Smiley Hibbard Macaulay v. O'Neill

2004 BCSC 863.err1.doc Smiley Hibbard Macaulay v. O'Neill IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Smiley Hibbard Macaulay v. O'Neill, 2004 BCSC 863 Date: 20040629 Docket: L021982 Registry: Vancouver Between: Smiley Hibbard Macaulay Solicitors And Richard O'Neill Client Before: Master Hyslop as Registrar Reasons for Judgment Counsel for the Solicitors K. Henriksen and K.M. Jackson Counsel for the Client F. Lepine Date and Place of Trial/Hearing: August 18, 2003 and April 1, 2004 Vancouver, B.C. [1] The client, Richard O'Neill ("client"), took out an appointment to have a number of accounts reviewed pursuant to s.70 of the Legal Professions Act (the "Act"). The accounts are those of William Hibbard (the "lawyer") of the law firm of Smiley Hibbard MacAulay (the "solicitors") bearing the following dates and amounts: see attached Schedule A. [2] Account #7, in the amount of $4,503.39, remains unpaid. [3] Prior to this hearing, there was a dispute as to whether these accounts were for one retainer or two. Master Doolan determined it was a single retainer. On appeal, he was upheld. LAWYER: [4] The lawyer was called to the Bar in 1972; practising continually since that date. The lawyer's practise is in the area of labour and employment law. He has dealt with approximately 1,000 cases with issues such as those of the client's. CLIENT: [5] The client is a member of the Hospital Employees' Union ("HEU"). The client is married to Cynthia Javier and is aged 47. He was employed by Providence Health Care (the "employer") who ran the housekeeping department at St. Vincent's Hospital in Vancouver. The client held seniority since 1987. The client's position was in building maintenance and that of weekend lead hand. The client has a grade 12 education. He has worked in hospital settings since approximately 16 years of age. RETAINER: [6] The client was referred to the lawyer through a lawyer referral service. The lawyer met with the client in the lawyer's office on August 22, 2001, together with his wife. [7] At that meeting, the client showed the lawyer a letter he had received from the employer (exhibit 1, tab 2): Richard O'Neill #450 - East 34th Avenue Vancouver, B.C. V5W 1A3 Via Registered Mail Re: Five-day Suspension In my letter of May 28, 2001, you were specifically instructed that, "You will be subject to immediate and severe disciplinary action if there is any retaliatory behaviour on your part in respect to these and any other allegations brought forward." You have disregarded these instructions by confronting a Patient Care Leader who was a witness to the incidents that gave rise to the letter. In a very aggressive manner you attempted to persuade her to change her evidence. Once again your conduct was totally unacceptable and as a result you are hereby suspended five (5) days commencing August 21, 2001. Your continued refusal to stop harassing and intimidating fellow employees has put your employment at Providence Health care in jeopardy. Yours truly, "Lizbeth Stoner" Lizbeth Stoner Labour Relations Officer [8] The lawyer advised the client that the matters raised in the letter were serious. [9] The lawyer stated that the client was extremely concerned that he would lose his job. Besides his concern of losing his job, the client was concerned for his future and his pension. He told the lawyer that he did not believe he could obtain another job similar to the one he had. The client told the lawyer that the HEU was not standing behind him. The lawyer advised the client that he required a $3,000.00 retainer, and when that money was used up he expected more money. The lawyer told the client that he would work for him at the rate of $225.00 per hour, plus disbursements and applicable taxes. The lawyer told the client that from time to time, as work proceeded, accounts would be rendered and they were to be paid as they fell due. The client was entitled to terminate the lawyer at any time. The client's wife was to take financial responsibility for the file. [10] The client told the lawyer that he was to "do whatever it takes, as money is not a problem". The terms of the retainer between the lawyer and the client are not in dispute. [11] The lawyer instructed the client to file a grievance relating to the letter at exhibit 1, tab 2, which he did (exhibit 1, tab 4). At the request of the lawyer, and on the same day as the client and lawyer met, the client delivered to the lawyer his employment file. [12] On August 22, 2001, the lawyer stated that the client appeared to be agitated, and the lawyer inquired as to whether the client suffered from any health problems. The lawyer learned the client had a drinking problem and was a member of Alcoholics Anonymous ("AA"). The lawyer told the client to contact of his AA sponsor and arrange to meet with the sponsor, which the client did. The lawyer told the client that he would not act for him unless he was in a recovery program. [13] The lawyer reviewed the client's file briefly, and advised the client of the process for challenging the client's disciplinary employment record, which the lawyer hoped to expunge. The lawyer explained to the client that the client would have to seek redress through HEU's internal procedures, and if unsuccessful, then a s.12 complaint pursuant to the Labour Relations Code could be filed. The lawyer made it clear to the client that any complaint to the Labour Relations Board was a long way off. The lawyer reviewed the client's file, concluding that the client's file revealed a number of serious problems, including a Labour Relations investigator's report which gave the lawyer concern. The lawyer stated in his evidence that the file was thick, and that it was one of the worse employment records he had seen. He believed that the client understood the seriousness of the matter. [14] The lawyer said in evidence, that after reading the file, he had a general understanding of the client's problems, but that the file does not tell everything. He concluded that he had to obtain some background information. He concluded that the client was unable to tell him any information about his employment file. The client suggested that the lawyer meet with Messrs. Humphries and Lariot, both of whom had served at different periods of time, in HEU positions. [15] During one of their initial meetings, the client asked the lawyer whether there was any chance of recovering from HEU his legal fees. The lawyer told the client "No chance at all". Sometime later, the lawyer reviewed this with the client's wife, confirming there was no chance of collecting the legal fees from HEU. The lawyer stated, that the client's wife appreciated and understood this. In her evidence, the client's wife stated that the lawyer said the fees would be tax deductible. In his evidence, the lawyer denies this, stating that he never gives tax advice. It was discussed that in the event it was necessary to make a section 12 complaint to the Labour Relations Board, and if there were settlement discussions, then legal fees could be raised at that time. LEGAL WORK PROVIDED BY THE LAWYER: [16] The lawyer was to prepare a submission directed to HEU on behalf of the client. The legal work performed by the lawyer on behalf of the client can be summarized as follows: 1. Initially, several meetings with the client; 2. Reviewing the client's file regarding disciplinary matters and the collective agreement between the HEU and the employer; 3. Interviewing Messrs. Humphries, Lariat and the client's wife; 4. Office and telephone conferences with the client and his wife; 5. Legal research; 6. Preparation of a submission to the HEU, of which there were several drafts, and reviewing them with the client; 7. Preparation of grievances; 8. Submission to the Labour Relations Board. [17] The work provided by the lawyer, on the whole, was not disputed. The areas in dispute were: 1. How long did the lawyer spend interviewing Messrs. Humphries and Lariot; and 2. The necessity of interviewing the client's wife. [18] The lawyer stated that Mr. Lariot had no information that would assist in his investigation; however, Mr. Humphries was most sympathetic to the client and provided the lawyer with extensive information. As a result of the interview with Mr. Humphries, the lawyer learned that disciplinary meetings of the client often took place in the absence of the client. The lawyer's notes in the client's file and the cross-examination of Mr. Humphrey confirms the contents of the interview and the time spent by the lawyer. [19] The client's wife's gave evidence at this hearing. She was critical of the lawyer interviewing her as being unnecessary. The lawyer explained that the client had little memory of his disciplinary matters, and often obtained information from his wife regarding these matters. [20] By the fall of 2001, meetings took place in the presence of the client, the employer and the HEU. On December 7 2001, the client received a letter (exhibit 1, tab 11) stating that the HEU would be meeting with the client in the New Year to discuss the grievances. At that time, the client told the lawyer to do no further work, as he believed that the HEU would be dealing with his matters. [21] On January 17, 2002, the client told the lawyer that the HEU had done nothing to resolve the grievances. On that date, the lawyer, acting on the client's instructions, prepared two grievances on behalf of the client. [22] On January 27, 2002, the lawyer delivered a 27-page written submission to HEU, approved by the client. It was at this time that the lawyer rendered another account dated January 22, 2002, which account was by far the largest of accounts delivered to the client. At this time, the lawyer told the client he would not charge anything further for assisting the client in any matters relating to the internal grievance procedures within HEU. [23] The client was anxious to proceed with the complaint to the Labour Relations Board, advising the lawyer that part of his reason for doing so was the possible recovery of his legal fees. The lawyer advised the client that he had to wait for the results of the submissions to HEU. [24] On February 5, 2002, the client telephoned the lawyer. The lawyer's note of this call (exhibit 1, tab 15) is as follows: Feb. 5. tel call from Richard Cynthia told Richard I was to proceed. I was not to stop. There was no problem with the money & he would see I was taken care of & money would not be an issue. I remarked to him what a wonderful supportive person she was to him & he agreed completely. Richard said he wanted letter sent right away. I confirmed with him name of union rep. letter was being sent to be acknowledged that was correct. (He had earlier given me her name). I told him letter would be faxed out later the same day. [25] On that same day, the client became angry with the lawyer and told him that he had talked to others, and that the last account rendered by the lawyer to him was too high. The client told the lawyer he was "gouging him" and that he was considering a review of the lawyer's accounts. [26] On February 15, 2002, the lawyer received a letter from the HEU stating that there would be a meeting on February 20, 2002 to address the client's complaints. On February 20, 2002, the client left a voice message for the lawyer apologizing for his earlier conduct, and asked him to put his work on hold until after the now scheduled meeting for February 27, 2002 (exhibit 1, tab 18). [27] On March 5, 2002, the HEU wrote to the client (exhibit 1, tab 19). In that letter, the HEU reviewed the disciplinary matters that were on file. The HEU took the position that "the discipline on your personnel file should be removed" and stated that the employer wanted to maintain the discipline as is. The HEU further stated the grievances would be referred to an industry trouble-shooter. The client, at the request of the lawyer, obtained a copy of his employment file as it now stood. The client's wife faxed these documents to the lawyer on March 19, 2002 (exhibit 1, tab 20). This confirmed to the lawyer that some of the disciplinary incidents had been removed from the client's employment file. [28] No further action was taken by the HEU, and as a result the client instructed the lawyer to file a s.12 complaint pursuant to the Labour Relations Code to the Labour Relations Board, which letter was delivered to the Board April 23, 2002. As a result of filing this complaint, the client obtained an expedited arbitration pursuant to the collective agreement. [29] In late May of 2002, the lawyer received a voice message from the client stating that his disciplinary records had been expunged, and he expressed to the lawyer his gratitude for his work (exhibit 1, tab 23). These consisted of two telephone calls. The latter call made reference to the lawyer's account and the need to sit down with the lawyer to work out payments. [30] As a result of a telephone conversation between the lawyer and the client's wife, the lawyer learned that the client had misunderstood the letter regarding the expedited arbitration. The balance of the client's disciplinary records had not been expunged. On May 27, 2002, the lawyer received a third voice message from the client stating the client and his wife are going to have difficulty paying the balance of the lawyer's account. The client expressed concern about the closure of the hospital at which he was working, which would take place next March. The client further stated he was going to book an appointment with another lawyer whom he named, and have her review the lawyer's account. The client complains of the lawyer charging him for the submission to the Labour Relations Board, claiming there was to be no legal bill for this submission. The client ends the voice message with "she's," referring to the new lawyer, "is gonna check everything on me and make sure if everything's OK, then we can work something out, but I think it's a good idea and Cynthia thinks it's a good idea, that I do get a second opinion before I pay any more money. OK Bill. Anyway, you can call me at home." [31] On June 3, 2002, the client started leaving voice messages advising the lawyer that he had overcharged him. Between June 11 and June 13, 2002, the client left twelve voice messages which were threatening, profane and making reference to his wife and children (exhibit 1, tab 24). The lawyer spoke to the client directly on June 11, 2002. On June 14, 2002, the lawyer wrote a letter to the client terminating the retainer (exhibit 1, tab 24). The lawyer reported the client's behaviour to the police which resulted in a peace bond dated June 30, 2002 prohibiting contact between the client and the lawyer. Subsequent to the peace bond, the client left further voice messages which led to additional charges of breach of the peace bond. [32] In August 2002, the client's employment with his employer was terminated. It was terminated as a result of an incident that occurred in May of 2002, when the client threatened Liz Stoner, a labour relations officer with his employer. DISCUSSION: [33] At this hearing, the client's counsel said that the fee of "$27,000.00" was far too high for a working-class person. The client did not involve the lawyer in assessing whether the client could afford this fee, other than to tell the lawyer that the saving of his long-term job was very important to him. [34] The client's position was that his job was most important to him, and that he felt he would be terminated unless he had his disciplinary employment records expunged. Pursuant to the collective agreement with HEU, 9.03.03 states: Disciplinary matters shall be removed from the employee's file "after the expiration of 18 months from the date it was issued provided there have not been further infractions." The client had gathered a number of infractions, and it was for this reason that he knew that his job was in jeopardy. [35] Counsel for the client argued that the work done by the lawyer had little or no effect on the client's disciplinary record. This matter was first heard on August 18 of 2003, and it adjourned as there was not sufficient time to finish the hearing. Counsel for the client stated that not only would he be calling the client to give evidence, but would also be calling some other person whom he had not yet determined to prove that the efforts of the lawyer had no effect on the disciplinary record of the client. Whoever that person was, that person was not called to give evidence. [36] The client, throughout his evidence at this hearing, stated that he expected to get 100% of the fees that he paid to the lawyer returned to him by HEU. The lawyer denies this, and further, the client, in part, is contradicted by his wife who stated that the lawyer said they would receive a tax deduction. The lawyer did confirm that he told the client and his wife that if they had to go to the stage of the Labour Relations Board, and as part of the settlement, legal fees might be considered. I accept that the client knew he could not recover any fees from HEU. [37] In cross-examination, the client was reminded that he expressed appreciation of the lawyer's work. The client's response was that he was still going to be getting his money back, in reference to HEU. The client, in his evidence, does not seem to want to be accountable for his behaviour. He blamed his wife's miscarriage, the fact that he was stressed-out, he was mad at the lawyer and that the lawyer "had me thrown in jail" (this is in reference to the complaints to the police). He blames the lawyer for turning he and his wife's life "into a mess". He stated that he would not have given the lawyer the money unless he thought he was going to get it back. He acknowledged he was terminated by Providence regarding an incident that occurred in May of 2002 involving his employer, Ms. Stoner, after having had a couple drinks and threatening her. [38] I must consider s.71 of that Act, in the matter before me, particularly, s-ss.2 and 4: (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. (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. [39] Pursuant to s.71(2), I find that the work done on behalf of the client was "reasonably necessary and proper" for purposes of having the client's disciplinary work record expunged. Further, the client, authorized the lawyer's work and directed the lawyer to contact Messrs. Humphries and Lariat for information needed for purposes of the submission to HEU. I find, pursuant to s.71(2), that the work that the lawyer did for the client was to "advance the interests of the client." 71(4)(a): [40] There was nothing novel about the client's case. However, it was difficult, as the lawyer stated that it was one of the worse employment records he had ever seen. The lawyer is highly experienced in this particular area, and was able to interview the people to whom the client referred him and to determine the shortcomings in HEU's internal procedures as they related to the client's case. 71(4)(b): [41] The lawyer has over 30 years experience in the labour and employment area of the law. He has handled a number of cases such as that of the client's. There was no suggestion that the skill of the lawyer was wanting. 71(4)(c): [42] There was no evidence led in this area by either the client or the lawyer. 71(4)(d): [43] There is no quantification of the amount involved in this matter, other than the client believed that it was imperative his job be saved, as the job afforded him an income that he did not think he could earn elsewhere, a pension and seniority since 1987. It was so important to the client, that he and his wife borrowed the money for the lawyer's fees, and told the lawyer that money was no object. The client, during the retainer, did not tell the lawyer that he had borrowed the money, and referred to that fact towards the end of the retainer. 71(4)(e): [44] The lawyer, in his accounts, quantified his time in the areas such as interviews, telephone calls and legal research. There is nothing to suggest the time was not reasonably spent. It is clear that most of the time spent was meeting with witnesses, and the drafting of the submissions and the legal research. 71(4)(f): [45] There was no fee estimate. Both the client and his wife agreed to pay the lawyer $225.00 per hour. At no time did the client take issue with this rate, and given the lawyer's experience in this field, I find the rate is reasonable. 71(4)(g): [46] The matter was significant to the client. It was his future earnings, his pension and the ability to contribute economically to his family. Both the client and his wife advised the lawyer of how important it was, and did so throughout the retainer. 71(4)(h): [47] The client's employment record had disciplinary incidents dating back to 1998. By March 2002, the employment record contained only six disciplinary incidents, five for the year 2001 and one for the year 2002. This, in my opinion, was the result of the efforts made by the lawyer on behalf of the client. There were two occasions where it appeared that the client was going to obtain the backing of HEU, and when nothing happened, he was required to have the lawyer push on with the matter. [48] When the client wanted the balance of his disciplinary employment record expunged, he instructed the lawyer to make a s.12 complaint which resulted in the client receiving an expedited arbitration hearing. [49] In the end, the client lost his job, as a result of his own behaviour. DECISION: [50] I am not prepared to decrease the fees charged by the lawyer to the client. I certify there is due and owing to the lawyer the sum of $4,503.39. [51] The law firm will have their costs of this review. [52] The client gave evidence that he is unemployed and volunteering at the food bank. [53] The client may make an application pursuant to s.73(1)(a) of the Act as follows: (a) be permitted to pay money in instalments on the terms the registrar considers appropriate [54] No application was before me, however, I am prepared to receive a written application pursuant to s.73(1)(a), or the client may make a separate application to a registrar other than me. "Master H. Hyslop as Registrar" July 23, 2004 - Revised Judgment Appendix A attached to the Reasons for Judgment is a summary of the legal fees, disbursements, and taxes billed to the client by the lawyer. This summary was prepared by the client. Some of the figures do not add up correctly nor are all the taxes displayed in Appendix A. These errors were not raised at this hearing. I have corrected Appendix A by referring to actual accounts attached to the client's affidavit sworn September 3, 2002. These minor corrections do not effect my decision. APPENDIX "A" Billing Date: Lawyer's Hours Fees @ $225/hr GST PST Misc Total Payments Date Paid Aug. 24/01 5.8 1,305.00 91.35 91.35 1,487.70 3,000.00 Aug. 23/01 Sept. 17/01 10.7 2,407.50 168.53 168.53 8.87 2,754.05 3,000.00 Sept. 24/01 Sept. 28/01 6.1 1,372.50 96.08 96.08 7.06 1,571.72 1,241.75 Sept. 24/01 Oct. 31/01 6.2 1,395.00 97.65 97.65 11.87 1,603.00 3,000.00 Nov. 5/01 Nov. 30/01 15.3 3,442.50 240.98 240.98 3,924.46 4,099.18 Dec. 14/01 Jan. 22/02 49.4 11,115.00 778.05 778.05 113.1 12,858.79 12,858.78 Jan. 28/02 TOTALS: 93.5 21,038 1,472.64 1,472.64 140.9 24,199.72 27,200.00 May 15/02 17.3 3,892.50 272.48 289.80 45.43 4,503.39 Unpaid