72] The Client disagrees with the Lawyer's email in part. The Client states that the

secretary handed him the cheque; he did not take it as described in the Lawyer's email. [73] Although the other Lawyer's email was admitted into evidence by consent, neither the other Lawyer, nor his secretary, were called as witnesses. The other Lawyer's email response is almost entirely hearsay. However, with the exception of the manner in which the Client took the cheque, the Client did not otherwise contest the contents of the Lawyer's email. [74] The Client relies on the evidence of Mr. Decotiis to corroborate the allegation of the $25,000 fixed fee contract. I find Mr. Decotiis's evidence to be unreliable and not credible. His dislike for the Lawyer was palpable. He criticized the manner in which the Lawyer conducted his practise of law and the Lawyer's lifestyle. The comments were inflammatory, of a personal nature, and did not bear directly or indirectly on the issues at hand. While giving evidence he sometimes confused dates and times. Further, Mr. Decotiis referred to the alleged fixed fee contract in the amount of $25,000, but also referred to an agreement of $5,000 per day, when the trial took six days to complete and involved an examination for discovery and four chambers attendances. A $25,000 fixed fee contract does not equate with $5,000 per day in the circumstances. [75] The Lawyer testified that there were two substantial obstacles which prevented him from

agreeing to formally represent the Client, other than on an ad hoc basis, until the last minute. There was the concern that the matter would be complex and time-consuming, coupled with the Client's inability to pay, and secondly, the Client's behaviour. The Lawyer testified he needed the threat of withdrawing services as a method to control the Client's behaviour. [76] In my view, the Lawyer's concerns were justified and I find his evidence regarding his retainer to be credible. The Lawyer's evidence is consistent with the representations to the court throughout the litigation. That evidence is contained in the court's record of proceedings on February 26, 2014, just four months prior to trial and noted in the concluding sentence of the reasons for judgement in the Clapci matter. I find there was no fixed-fee contract for $25,000, as alleged by the Client. [77] Also of note, but not of significance, is the Lawyer's hastily drafted letter to the Client the day before he vacated the Lawyer's office. The Lawyer was rightfully embarrassed by the letter and regrets writing it. However, the letter makes no mention of any prior fixed-fee retainer in the amount of $25,000 or otherwise. The letter tries to resolve their fee dispute and acknowledges, indirectly, that no prior fee arrangement had been made. bills and disbursement accounts [78] The Lawyer submitted three accounts for fees,

all dated October 14, 2014. All three accounts remain unpaid. The first bill in the Clapci matter was for $69,250 plus applicable taxes, totalling $77,560. The Lawyer described the services provided as follows: Communications/Correspondence/Documents To various written communications with client, Tyrone Harold Daum, from January 2013 through September 15, 2014, including 135 e-mails; to various discussions with client from January 2013 through September 15, 2014 as to ongoing process of document disclosure, applications, affidavits, court appearances, strategies to be employed; preparation for trial and attendance at trial; to various written communications with the defendant Mr. Clapci and his counsel Mr. Grenier, including 85 e-mail; to various written communications with Trial Division, including 8 e-mail, including to review and revision of Notices of Application and Responses to Applications (10); to review and revision of Affidavits of client (12); to review of Affidavits of Mr. Clapci (6); to review and revision of Orders (8); to review and revision of Trial Briefs for TMC, Garnishing Order After Judgment; Amended Notice of Civil Claim and First Further Amended Notice of Civil Claim; Requisitions, Notice of Trial; Trial Certificate; to review of Notices to Admit; to preparation of Opening for trial; to preparation of Final Argument; to review of Argument at trial of the

defendants; to determine content of Briefs of Authorities for trial; to review and revision of Bills of Cost; to preparation of Garnishing Order After Judgment; to review and revision of application to obtain payment out of funds held in Court pursuant to the Order of Mr. Justice Macintosh; Appearances To preparation for and attendance in Chambers: July 19, 2013, February 18, 2014, May 26, 2014, To preparation for and attendance at Trial: June 23, 2014 to June 27, 2014, July 10, 2014. [79] The second bill in the Daum matter was for $17,500 plus applicable taxes, totalling $19,600. The Lawyer described the services provided as follows: TO ALL PROFESSIONAL SERVICES RENDERED in relation to the noted matter, including: To review of Order of Master Keighley obtained by plaintiff and to advice to client as to setting same aside; to receipt and review of documents filed by plaintiff to obtain Order; to advice to client as to materials required to set same aside and to review of authorities; to various correspondence to and from Mr. Burgess, counsel for plaintiff; to numerous meetings and discussions with client as to strategy to be employed to reverse Order and to allow payment out of funds held in Court in Actions S1152045 and S113221; preparation of materials for attendances inn Chambers in New Westminster; travel to and attendance in Chambers in New Westminster on three occasions;

to advice to client as to possible appeal of Order of Mr. Justice Weatherill; to review of appeal materials and to further advice to client. [80] The final bill relating to advise concerning the possibility of an appeal was for $3,500 plus applicable taxes, totalling $3,920. [81] In addition to the three bills, the Lawyer submitted two disbursement accounts. The first is dated February 2, 2014, which totals $4,662 inclusive of taxes. The second, dated March 15, 2014, totals $2,073.75 inclusive of taxes. Both disbursement accounts have been paid in full by the Client, but are challenged on this assessment. The two disbursement accounts are broken down as follows: February 2, 2014 Re: Clapci

DISBURSEMENT ACCOUNT Copies: $2,250.00 Fax: $245.00 Travel (Air Canada): $1,500.00 Parking: $75.00 Meals: $125.00 Taxi: $145.00 Internet use: $100.00 GST: $222.00 Total owing: $4,662.00 March 15, 2014 Re: Clapci/Daum/Estate

DISBURSEMENT ACCOUNT Copies: $1,750.00 Fax: $125.00 Internet use: $100.00 GST: $98.75 Total owing: $2,073.75

PRINCIPLES OF REVIEW [82] In the absence of a written retainer, there is an implied term that the Lawyer will be remunerated for the work done based upon a fair fee assessed on the basis of the factors set out in s. 71(4) of the LPA, as per Nathanson, Schachter & Thompson v. Sarcee Indian Band, [1994] 90 B.C.L.R. 2d 1 (C.A.) at p. 11. [83] The principles which the Registrar must consider on a review are set out in s. 71 of the LPA. Section 71 provides: 71 (1) This section applies to a review or examination under section 68 (7), 70, 77 (3), 78 (2) or 79 (3). (2) Subject to subsections (4) and (5), the registrar must allow fees, charges and disbursements for the following services: (a) those reasonably necessary and proper to conduct the proceeding or business to which they relate; (b) those authorized by the client or subsequently approved by the client, whether or not the services were reasonably necessary and proper to conduct the proceeding or business to which they relate. (3) Subject to subsections (4) and (5), the registrar may allow fees, charges and disbursements for the following services, even if unnecessary for the proper conduct of the proceeding or business to which they relate: (a) those reasonably intended by the lawyer to advance the interests of the client at the time the services were provided; (b) those requested by the client after being informed by the

lawyer that they were unnecessary and not likely to advance the interests of the client. (4) At a review of a lawyer's bill, the registrar must consider all of the circumstances, including (a) the complexity, difficulty or novelty of the issues involved, (b) the skill, specialized knowledge and responsibility required of the lawyer, (c) the lawyer's character and standing in the profession, (d) the amount involved, (e) the time reasonably spent, (f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable, (g) the importance of the matter to the client whose bill is being reviewed, and (h) the result obtained. (5) The discretion of the registrar under subsection (4) is not limited by the terms of an agreement between the lawyer and the lawyer's client. [84] The following passage from Yule v. Saskatoon (City) (1955), 16 W.W.R. 305 (Sask. Q.B.), aff'd Yule v. Saskatoon (City) (1995), 1 D.L.R. (2d) 540, 17 W.W.R. 296 (Sask. C.A.) provides the judicial background to s. 71 of the LPA: [21] In fixing the remuneration of the plaintiff in this case all factors essential to justice and fair play must be taken into account: Re Solicitor (1920) 47 O.L.R. 522, affirmed on appeal, 48 O.L.R.

363. The circumstances to be considered in arriving at the proper amount are the extent and character of the services rendered; the labour, time and trouble involved; the character and importance of the litigation in which the services were rendered; the amount of money or the value of the property to be affected; the professional skill and experience called for; the character and standing in his profession of the counsel; the results secured, and to some extent at least the ability of the client to pay: Murphy v. Corry (1906) 7 O.W.R. 363. [85] The phrase "the Registrar must consider all the circumstances" in s. 71 has been considered broad enough to encompass other relevant circumstances not enumerated in s. 71(4)(a) to (h), or factors which are essential to fair play and justice.

APPLICATION OF THE PRINCIPLES The complexity, difficulty, or novelty of the issues involved [86] The Clapci matter involved the issue of breach of trust and punitive damages. There was also a relatively complex factual matrix. There were allegations of misappropriation of funds and involvement in criminal activity with persons who allegedly had connections to the Hell's Angels. There was also the issue of valuation of the loss. The Lawyer submits that the conduct of the litigation also presented unique and additional challenges, including the Client's behaviour. [87] The Lawyer's involvement in the Daum matter was, for the most part, limited to setting aside an ex parte injunction obtained by the Client's brother, preventing the disbursement of funds paid into court in the Clapci matter until the issue relating to the Client's management of his mother's estate had been resolved. [88] The facts surrounding the Daum application were not complex or novel. It was a straightforward allegation of the Master lacking jurisdiction to make the ex parte order that he did. The skills, specialized knowledge, and responsibility required of the lawyer and the lawyer's character and standing in the profession [89] The Lawyer has over 30 years of experience in conducting civil litigation. He had the necessary skill and specialized knowledge to resolve the Clapci matter in favour of the Client. Indeed, the Court paid the Lawyer a compliment on one occasion and commented on the reasonableness of the Lawyer's bill on two occasions: Daum v. Clapci, 2014 BCSC 1524 at para. 39; Daum v. Clapci, 2014/10/17, Docket S115203, Vancouver Registry, at para. 7; Daum v. Clapci, 2014 BCSC 2515 at para.

5. The amount involved [90] The amount involved in the Clapci matter was, according to the Lawyer, potentially $1.0 million, although the actual recovery was less than half of that amount, approximately $350,000. [91] In the Daum matter, the value was in having the ex parte order set aside for the purposes of accessing the funds which had been paid into court. [92] The amount involved in the litigation was significant to the Client, as he was otherwise without funds. The time reasonably spent [93] The Lawyer itemized the various tasks undertaken by him in the three bills. The Lawyer estimates his time spent in the Clapci matter totalled approximately 158 hours. This time estimate breaks down into 120 hours for trial preparation and attendance at trial; 8 hours for preparation and attendance at the examination for discovery; 20 hours for preparation and attendance in Chambers on four occasions; and, a further 10 hours for discussions and advice with the Client. [94] In the Daum matter, the Lawyer estimates his time at a total of 50 hours, consisting of 40 hours for preparation and attendance in New Westminster Chambers and 10 hours for advice and discussions with the Client. [95] Finally, in relation to the appeal, the Lawyer estimates his time at 8 hours to review the reasons for judgment, draft the notice of appeal, and advise the Client. [96] All the time estimates are rough

calculations. They are estimates of time spent, looking back at the events as no contemporaneous time records were kept. [97] A unique aspect of this case is the fact that the Client personally did a significant amount of the trial preparation, Chambers applications, and much of the pre-trial preparation. By way of illustration, the Lawyer, during the course of his testimony, stated there had been over 20 Chambers applications in the Clapci matter, but the Lawyer only participated in four of those applications. [98] In the Daum matter, the involvement of the Lawyer was restricted to general advice and one Chambers appearance. Although the Lawyer appeared in Chambers on three occasions, two of those appearances resulted in the matter not proceeding, as no judge was available to hear the application. [99] Travel time and downtime while waiting at the courthouse to be heard are common subjects of dispute between lawyers and their clients. Lawyers often take the view that this downtime takes away from their practice, where they would otherwise be billing productively. Clients maintain the downtime adds no value to the file and lends no expertise. A balance between these competing interests needs to be achieved: Smith Hutchinson v. Victoria Golf Course, 2009 BCSC 644 at para. 96. [100] In my view, a discount has to be afforded the Client for the very significant amount of work he

personally put into the preparation of the Clapci matter and for the two of the three appearances in Chambers on the Daum matter where the case was not heard. [101] I also take note of the fact that the bills presented on both the Clapci matter and the appeal would exceed the maximum hourly rate of $400 at which the Lawyer testified he quotes his time, given the Lawyer's time estimate on each of these two matters. The importance of the matter to the client [102] The matters in issue were of particular importance to the Client. In the Clapci matter, the Client had been evicted from his own property, notwithstanding the trust agreement. The events wrongfully stripped the Client of his property and his source of income. He was essentially impecunious following the events encompassing the Clapci matter. [103] The Daum matter had the effect of tying up the insurance proceeds and denying the Client any access to funds paid into court. Both matters were of critical importance to the Client. The result obtained [104] Following the trial in the Clapci matter, the Client obtained 100% control of his numbered company, including Mr. Clapci's prior 18% shareholding, without having to repay Mr. Clapci his investment of $145,532.85, notwithstanding the wording of the trust agreement. The Lawyer also obtained orders nullifying all security documents that Mr. Clapci had registered against the

numbered company and the hotel property. The Client was also awarded punitive damages and costs. Although the claim was for $1.0 million, the overall result obtained was favourable. [105] In the Daum matter, the Lawyer's efforts were without success. Although the Master's order was quashed, the court ordered the funds were to remain in court. The result was a pyrrhic victory. The Client eventually secured the release of funds on his own, following settlement with his brother. [106] The Client's appeal remains outstanding. Therefore, success in this regard cannot be measured. [107] In a case of this nature, the only realistic way in which to calculate a fair fee is to make a global assessment, taking into account the factors, principles, and circumstances which are applicable to the entire retainer, which encompass the Clapci matter, the Daum matter, and the appeal. On this basis, I conclude a fair fee is $70,000, plus applicable taxes.

DISBURSEMENT ACCOUNTS [108] With respect to the two disbursement accounts, and having regard to the retainer/ arrangement described by the Lawyer and the Client, I find they cannot be upheld for the most part. The Lawyer testified that the Client could use the office and the facilities - meaning the photocopier, the internet, the fax, and the paper - in exchange for assisting the Lawyer from time to time in relation to his other cases, and in keeping the Lawyer's office open by maintaining a physical presence. [109] The Client essentially agrees with the evidence of the Lawyer, insofar as the Client was free to use the office fax, internet, and photocopier at no charge, except the Client testified that the Lawyer asked him to "just buy paper". There is no evidence of a change in this relationship and agreement. [110] The arrangement described by the Lawyer was essentially one of barter, supplemented with the occasional payment for services. In exchange for the use of the office and facilities, the Client would provide office duties and occasionally buy paper. [111] The air travel claimed was not sufficiently connected to the litigation or reasonably necessary and proper to the conduct of the case. [112] Given the arrangement between the Lawyer and the Client, the Lawyer is entitled to $250 towards the cost of paper; the balance of both disbursement accounts is disallowed.

CREDIT FOR MONIES ALREADY PAID [113] The Client alleges he paid a $5,000 retainer to the Lawyer on October 25, 2012, in cash, which the Lawyer denies. The Client alleges he paid $4,000 in cash to the Lawyer on March 24, 2014, which the Lawyer denies. The Client alleges he provided the Lawyer with a cash loan of $7,500 on August 15, 2014, which the Lawyer denies. [114] The Client also alleges he provided a further cash loan to the Lawyer in the amount of $1,500 on September 5, 2014, which the Lawyer denies. Finally, the Client alleges he provided the Lawyer with a further $5,000 in cash, which was placed under a water bottle in the Lawyer's office. Again, the Lawyer denies receipt of these funds. [115] None of the alleged payments were evidenced by bank records or documents of any kind. Further, none of the alleged payments were confirmed by the exchange of any documentary evidence such as an email, a receipt, or a text message, where there was an acknowledgment of receipt. The only confirmation that exists is the alleged corroborative evidence of Mr. Decotiis, whom, for reasons already stated, I find to be both unreliable and not credible. [116] It is inconceivable that an experienced litigant, who has been embroiled in various forms of litigation over the years, would not confirm the receipt of large payments of cash in one way or another. [117] The Client's forensically

recovered text message did not contain an acknowledgement of receipt nor specifics regarding an amount of cash allegedly placed under the water cooler. The text was sent on September 8, 2014, but the Client did not leave the Lawyer's office until ten days later, on September 18, 2014. There was ample opportunity to obtain some form of confirmation that the Lawyer received the $5,000 allegedly left under the water cooler, or a receipt, or some form of acknowledgment. None was obtained from the Lawyer. No credible explanation is offered for the Client's failure to do so. [118] The Client did give $14,000 to the Lawyer in April 2014, following the receipt of a settlement cheque in an unrelated action. The Lawyer referred to this payment as a loan, not a retainer. From the $14,000, the sum of $10,000 was paid directly to a friend of the Lawyer's to pay off a debt which the Lawyer owed to that friend. The balance of $4,000 was paid directly to the Lawyer's visa card. [119] Payments of this nature are a cause of concern given s.3.4-31 of the Law Society's Code of Professional Conduct. However, that is not an issue for me to decide. While I consider the manner in which these payments were made to be bizarre in the circumstances, they are nonetheless admitted and proven. [120] The Lawyer testified that if no monies were realized in the Clapci trial, he would pay the Client back the

$14,000 loan, and if he did successfully prosecute the Clapci matter, the $14,000 would be deducted from whatever fees were charged to the Client. [121] The Lawyer did acknowledge this debt and arrangement in an email dated October 15, 2014. However, the amount was mistakenly referred to as $13,000, not the $14,000 actually loaned by the Client to the Lawyer. [122] The Client has the burden of proving payments made to the Lawyer as per Davis & Company v. Jiwan et al, 2006 BCSC 658 at para.

289. I find that the payment by the Client to the Lawyer in the amount of $14,000 has been proven and admitted. The Client is entitled to have $14,000 deducted from the fees owed. I find the other alleged payments have not been proven. disposition [123] The fees of the Lawyer are allowed at $70,000 plus applicable taxes. The Lawyer is awarded $250 in disbursements plus applicable taxes. [124] Pursuant to s. 73(3) of the LPA, the Lawyer is entitled to interest calculated at the rate set by the Court Order Interest Act, R.S.B.C. 1996, c. 79, from October 14, 2014, to the date of this decision, on the unpaid fees. [125] The Client is entitled to deduct $14,000 already paid on the account from the fees owed to the Lawyer. [126] The Client is entitled to interest pursuant to s. 73(4) of the LPA, calculated at the rate set by the Court Order Enforcement Act, R.S.B.C. 1996, c. 78, on the two disbursement accounts paid, less the $250 allowed, from the date of payment to the date of this decision. [127] As the Lawyer's account has been reduced more than one-sixth, the Client is entitled to costs pursuant to s. 72 of the LPA. I summarily assess those costs at $6,000 pursuant to s. 73(2)(b) of the LPA, exclusive of disbursements. If the parties are unable to agree on an amount for disbursements, an appointment may be made through the registry for submissions in this regard. The amount allowed for costs and disbursements is to be deducted from the amount owed to the Lawyer. [128] If the amount is agreed, a certificate, signed by both counsel, may be submitted to the Registry for signature. "District Registrar Nielsen"