Heppner v. Kaine

2011 BCSC 646 Heppner v. Kaine

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Heppner v. Kaine, 2011 BCSC 646 Date: 20110517 Docket: S61969 Registry: Nanaimo Between: Holly Annette Heppner Client And G. Brenda Kaine Solicitor Before: Master Baker As Registrar Reasons for Judgment Client appearing in person Counsel for solicitor: G. Brenda Kaine Place and Date of Hearing: Nanaimo, B.C. April 18, 2011 Place and Date of Judgment: Nanaimo, B.C. May 17, 2011

ISSUE [1] These are proceedings under the Legal Profession Act[1] for the review of Ms. Kaine's accounts to Ms. Heppner. The proceedings are brought by Ms. Heppner. [2] At a pre-hearing conference in Nanaimo March 2, Ms. Kaine objected to the review of all but the last two of 13 accounts, arguing that review of the first 11 accounts is barred by s. 70(1) of the Act: (1) Subject to subsection (11), the person charged or a person who has agreed to indemnify that person may obtain an appointment to have a bill reviewed before (a) 12 months after the bill was delivered under section 69, or (b) 3 months after the bill was paid, whichever occurs first. More specifically, Ms. Kaine submits that all of these 11 accounts were fully paid by Ms. Heppner at least three months before she took out her appointment for review. [3] Whether these proceedings concerned all of the accounts (as Ms. Heppner wishes) or only the last two (as Ms. Kaine argues) is an important point, as it clearly affects the time estimate and evidence to be presented. I considered the possible application of s. 70(1) to be a preliminary issue to be decided, then, and adjourned the matter to a telephone hearing April 18th so that each party could consider the law, prepare affidavits, and make submissions.

BACKGROUND [4] Ms. Kaine's services to Ms. Heppner concerned matrimonial problems with Ms. Heppner's ex-partner. By the time Ms. Heppner retained Ms. Kaine in February 2007 the court proceedings were approximately four years old and Ms. Kaine was Ms. Heppner's third counsel. Matters were resolved by a consent order reached with the assistance of Madam Justice Fenlon in Nanaimo, November 20th, 2008. Ms. Kaine delivered six accounts for services up to and including that consent order. [5] Matters did not end there, unfortunately, and further issues of child access and support meant further court proceedings. Ms. Kaine continued to act on behalf of Ms. Heppner on those matters and ultimately delivered seven more accounts for services. The last account was dated October 20, 2010. PARTIES' POSITIONS [6] Ms. Kaine initiated this discussion by objecting to the review of all but the last two accounts due, she argued, to the application of s. 70(1). She argued that the preceding accounts had all been paid more than three months before Ms. Heppner took out her appointment. She submitted that those previous accounts related to one retainer and that the work required by that retainer (i.e. the finalizing of matrimonial legal issues with Ms. Heppner's partner) was completed. She argued that a new retainer arose thereafter. [7] Ms. Heppner argued that all services by Ms. Kaine related to the

same, albeit long, drawn-out, and repetitive issue. More specifically she pointed out that all legal proceedings, both before and after the consent order before Fenlon J. on November 20th, 2008 were brought under the same court file number, and that Ms. Kaine, throughout her entire services to Ms. Heppner, only opened one solicitor's office file. She also said[2] that she, as a client, had no illusions whatever about the finality of proceedings before Fenlon J. She says she told Ms. Kaine "that very day" that she (and, by implication, Ms. Kaine) had not heard the last of Ms. Heppner's partner. She said that he would never accept the result, even though he had given his consent, and that there were sure to be (as there were) further arguments, dispute, and court proceedings. In this, of course, she turned out to be correct.

ANALYSIS [8] There is no dispute that all but the last two accounts have been paid by Ms. Heppner. The issue is: do all of these accounts comprise interim accounts for an on-going retainer, or did Ms. Kaine's retainer end with the consent order of November 20th, 2008 which, on its face, resolved the issues between Ms. Heppner and her partner? [9] This matter was considered by Southin J. in Ladner Downs v. Crowley[3], and Ms. Kaine submits Doig v. Davidson Muir[4] and Smiley Hibbard MacAulay v. O'Neill[5] as authorities bearing on the point. Southin J. in Crowley, following an exhaustive legal history of the process and law concerning review of solicitor/client accounts, concluded that the payment in full of interim or periodic accounts did not prevent a client from applying for review of those accounts, if the facts established that the accounts pertained, actually, to one retainer, sometimes referred to as "the single retainer" or "entire contract principle". That retainer, in other words, was what the lawyer was instructed and asked to do or accomplish. At p. 364 she said By a specific retainer, I mean, for instance, a retainer to act in defending or prosecuting an action. Such a retainer should generally be construed as terminating, if the matter is not settled, upon the entry of judgment and taxation of costs at the trial level. With respect, she could not have been

clearer, and Ms. Kaine's argument is that the settlement of matters before Fenlon J. would come within this definition. [10] Ms. Kaine pointed out, as well, that Crowley was decided before the enactment of s. 70(1) or its successor sections, and that this was an important aspect of the court of appeal's reasoning in Doig. I disagree. Again, the reasons in that case were given for the court by Southin J.A. In Doig counsel had referred her to her reasons in Crowley and remarked on the change in the legislation following. Southin J.A. rejected that point. Counsel in Doig had argued that The Legal Profession Act (formerly the Barristers & Solicitors Act) specifically allows for the taxation of paid accounts providing the review is undertaken within the 3 month limitation period prescribed in the legislation, and therefore the Ladner Downs case no longer applies. to which Southin J.A. replied[6] ...although it is so that when Ladner Downs v. Crowley was decided there was no express provision for the taxation of a paid bill, that absence does not mean such a bill could not, under any circumstances, be taxed under the legislation then in force. That issue was not then before me. The substance of this alleged error and error [3] is dealt with hereafter. She effectively emphasized this, in the context of "special circumstances" discussions, at par. 71: If counsel for the appellant was

advancing the proposition that the 1987 enactment was intended to remedy a "mischief" thought to have been created by my judgment in Ladner Downs v. Crowley, she is in error. That judgment was delivered on 24th June, 1987. The Act of 1987 received Royal Assent on 26th June, 1987. There is no connection between the judgment and the revision. Doig, therefore, did not change or limit the "single retainer" or "entire contract principle" as they apply to the review of solicitors' accounts and as established by Crowley. What did happen, of course, is that the amended legislation provided a chronology for the process and limitations that were to apply, assuming that the analysis required by Crowley had been done. [11] The issue in the Smiley case is a little closer to this case, in that the client argued that all work (in an employment/labour relations issue) had been done in a single retainer, whereas counsel argued that there were actually two retainers. Crowley was also considered by the court and it was acknowledged that if the services were under one retainer then the client was within the time limitations imposed by the Act. If, on the other hand, the solicitors were correct then the client was out of time and could only proceed if the court granted an extension after concluding that 'special circumstances' applied. [12] What is particularly interesting in Smiley is the emphasis

the court placed on evidence establishing the factual context for the argument, as well as the clear onus on the solicitors, in the event of conflicting versions between client and solicitor, to offer "...clearer evidence than the bare assertion of the Solicitor..."[7]. [13] Do the facts of this case confirm Ms. Kaine's view? I do not think so. There is no question whatsoever that, as she said, in one sense a "final" result was reached before Fenlon J. on November 20th 2008. But two aspects of that order and events following it are striking. First, the order clearly establishes a stepped, progressive process of access by which Ms. Heppner's partner would be very carefully and gradually re-introduced, as it were, into the life of their son. The process began with four counselling sessions, three of which had to be completed before Ms. Heppner's partner even saw their son (the fourth was to be a session that included both the partner and the son). There were then 10 supervised access visits, followed by eight unsupervised visits on successive Sundays and, finally, overnight access on alternate weekends thereafter. With respect, anyone considering that issue (i.e. the relationship between Ms. Heppner's partner and their son) and the apparently very contentious history of the separation and litigation would expect that there would be further court applications by one or both of the

parties and, inferentially, that Ms. Kaine's further assistance would be required. [14] Second, the record of Ms. Kaine's time entries proves that Ms. Heppner's fears (par. 7 above) were borne out and that, indeed, very soon after Fenlon J.'s order Ms. Kaine was back at work on the file. One would expect, of course, some time entries corroborating work soon after the order: drafting, explaining, entering the order and the like. But the statements of account show that, except for the usual Christmas lull in December 2008, Ms. Kaine's work seems to have continued unabated. The photocopied exhibits are hard to read, but her April 2, 2009 statement of account shows the first time entry in 2009 (not charged, to be clear) was on January 5th or 7th. From December 10, 2008 to March 30, 2009 there are 53 time entries recorded. Subsequent accounts confirm this ongoing pattern. Whatever the formality of the order of Fenlon J. may indicate, the reality of the situation and the relationship between Ms. Heppner and her partner is that the order was, sadly, just one more milestone on a very long road of contention and legal processes. [15] None of this either contradicts or offends, in my view, the observations of Southin J. (par. 9 above). Thankfully, most legal disputes are ended " upon the entry of judgment and taxation of costs at the trial level". But even Southin J.'s view contained the

qualifier that is the situation as " generally construed". Family law cases in general and this one in particular offer the exception that proves the rule. Two aspects of them, possibly, explain why that is the case. Firstly and famously family law cases often involve a level of personal antagonism that is simply not dampened by a trial result. Often the result satisfies neither party or, if there is a 'winner', the other party's sense of grievance is given even more fuel. [16] Secondly, the enduring relationship required of disputing parents cannot, usually, be severed by a trial result. Whatever the court's decision they continue to be the parents of their children and, as such, must find some basis for communication and interaction. It's not a surprise that some couples find it much harder to find that basis than do others, and that continuous work after a trial may be required. This is such a case. [17] I conclude therefore that the order of Fenlon J. November 20th 2008 did not mark the termination of Ms. Kaine's retainer but that all accounts submitted by Ms. Heppner with her appointment are periodic accounts of a continuous retainer. The final account was October 20th, 2010 and her appointment was taken out within the time limits imposed by s. 70(1) of the Act, so that all of the accounts may be reviewed. [18] This all arose as a result of a preliminary issue at a

pre-hearing conference. The parties now must re-schedule the pre-hearing conference to discuss, among other things, estimated time estimates, proposed witnesses (if any) and any further disclosure that is required. [19] In the circumstances costs of this aspect of the proceedings will be in the cause. "Master D. Baker" [1] S.B.C. 1998 c. 9 [2] Heppner affidavit #1, par. 11 [3] (1987) 14 B.C.L.R. (2d) 357 [4] (1998) 48 B.C.L.R. (3d) 53 [5] 2003 BCSC 686 [6] at par. 62 [7] at par. 25