Darren Hart Law Corporation v. Jiang

2016 BCSC 808 Darren Hart Law Corporation v. Jiang IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Darren Hart Law Corporation v. Jiang, 2016 BCSC 808 Date: 20160509 Docket: 15-4771 Registry: Victoria Between: Darren Hart Law Corporation doing business as Hart Legal Petitioner/Solicitor And: Shu Bo Jiang also known as Sophia Bo Jiang Defendant - and - Docket: 15-4772 Registry: Victoria Between: Darren Hart Law Corporation doing business as Hart Legal Petitioner/Solicitor And: Shu Bo Jiang also known as Sophia Bo Jiang Defendant Corrected Decision: The text of the decision was corrected at paragraph 13 on May 12, 2016. Before: Master Bouck (as Registrar) Reasons for Decision Counsel for the Petitioner/Solicitor: M. Katsionis Counsel for the Defendant: N. Parhar Place and Date of Hearing: Victoria, B.C. April 25 and 26, 2016 Place and Date of Decision: Victoria, B.C. May 9, 2016 Introduction [1] This decision concerns lawyer-initiated reviews of three bills brought pursuant to s. 70 the Legal Profession Act, S.B.C. 1998, c. 9 (the "LPA"). As can be seen, the style of cause in each proceeding incorrectly names the solicitor as a petitioner and the client as a defendant. Ms. Jiang will be addressed as the "client" in these reasons. By an order pronounced on December 22, 2015, but not yet entered, the appointments were heard at the same time. [2] The bills in issue claim total fees, taxes and disbursements of $59,488.50. [3] While the client argues that the bills ought to be disallowed in their entirety, I have concluded that the Solicitor performed some work of value to the client and is entitled to a fair fee. However, that fair fee is substantially less than the amounts claimed in the bills. As a result, the client is entitled to her costs in both proceedings. Those costs, as assessed or agreed to, shall be set off against the monies due to the Solicitor. The Bills [4] Although there is no evidence to this effect, I will assume that the bills in question were delivered to the client in accordance with s. 69 of the LPA. The client did not argue otherwise. [5] There are three bills under review. The most recent in time, dated March 30, 2015, claims for only unpaid GST on a disbursement account. I did not understand the client to contest that charge. [6] The contentious bills are both dated April 28, 2064 (sic). The bills were, in fact, issued on that date in 2015. Both bills are addressed to the client and signed by Darren Hart on behalf of Hart Legal. The bills reference different subject matters. One bill, for professional services rendered with respect to Family Matters - Contingency, states the total owing to be $39,914.01. The second bill, for services with respect to Civil Litigation - Abuse, claims total charges owing as $19,516.77. Both bills contain detailed descriptions of services performed by Hart Legal personnel on a particular date. In the family law matter, the Solicitor has charged the client for nearly 166 hours of personnel time at various hourly rates. On the civil litigation file, the Solicitor has charged the client for 80.3 hours, also at varying hourly rates. [7] Both bills carry the notation that interest will be charged at 18% per annum on accounts overdue past 30 days. The Evidence [8] Evidence was received from three lawyers: Krystle Gill, Gurinder Bains and Darren Hart. Mr. Hart describes himself as a lawyer and businessman and is the principal of the Solicitor. Ms. Bains is an associate lawyer at Hart Legal and had partial conduct of the client's civil litigation file. Ms. Gill was formerly an employee and/or independent contractor with Hart Legal and introduced the client to the Solicitor's office. During her tenure at Hart Legal, Ms. Gill had primary conduct of the client's family law file and was also involved in some aspects of the civil litigation matter. Ms. Gill left the employ of Hart Legal in late April 2015 to join another Victoria-based law firm. It is the circumstances surrounding the transfer of the family law and civil litigation files from Hart Legal to Ms. Gill's new firm that lies at the crux of this fee dispute. [9] At a pre-hearing conference held April 18, 2016, Mr. Parhar advised that the client would not be giving evidence as she is suffering from a serious health issue. Mr. Parhar did not seek an adjournment of the hearing to allow for Ms. Jiang's attendance at a later date. Also at that conference, the parties advised that each would be calling Ms. Gill as a witness. There was some discussion about the Solicitor seeking leave to call Ms. Gill as a witness adverse in interest. At the hearing of the appointments, however, counsel confirmed their agreement whereby Ms. Gill would be presented as a "neutral" witness, with each party having the opportunity to ask leading questions in direct examination. Ms. Gill's evidence proceeded accordingly. The Retainer [10] The solicitor-client relationship between Ms. Jiang and Hart Legal began in June 2014. The client was referred to Ms. Gill by a third party. At an initial meeting between the client and Ms. Gill held on June 12th, Ms. Jiang relayed information about her marital breakdown and subsequent divorce. Ms. Jiang and her ex-husband, Mr. Zhang, lived together in Victoria from 2005 until their separation in 2011. On June 16, 2011, Ms. Jiang and Mr. Zhang entered into a separation agreement. Neither was represented by counsel at that time. A divorce order incorporating the terms of the agreement was issued in China one month later. Following the divorce, Ms. Jiang continued to live in Victoria, while Mr. Zhang lived in China. Under the terms of the separation agreement, Ms. Jiang was given ownership of the couple's Victoria property on Laval Street. That property was said to be worth between $600,000 and $700,000. Mr. Zhang retained ownership of the couple's Beijing residence which the client valued at more than $2 million (CDN). The couple's only child is an adult attending a post-secondary institution in Vancouver. [11] Ms. Jiang relayed incidents of domestic violence at the hands of Mr. Zhang. It was alleged that one such incident, occurring in 2009, caused Ms. Jiang to suffer a perforated ear drum requiring surgical intervention. [12] By 2014, Ms. Jiang had come to believe that the terms of the separation agreement were unfair to her with respect to property division and spousal support. Ms. Jiang was receiving no spousal support and had an annual income of $12,000. Ms. Jiang also believed that Mr. Zhang had failed to disclose all of his assets when the separation agreement was negotiated. [13] Immediately following this initial meeting, Ms. Gill wrote to Ms. Jiang confirming that the latter wished to retain Hart Legal to "attempt to negotiate a fair property division without going to Court, if possible". The email confirmed two retainer options available to the client: payment for legal services on an hourly rate basis or a contingency fee arrangement. The email identifies some of the difficulties Ms. Jiang faced in the successful prosecution of her family claim, including the fact that the claim might be statute-barred. Indeed, the circumstances presented by Ms. Jiang brought into play provisions of the 1996 Limitation Act and its 2012 successor, as well as the repealed Family Relations Act and the 2013 Family Law Act. [14] English is Ms. Jiang's second language. Throughout the retainer, Ms. Gill had no concerns with Ms. Jiang's ability to comprehend verbal or written communications in this language. Now, in retrospect, Ms. Gill believes that the client did not fully understand all of those communications. Ms. Gill did not provide any examples of such misunderstandings. [15] The client chose to retain Hart Legal through a contingency fee agreement. Thus, the next steps undertaken by Ms. Gill were the preparation of the agreement and the application for court approval of the arrangement as required by s. 67(4) of the LPA. [16] Ms. Gill did not enjoy complete autonomy within Hart Legal with respect to either retainer arrangements or the conduct of any file. Not unusually, Ms. Gill was required to seek Mr. Hart's approval of any out of the ordinary billing arrangement with a client. Also, Mr. Hart would be involved in almost all files, at the very least as a strategist. [17] Mr. Hart recalls discussing Ms. Jiang's proposed terms of retainer with Ms. Gill, including the expected return to the Solicitor on a contingency fee. He was aware that the client owned property worth between $600,000 and $700,000 but did not know if there was any equity in that property. Ms. Gill says that Mr. Hart encouraged and approved the contingency fee arrangement because the resulting fee would be a windfall to the Solicitor. Mr. Hart denies that suggestion, noting that fees in the hundreds of thousands of dollars are often charged by the Solicitor to a client in hourly rate retainers. Mr. Hart believed that there was some merit to Ms. Jiang's family law claim as a similar claim had been successfully resolved by another lawyer then employed by Hart Legal. [18] The contingency fee agreement was executed by the client and Ms. Gill on June 17, 2014. The agreement is atypical in that there is only one reference to Hart Legal in the document and none to corporate entity named in the within appointments. That reference is the identification of "Krystle Gill of HART LEGAL" as the second party to the contract. The agreement thereafter gives "Krystle" the authority to incur disbursements and charge for services in certain circumstances. [19] Under the terms of the agreement, the client agrees to pay a contingency fee as follows: 3. The parties hereto agree that the amount of fees shall be: a. If the action is settled prior to commencing an action in the Supreme Court of British Columbia, the fees will be 25% of the total settlement; and b. If the action is settled after commencing an action in the Supreme Court of British Columbia, or judgment is obtained at trial, the fees will be 30% of the total judgment or settlement. [20] Of importance to the outcome of these proceedings, clause 10 of the agreement states: 10. If, for any reason, the Client instructs Krystle to discontinue or not proceed with the action or refuses to follow Krystle's advice, or requests a change of solicitor, then the Client will pay fees at the hourly rate then charged by Krystle for services rendered up to the date of discontinuance or change of solicitors. [21] The agreement also makes reference to an attachment entitled General Terms of Service, which apparently outlines the firm's policies and general procedures. That attachment is not in evidence. [22] The agreement makes no reference to interest being charged on any account or bill issued to the client. [23] The agreement's preamble references only the family law matter. According to Ms. Gill, there was an understanding with Ms. Jiang that the domestic abuse claim could be pled in the family law proceeding. [24] Between June 12 and August 6, 2014, Ms. Gill together with other lawyers and legal assistants at Hart Legal worked almost daily on Ms. Jiang's file. While other aspects of the claim were pursued during this period, including the drafting and filing of a notice of family claim, the majority of time was spent preparing for the s. 67(4) application and conducting "team" or inter-office meetings. According to the bills, Mr. Hart was regularly involved in such meetings. Mr. Hart recalls meeting with Ms. Jiang on two occasions, but says that he was otherwise only peripherally involved in both client files. That peripheral involvement included "dispensing wisdom" and offering "gut feelings" on strategy. Mr. Hart encourages his associates to "get results quickly" as the client is then "happy to pay" for the legal services. [25] The contingency fee agreement was approved by the court on August 7, 2014. Hart Legal has charged the client between $4,000 and $6,000 for the time spent drafting and obtaining court approval of the contingency fee agreement. The exact amount of fees is impossible to calculate as other services are charged for contemporaneously in the bill. Mr. Hart was equivocal as to whether charges related to the retainer terms are properly borne by a client. There is no evidence to suggest that the client agreed to pay fees for these steps or even knew about such potential charges. Conduct of the Family and Civil law actions [26] By late August 2014, the notice of family claim had been served and Mr. Zhang had retained counsel. That counsel, J. Michael Hutchison, Q.C., immediately brought an application to strike the pleading. Ms. Gill acknowledges that the claim as it then stood was not properly pled. The application to strike came before the court on at least two occasions but did not proceed on the merits. Eventually, Mr. Hutchison agreed on behalf of his client that Ms. Jiang could discontinue the action and start afresh. A notice of discontinuance and a new notice of family claim were filed simultaneously on October 6, 2014. [27] Meanwhile, on September 14, 2014, the Solicitor had filed a notice of civil claim on Ms. Jiang's behalf in relation to the domestic abuse allegations. Ms. Gill says that the domestic abuse claim was originally intended to be pled in the family law proceeding. Instead, Mr. Hart recommended that a separate suit be brought for strategic purposes. Specifically, Mr. Hart expressed the view to Ms. Gill that this separate action would encourage settlement discussions. [28] There is no retainer agreement with respect to the civil matter, nor any written communication to Ms. Jiang on the topic. Ms. Bains never discussed the retainer terms with the client as such arrangements are solely within Mr. Hart's purview. [29] Mr. Zhang next renewed his application to strike the family law pleading and also sought summary dismissal of the civil suit. Ms. Gill needed some assistance in responding to the two applications. Following more inter-office meetings, Ms. Bains took conduct of the civil claim, while Ms. Gill continued to be the primary lawyer on the family law claim. [30] The two applications were heard by Bracken J. starting on November 27, 2014 and completing on March 3, 2015. Ms. Gill argued the application to strike the family claim; Ms. Bains argued the summary dismissal application. Mr. Justice Bracken issued reasons for judgment on March 12, 2015: Jiang v. Baojiang, 2015 BCSC 394. In the family law proceeding, the claim for spousal support was struck. However, the plea for variation of the separation agreement remained alive at least for the purpose of allowing the client an opportunity to extend the limitation period pursuant to s. 68(3) of the Family Relations Act. The court dismissed the application with respect to the civil claim, finding that the extinguished cause of action had been revived by the 2012 Limitation Act: para. 35. Costs of the applications were ordered to be in the cause. [31] Despite the uncertain outcome of these applications, work on the two files continued apace at Hart Legal for the balance of 2014. There was a lull of activity in the months of January and February 2015. [32] The bills and Hart Legal internal ledgers reveal that up to nine different personnel, including legal assistants, performed work on the client's files during the course of the retainer. According to Mr. Hart, time was recorded by the Solicitor's personnel in the event that fees were later billed to the client on an hourly rate basis. According to Ms. Gill, time was recorded as a matter of Hart Legal policy. That is, Mr. Hart wanted a record of the work performed by each employee even if the time spent on that work was never intended to be billed to a client. Transfer of the Files [33] By late March 2015, Ms. Gill had accepted her current position and gave notice of her pending departure to Hart Legal. [34] Ms. Gill says that Mr. Justice Bracken's order dealt a serious blow to the family law claim. She discussed the matter with Mr. Hart, who inquired about the value of the ongoing claim. Ms. Gill suggested that value to be about $200,000. [35] On March 24th, Ms. Gill advised the client by email that she would be leaving Hart Legal. In that same communication, Ms. Jiang was advised that she would be required to pay all disbursements incurred by Hart Legal up to that date ($2,517.63) in order for Ms. Gill to "take the file" to Cassels Murray. Ms. Jiang was also given the option of continued representation by Hart Legal but would "begin paying legal fees on an hourly rate basis." The email does not make specific reference to either the family law or civil law matter. [36] On March 26, 2015, the human resources manager for Hart Legal sent the following email to Ms. Gill: Hi Krystle, Please see the below conditions of release on your contingency files. Jiang (family file): o The client will pay out her disbursements before the file is released ($2,517.63 as of March 26) o KG will pay Hart Legal 30% of the settlement reached, and will pay herself and distribute funds to the client AFTER Hart Legal has been paid. OR o The client will pay our current WIP at a 35% discount ($35,637.50 - $12,473.13 = $23,164.37) plus $2,517.63 in disbursements due before the file is released. An example of the accounting to be provided upon settlement of the file is attached. Please let us know if you have any questions. [37] This email was copied to Mr. Hart and two other individuals, but not the client. The example of an accounting referenced in the email was not put in evidence. The March 30, 2015 disbursement account was issued to the client but apparently neglected to include GST charges. [38] Ms. Gill left her employment with Hart Legal on March 31, 2015. Ms. Jiang's family law file was physically transferred to Cassels Murray on that same day. Ms. Gill says that Mr. Hart gave his consent for the file transfer. However, Mr. Hart wanted Ms. Jiang's civil suit to remain with the Solicitors with Ms. Bains continuing as the responsible lawyer. [39] In early April 2015, Mr. Hart reviewed and approved the terms of a demand letter prepared by Ms. Bains on the civil file. Ms. Bains in turn vetted the settlement proposal with the client. The demand letter delivered to Mr. Hutchison on April 7, 2015 seeks payment from Mr. Zhang of $161,900 in damages plus costs. The offer was not accepted and no counter-offer was forthcoming. In a later communication from Mr. Hutchison to Ms. Gill, this demand was described as "so extravagant that it ruled out any reasonable possibility of compromise" on that action. [40] Also in early April 2015, Hart Legal advised the client of the trial dates fixed in the civil action as well as the efforts being made to schedule examinations for discovery. [41] On April 27, 2015, Ms. Gill sent an email to Ms. Bains advising that the client wished to also transfer her civil file to Cassels Murray. There is no evidence of any communication between the client and Hart Legal regarding this proposed transfer. The date of the physical transfer of the file is not clear on the evidence. Meanwhile, Ms. Jiang had agreed to an hourly rate retainer with Cassels Murray with respect to each of the civil and family law files. Post-transfer events [42] Despite the family law file being readily transferred to Cassels Murray, it soon became apparent that Ms. Gill and Hart Legal did not have an agreement on the financial terms of that transfer. Ms. Gill understood that the Hart Legal claim for fees would be based on a pro rata share of any settlement or judgment. How those shares were to be determined (time or value based?) was not explained in the evidence. Hart Legal took the position that it was to be paid the full contingency fee upon settlement or judgment and such a payment was in priority to any fees charged by Cassels Murray. [43] Less than 24 hours after receipt of Ms. Gill's email regarding the transfer of the civil file, Hart Legal issued the bills that are the subject matter of this review. The bills were attached to an email sent by Hart Legal's human resources manager to Ms. Gill and copied to the client. In this email, Ms. Burnett advises as follows: Hi Krystle, Pursuant to paragraph 10 of the signed contingency fee agreement (attached), as the client has advised she wishes to change counsel from Hart Legal to Cassels Murray, the client is responsible to pay fees at the hourly rate for work up to the date of discontinuance/change of counsel. As such, we attach our current accounts for both of Ms. Jiang's files, the family and civil proceedings. We confirm that Ms. Jiang has paid the disbursements on her family file in the amount of $2,575.35 up to and including April 1, 2015. As such, once Ms. Jiang has paid the account for her civil file, we will release the file to you. Notwithstanding paragraph 10 of the signed contingency fee agreement, we are prepared to wait on payment of Ms. Jiang's family account on your undertaking to pay this account once it has been resolved by virtue of settlement, judgement, discontinuance, dismissed, or abandoned, and on your undertaking that Hart Legal's accounts will be paid before releasing any funds to Ms. Jiang, and before paying yourself/Cassels Murray). Once we have written confirmation of your agreement to the undertakings above, and we have received payment of Ms. Jiang's civil invoice, we will prepare the file for pickup. We look forward to hearing from you. [44] Ms. Gill did not accept the proposed undertaking. However, Ms. Jiang did pay the Hart Legal disbursement account for the civil litigation file. [45] Although Ms. Gill provided the Solicitor with her consent to contact the client directly with respect to billing matters, there is no evidence that such communication efforts were ever made by Hart Legal. Instead, Hart Legal next retained outside counsel, Richard Margetts, Q.C., to deal with Ms. Gill regarding the fee dispute on the client's files. Negotiations between Ms. Gill and Mr. Margetts carried on into the late spring of 2015 but eventually reached an impasse. Despite the earlier assurance that Hart Legal would not attempt to collect on the bills, overdue account notices were issued to the client claiming interest at 18% per annum. Ms. Gill's consent to direct contact between the Solicitor and the client was revoked in an email sent May 27, 2015. [46] By the summer of 2015, Ms. Gill had conduct of the civil file. As noted, further overtures by Ms. Gill to Mr. Hutchison regarding settlement of the civil action were rejected. Examinations for discovery in the action were conducted in September 2015. Hart Legal had set a trial date in the civil action for February 9, 2016. At Ms. Gill's request, the trial was adjourned to dates in March 2016. [47] There is no evidence of any steps taken by Ms. Gill to prosecute either the civil or family law claim during the fall of 2015. Ms. Jiang did not apply for a remedy under s. 68(3) of the Family Relations Act. [48] On December 9, 2015, the two appointments, each seeking "review and directions" with respect to the Hart Legal bills, were issued. Mr. Margetts is counsel of record in the appointments. The Solicitor secured a hearing for both appointments for the afternoon sitting on December 22, 2015. Service of the appointments was directed to the client c/o Mr. Parhar's office. On December 22, 2015, the parties appeared before Master Scarth who adjourned both appointments to April 25, 2016, and ordered that they be heard at the same time. Master Scarth also gave directions on the exchange of objections and other information, no doubt in an effort to narrow the issues between the parties and ensure the efficient conduct of the hearing. Instead of filing requisitions, or having Master Scarth's order entered, the Solicitor chose to file two new appointments setting the review hearing for the April dates. The new appointments request "review and taxation" of the bills. [49] By February 2016, Ms. Gill was requesting an adjournment of the upcoming civil trial. In response to this request, Mr. Zhang offered to waive his costs in exchange for a consent dismissal order in each action. Ms. Jiang accepted this offer on or about February 23, 2016. There is no evidence of any communication to Ms. Jiang addressing the consequences of accepting this offer vis-à-vis the bills issued by Hart Legal. The Parties' Positions [50] Hart Legal submits that it is entitled to recover the total sums billed to the client, relying primarily on general contractual principles but also applying the factors under s. 71 of the LPA. The Solicitor argues that s. 10 of the contingency fee agreement requires payment for services on both files on an hourly rate basis. Alternatively, the Solicitor submits that fees should be awarded on a quantum meruit basis. The Solicitor attempted to argue the fairness and reasonableness of the contingency fee agreement. Counsel were advised that those submissions would not be considered as the pleadings did not seek an examination of the agreement which, in any event, is a remedy only available to the client: LPA, s. 68. [51] The client submits that s. 10 may not be invoked by the Solicitor since the file transfers from Hart Legal to Cassels Murray came about through no fault of her own. As a result, Ms. Jiang has no obligation to pay Hart Legal for services on an hourly rate basis or at all. The client also argues that since there was no recovery by the client, there can be no recovery of fees by Hart Legal. In the alternative, the client submits that a fair fee to be paid to the Solicitor must be substantially less than the amounts charged in the bills. Discussion [52] As already observed, this proceeding does not involve an examination of the contingency fee agreement. Nonetheless, many of the principles stated or reiterated by the Court of Appeal in Mide-Wilson v. Hungerford Tomyn Lawrenson and Nichols, 2013 BCCA 559, are relevant to this case. Some of those principles are: 1. There is a duty on the solicitor to establish that the client understood any fee agreement, that the fee is reasonable and that the transaction was in all respects fair: para. 85; 2. A retainer effectuates a duty of utmost good faith on the part of the solicitor -- it creates a relationship of trust and confidence from which flow obligations of loyalty and transparency. The obligation of candour requires the solicitor to be candid with the client on all matters concerning the retainer, including ensuring that in any transaction from which the solicitor receives a benefit, the client has been fully informed of the relevant facts and properly advised upon them: Nathanson, Schacter & Thompson v. Inmet Mining Corp., 2009 BCCA 385 at paras. 34, 48 and 49; and 3. Maintaining the integrity of the legal profession is an important factor in determining a fair fee and is not overridden by contractual provisions: Mide‑Wilson at paras. 88-97. [53] In a more aged case, the court reminds us that in any fee arrangement, the dignity and integrity of the legal profession demands that the interests of the client be fully protected: McQuarrie Hunter v. Foote, [1983] 2 W.W.R. 283 (B.C.C.A.). [54] Mr. Parhar accurately describes this proceeding as a dispute between lawyers. These two lawyers, Ms. Gill and Mr. Hart, never had a meeting of minds with respect to a fee sharing arrangement despite their conduct to the contrary. What has been consistently overlooked by Mr. Hart, on behalf of the Solicitor, is a consideration for and protection of the client's interests. [55] In my view, Hart Legal either ignored or neglected its fiduciary duty to the client in its billing and subsequent collection practices on these two files. It behooved Hart Legal to engage Ms. Jiang directly and ensure that she understood the Solicitor's financial terms when the files were transferred. The only communication to the client is an email -- only copied, not directed to the client -- whereby Hart Legal agrees to wait until the actions are settled or adjudicated upon before collecting on their fee. Instead, Hart Legal issued the bills (in a copied email, no less) and began asserting claims for interest on overdue accounts. Based on Mr. Hart's evidence, the client's understanding of the retainer terms was of little to no concern to the Solicitor. The only concern of the Solicitor was, and remains today, the collection of monies. [56] Given Hart Legal's disregard of its duties to the client, it is tempting to disallow both disputed bills in their entirety. Such a result would convey the message to the public and the legal profession that judicial overseers do not countenance the billing practices evidenced in this proceeding. Nonetheless, I was not referred to any authorities that support this rather draconian result. Furthermore, the client was aware that steps were being taken by Hart Legal on her behalf in the two lawsuits. Ms. Jiang did receive some value for those services. [57] Thus, the question that must be determined on this review is the monetary value of those services. [58] The Solicitor should not be permitted to rely on s. 10 of the contingency fee agreement as support for its billing methodology. The language in s. 10 is at best ambiguous as to whether Hart Legal or only "Krystle" can charge for services on an hourly rate basis upon termination of the retainer. Any ambiguity must be resolved in favour of the client. Ms. Gill's hourly rate at the time was $275. Instead, Hart Legal chose to issue a bill that included fees based on hourly rates as high as $450. The client was never made aware of the hourly rates of any Hart Legal personnel until she received the bills. In any event, if I am wrong and the Solicitor can rely on s. 10, the registrar is not bound by that provision in assessing a fair fee: LPA, s. 71(5). [59] I find that there was no retainer agreement whatsoever between the client and Hart Legal on the civil law matter. [60] The determination of a fair fee is governed by s. 71 of the LPA which provides as follows: Matters to be considered by the registrar on a review 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. [61] A the end of the day, the registrar's assessment of a fair fee should take into account all factors essential to fair play and justice. [62] While the two bills in issue should be addressed individually, there are some findings to be made on the s. 71(4) factors which are common to both bills. First, the family and civil law matters were important to the client. On the other hand, the vast majority of time spent by Hart Legal personnel on the files was grossly excessive and entirely unreasonable. As will be further discussed below, there were many steps taken by the Solicitor on each file that were either unnecessary or did not advance the client's claims in any way. Fair Fee in the Family Law Action [63] The steps taken by Hart Legal that were reasonably necessary and proper to conduct Ms. Jiang's family law action include: · meetings and communications with the client regarding the facts of the claim and seeking additional instructions; · drafting a notice of family claim; · communications with opposing counsel, except with respect to the improperly drafted pleadings · legal research on the issues of applicable limitation periods, the interaction of the Family Law Act and the Family Relations Act on the claim, and the consequences of the foreign divorce order; · preparation for and attendance at the application before Bracken J. [64] The steps that were neither authorized by nor subsequently approved by the client include all of the process relating to the contingency fee agreement (Krahn (Re), 2014 BCSC 2003 at para. 62); the re-drafts of the notice of family claim; and the multiple inter-office meetings. None of the services ought to have been billed to the client. There is no objective evidence to suggest that the involvement of multiple personnel at Hart Legal added any value to the retainer. One example is the drafting of the notice of family claim. Despite the involvement of several lawyers in that planning and drafting exercise, it took three tries by the Solicitor to get the pleading correct. In addition, there is time recorded and billed for on the family law file that, in fact, relates to steps properly undertaken in the civil file. [65] In terms of the s. 71(4) factors, the family law claim had some complexity. Given that complexity, there was a responsibility on the part of the Solicitor to properly plead the claim and defend the application to strike the pleadings. The standing of the lawyers involved in this retainer is of little consequence, except to say that a junior lawyer such as Ms. Gill had the requisite skill to manage the retainer on her own. The Solicitor's efforts kept the family law claim alive for the prosecution of the client's property claims. Hart Legal had no hand in the eventual dismissal of the claim. The amount involved was in the range of several hundreds of thousands of dollars, if not more, depending on the valuations of the properties involved. [66] Taking all of these factors into account, I find that a fair fee for the services rendered to the client on the family law file to be $7,000. Fair Fee in the Civil Law File [67] In the civil law action, the Solicitor should be allowed fees for taking instructions from the client, investigating the factual basis for the claim (including obtaining and reviewing medical records and interviewing witnesses), preparing the notice of civil claim and demand letter, communicating with opposing counsel, conducting legal research on quantum of damages, setting examination for discovery and trial dates, and defending the application to strike the pleading. [68] As with the family law claim, there is no evidence of any value brought to the retainer by the multiple inter-office meetings or involvement of other Hart Legal personnel -- with the exception of discussions between Ms. Gill and Ms. Bains concerning the strike applications. [69] The determinations with respect to the s. 71(4) factors in the family law matter can be transposed almost verbatim here. While the pleading in the civil law claim was not particularly complex, the Solicitor bore the responsibility of keeping that claim alive in the face of the limitation period. Ms. Bains showed herself to be capable of managing this civil suit on her own, seeking advice as directed by the Solicitor's policies rather than out of actual necessity. The amount involved in the proceeding is impossible to state with any accuracy but the client approved a settlement demand in the sum of $161,000. The civil law action was indeed kept alive during the Solicitor's retainer. As with the family law action, the Solicitor was not involved in the resulting consent dismissal of this second action. [70] Taking all of these factors into account, I find that a fair fee for the necessary and proper services performed by the Solicitor on the civil file to be $5,000. Interest [71] Pursuant to s. 73(3) of the LPA, the registrar must add interest to the amount certified to be owing to the Solicitor. Since there is no written agreement between the parties, that interest would be pursuant to the Court Order Interest Act and not the 18% per annum charged in the bills. However, if interest is claimed by the Solicitor, I will require written submissions from the parties on the question of when the bills in question became due. The evidence is not at all clear on that issue given the ambiguous or contradictory communications from the Solicitor on when it expected to be paid for its services. Costs [72] Both of the bills have been reduced by more than 1/6th. Pursuant to s. 72 of the LPA, the client is entitled to her costs (Scale B) and disbursements in each proceeding. [73] With respect to costs, the client may claim in each proceeding tariff items 1, 2, 24, 25, 29 and 30. For the purposes of items 24 and 25, the review hearing occupied two full days. In addition, the client may claim two ½ days relating to the pre-hearing conferences. [74] The Solicitor took out a notice of case planning conference in each proceeding and set those conferences down for April 7, 2016. At that appearance, the notices were struck as nullities as case planning conferences can only occur in a proceeding commenced by a notice of civil claim. The client wisely chose not to prepare a case plan proposal for this appearance but was still required to prepare for the event and attend that day. She is entitled to additional costs under items 24 and 25 (½ days) in each proceeding as the Solicitor put the client to this unnecessary expense: SCCR 14-1(9). [75] If the parties are unable to reach agreement as to costs, an assessment may be set down by requisition. I am not seized of this assessment. Summary [76] The Solicitor is entitled to fees of $7,000 plus taxes in relation to the bill that is the subject matter of action no. 15-4772. [77] The Solicitor is entitled to fees of $5,000 plus taxes in relation to the bill that is the subject matter of action no. 15-4771. [78] The client has already paid the disbursements charged by Hart Legal and did not take issue with any of those charges at this review. [79] The client is entitled to her costs in each proceeding, with the amount to be determined by assessment or agreement between the parties. The costs are to be set off against the amount found due to the Solicitor. [80] The parties have leave to provide written submissions on the question of the Solicitor's entitlement to interest and from what date any such interest began to accrue. The submissions should be delivered to the manager of Court Scheduling by 5 p.m. on May 26, 2016. [81] Finally, the Solicitor has yet to properly draw and enter the order of Master Scarth made December 22, 2015. Although assurances were given at the April 18th pre-hearing conference that such a step would be completed, the Solicitor instead included in its hearing record a document entitled "case plan order". That document purports to reflect the terms of Master Scarth's order. The document was not referred to at the hearing. Lest there be any ongoing misunderstanding on the Solicitor's part, a case plan order can only result from a case planning conference. The appearance before Master Scarth was a pre-hearing conference. The Solicitor is directed once again to forthwith draw and enter the order of Master Scarth made December 22, 2015. "C.P. Bouck" Master C.P. Bouck