Jack Wang Law Corporation v. Gao

2024 BCCA 338 Jack Wang Law Corporation v. Gao

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Jack Wang Law Corporation v. Gao, 2024 BCCA 338 Date: 20240913 Docket: CA48165 Between: Jack Wang Law Corporation Appellant (Appellant/Solicitor) And Huafeng Gao Respondent (Respondent/Client) Before: The Honourable Madam Justice Horsman The Honourable Justice Skolrood The Honourable Justice Winteringham On appeal from: An order of the Supreme Court of British Columbia, dated February 16, 2022 (Jack Wang Law Corporation v. Gao, 2022 BCSC 250, New Westminster Docket S200290). Oral Reasons for Judgment Counsel for the Appellant: D.E. Gruber The Respondent, appearing in person with agent (via videoconference): H. Gao G. Gao Place and Date of Hearing: Vancouver, British Columbia September 10, 2024 Place and Date of Judgment: Vancouver, British Columbia September 13, 2024 Summary: A lawyer appeals an order from a Supreme Court justice dismissing his appeal of the decision of an associate judge (sitting as a registrar) reducing his account for legal fees. Held: Appeal dismissed. The Supreme Court justice committed no error in his appellate review of the associate judge's decision. The Supreme Court justice concluded that there was evidence capable of supporting the findings of fact. No error in that determination was demonstrated. Reasons for Judgment of the Honourable Justice Winteringham: Overview [1] This is an appeal from an order

from a Supreme Court justice pronounced February 16, 2022, dismissing an appeal from a decision of an associate judge, sitting as a registrar: Jack Wang Law Corporation v. Gao, 2022 BCSC 250 ("Judge's Reasons"). The associate judge's decision involved an assessment of a solicitor's bill rendered by the appellant, a solicitor, to the respondent, his former client. Following an assessment, the associate judge reduced the legal fees billed by the appellant. A Supreme Court judge dismissed the appellant's appeal from the associate judge's decision. [2] In the appeal to this Court, the appellant advances arguments similar to those made to the Supreme Court judge, focusing on several errors said to have been committed by the associate judge at first instance. Circumstances [3] On January 10, 2017, the respondent retained the appellant after the respondent's daughter had been expelled from a private secondary school in Victoria. At the hearing before the associate judge, the appellant testified that the scope of work initially contemplated was: (1) to try to get the school to change its records to indicate that the daughter voluntarily withdrew from her studies, instead of specifying that she was expelled; (2) to seek a refund of pre-paid tuition; and (3) to consider a potential claim for damages to the daughter's reputation. [4] Pursuant to the retainer, the appellant prepared and

sent a demand letter to the daughter's school. He also drafted a notice of civil claim. However, the parties disagreed over how the matter was to proceed. In particular, the parties did not agree about whether a claim for defamation or mental anguish would be pursued and whether the claim should be pursued in the Provincial or Supreme Court. The appellant sent an email to the respondent on December 13, 2017, terminating the retainer on the basis that the respondent had "refused to follow [his] advice" which constituted a " serious breakdown of confidence between solicitor and client". At the same time, the appellant attached his final statement of account (total fees and disbursements of $9,916.55), the legal bill at issue in these proceedings. The legal fees totalled $8,840, which represent 22.1 hours billed by the appellant at $400/hour. [5] In March 2018, the respondent filed an appointment to review the statement of account pursuant to s. 70 of the Legal Profession Act, S.B.C. 1998, c. 9 [LPA]. Associate Judge's Reasons [6] The associate judge presided over the review for two days in October 2019 and delivered his reasons for judgment on the last day of the hearing: Gao v. Jack Wang Law Corporation, 2019 BCSC 2343 ("Reasons of the Associate Judge"). In his reasons, the associate judge offered the following summary of some of the work performed by the appellant and the

nature of the retainer: [29] A result was not obtained while Mr. Wang acted on the matter. He sent a demand letter and received a lengthy response from the School's counsel. It did not provide any compromise or solution. Mr. Wang then drafted a notice of civil claim. He and Mr. Gao argued about whether the case should be pursued in Supreme Court or Provincial Court. Mr. Wang then ended the retainer. [7] The associate judge next described the lawyer's account and the appellant's testimony about the work that he performed. The appellant testified that he wrote off some of his time. [8] The associate judge described the legal framework that governs a registrar's review of a lawyer's bill. He set out s. 71 of the LPA and considered each of the specific circumstances as stipulated in s. 71(4)(a)-(h). The associate judge noted, among other things, that the case "was not very complex" and that the amount involved "was relatively modest": at paras. 17, 20. While the appellant's hourly rate was appropriate, there were " some issues with respect to the time billed"; namely, excessive time billed for work performed: see paras. 23-24. In all the circumstances, the associate judge wrote, " the fees charged for legal services that resulted in only a demand letter and draft pleadings were excessive for the amount involved, the complexity of the matters in issue, and what was achieved": at para.

26. He determined that " the time billed for preparation of the demand letter, preparation of the notice of civil claim, and the amount of time billed in relation to [discussing] whether an action would be commenced in Supreme or Provincial Court was more than would reasonably be expected to be billed ": at para. 32. [9] As such, the associate judge determined that the time billed would be reduced: at para.

32. He made the following deductions to the appellant's account: a) five hours relating to a review of the respondent's documents and preparation of the demand letter (8.2 hours had been billed for these tasks); b) two hours relating to the preparation and review or revision of the draft notice of civil claim (five hours had been billed for these tasks); c) 0.5 hours relating to discussions concerning whether to proceed in Supreme Court or Provincial Court; and d) 0.1 hour of time which the appellant acknowledged was recorded in error. [10] Consequently, the associate judge reduced the fees billed by $3,404.80 (7.6 hours at $400/hour, plus taxes), resulting in a net bill of $6,511.75: at paras. 34, 44. [11] With respect to costs of the registrar's hearing, the associate judge considered s. 72 of the LPA. Section 72(1) dictates, mandatorily and based on the outcome of the bill review, which party is responsible for costs. The subsection is subject only to s. 72(2), which confers on the registrar discretion to order the payment of costs other than as provided in s. 72(1), but only in "special circumstances". [12] As the bill was reduced by more than one-sixth of the total amount, costs were to be awarded to the respondent pursuant to s. 72(1)(a). The appellant urged the associate judge to exercise his discretion to award him his costs of the hearing pursuant to s. 72(2). His argument was premised on a settlement offer he had made in the amount of $6,766.55, only $254.80 more than the amount ultimately found to be due on review. The associate judge did not accede to the argument. He found there were no special circumstances justifying such an order: at para.

38. The respondent's challenge to the bill was warranted and it was " not unreasonable for him to reject [the appellant's] offer to settle": at para.

38. Because there were no "special circumstances" justifying a discretionary order under s. 72(2), s. 72(1) applied and the respondent was entitled to costs. Judge's Reasons [13] The appellant appealed to the Supreme Court and advanced a number of arguments. The judge summarized the appellant's argument, at para. 11 of his reasons, as follows: a) whether the associate judge erred in principle because he only considered the specific circumstances enumerated in s. 71(4)(a)-(h) of the LPA and failed to consider "' all of the circumstances', including other factors " identified by the appellant; b) whether the associate judge misapprehended the evidence and was clearly wrong when he concluded that the case was "not very complex" and regarding the amount involved and the time reasonably spent; c) regarding the costs award, whether the associate judge failed to consider factors relevant to the determination of "special circumstances", including: i. allegations of dishonesty; ii. the appellant's settlement offer of $6,766.55, $254.80 more than the amount found to be due and owing; and iii. misapprehension of the respondent's reasons for rejecting the settlement offer. [14] After setting out the appellant's position, the judge set out the standard of review on an appeal to the Supreme Court from a decision of an associate judge, sitting as a registrar. Correctly, he concluded that he

could interfere with the decision only if it was shown that the registrar had erred in principle or that the decision was clearly wrong, citing Jiwan v. Davis & Company, A Partnership, 2008 BCCA 494, at paras. 14-18. [15] The judge then turned to the appellant's submissions. The judge first considered whether the associate judge erred in principle in considering only the enumerated circumstances set out in s. 71(4) of the LPA, or in failing to consider other relevant circumstances. On this issue, the judge rejected the submission that errors had been made because the associate judge was in a "scramble" to render a decision. He found that there was " nothing to indicate that the [associate judge] did not give himself sufficient time to properly consider the issues": at para.

18. Reading the Reasons of the Associate Judge as a whole, functionally and contextually, the judge was satisfied that the associate judge " considered all of the relevant circumstances, including the specific enumerated factors [in the LPA]": at para.

19. The judge reasoned that the appellant's criticism was " not that the [associate judge] erred in principle" but that he " ought to have weighted the factors differently, or come to different conclusions": at para.

27. The judge concluded that no error in principle had been shown: at para. 27. [16] Next, the chambers judge considered whether the associate judge was "clearly wrong" or had misapprehended the evidence with respect to the complexity of the matter and/or the amount involved. Considering the record and the reasoning of the associate judge, the judge was " not persuaded that the [associate judge] misapprehended evidence, or was clearly wrong in reaching his conclusions as to the relevant factors": at para.

34. While the judge " might have come to a different conclusion " with respect to the quantum of the account allowed, it was not for him to substitute his own views as "[t]he [associate judge's] decision was well within the range of his discretion": at para. 35. [17] Finally, the judge considered whether the associate judge erred by not exercising his discretion to deny the respondent his costs pursuant to s. 72(2). The judge noted that this " was clearly a discretionary decision": at para.

37. He accepted that " it is open to the registrar to find special circumstances when the amount assessed is substantially similar to the lawyer's settlement offer ", but held that declining to find special circumstances on the basis of an offer which " was very close to the amount assessed " is not an error in principle: at para. 38, internal citation omitted. The judge concluded that the appellant had failed to demonstrate an error in principle in failing to find special circumstances: at paras. 37, 41. Grounds of Appeal [18] In his factum, the appellant submits the associate judge made four errors: a) he erred in principle by disregarding relevant factors not enumerated in section 71(4) of the LPA; b) arrived at plainly wrong conclusions about the complexity of the case, the amounts involved, and the time reasonably spent; c) misapprehended the evidence of the time billed; and d) erred in principle by failing to appreciate how in the circumstances it would be manifestly unjust to arbitrarily apply the mandated costs rule. Standard of Review [19] While the appellant's factum makes occasional assertions of error on the part of the chambers judge (see e.g. paras. 37, 45, 46), the central focus of the factum (and during oral argument) were errors said to have been committed by the associate judge. [20] The standard of review to be applied by a Supreme Court judge on an appeal

from a registrar was canvassed by this Court in Jiwan. Justice Bauman (as he then was) stated: [14] The standard of review to be applied by a Supreme Court justice sitting on an appeal from a registrar's decision under the LPA has been recently discussed by this Court in Walker v. Schober, 2008 BCCA 19, 77 B.C.L.R. (4th) 186. [15] At para. 34 Madam Justice Levine stated: [34] The standard of review of an appellate court of a registrar's findings of fact made on a review of a lawyer's account is that of an appeal court generally: the court will not interfere with the findings of fact unless there was some palpable or overriding error which affected the assessment of the facts or, in other words, the findings of fact appear to be clearly wrong: see Pamela S. Boles Law Corp. v. Mathisen (1998), 19 C.P.C. (4th) 78 (S.C.), [1998] B.C.J. No. 976 at paras. 4‑5, where Baker J. said: An appeal from the decision of the Registrar on a review of a bill under the Legal Profession Act is not a new trial, or a rehearing. It is a true appeal, in the sense that the court may not interfere with the Registrar's decision in the absence of an error in principle. See Frost v. Frost, 56 B.C.R. 30, [1941] 3 W.W.R. 273, [1941] 1 D.L.R. 774, and Godbout v. Lisson (1988), 33 B.C.L.R. (2d) 334, (C.A.). Justice Davies of this court elaborated upon this point in his decision in Klein v. Allin, Anderson and Mullen, (20 March 1997) [April 10, 1997], Nanaimo 007758, (S.C.B.C.) [1997] B.C.J. No.

949. In that case he stated: The function of the appellate court is to review the record of the proceedings below and to ascertain whether there has been an error in principle. It can make an order that could have been made by the tribunal from which the appeal is taken, or set aside the decision below, and direct a new hearing. It should not interfere with the findings of fact made below unless it be established that there was some palpable and overriding error which affected the tribunal's assessment of the facts. In short, the rule is that an appellate court will not interfere with the findings of the tribunal of fact unless they appear to be clearly wrong. In particular, the Court of Appeal has emphasized that it is not the role of the court on an appeal from a review of bills for legal services to: ... review and reweigh the evidence and to substitute our view of the evidence and the findings of credibility for that of the Registrar. Morton v. Harper Grey Easton, [1996] B.C.J. No. 1144, (9 May 1996), Vancouver CA019125 (B.C.C.A.) [16] I note that properly stated, the phrase is conjunctive not disjunctive; that is, the standard of review for findings of fact is "palpable and overriding error": Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. [17] Housen articulates, as well, the standard of review on questions of law; it is one of correctness. (I will not review

Housen's treatment of the review of questions of mixed fact and law). [18] Finally, and with particular reference to the registrar's conclusions as to the quantum of the accounts, Mr. Justice Martin said this in re Legal Profession Act, Noble & St. John v. Bromiley (1928), 39 B.C.R. 518, [1928] 2 D.L.R. 605: That the Court will not as a general rule interfere with the exercise of discretion "where [the master] has not acted upon any wrong principle" is so well established as to need little, if any, authority and the rule was recently applied in a striking way by the Court of Appeal in The Lord Strathcona (1926), W.N. 270, wherein the leading cases are cited, and in Societe Anonyme Pecheries Ostendaises v. Merchants Marine Insurance Company, Limited (1928), 44 T.L.R. 270, and so if all the items before us "merely went to quantum" the appeal should be dismissed; but it may be that an error in quantum is so gross as to indicate an error in principle and to come within Lord Justice Vaughan Williams's language in The Denaby and Cadeby Main Collieries (Limited) v. The Yorkshire Miners' Association (1907), 23 T.L.R. 635 ... [19] On further appeal from the decision of a justice on appeal in the Supreme Court, this Court, of course, is limited to reviewing that decision for errors in the exercise of the appellate jurisdiction which I have described; it is a search for error twice

removed from the decision at first instance by the registrar. [Underlining added.] Analysis [21] At the hearing, the appellant stated the primary issue on appeal was whether the registrar (or associate judge) erred in failing to engage in a holistic analysis when assessing the solicitor's account. The appellant submitted that the associate judge fell into error when he constrained his assessment to the statutory factors enumerated in s. 71(4) and by not taking into account other factors. Most importantly, submits the appellant, the associate judge failed to consider that the respondent was a difficult client and this should have factored into his assessment of the solicitor's bill. [22] During oral argument, the appellant contended the judge erred because he failed to answer the legal issue before him; that is, whether the associate judge fell into error because he did not engage in a holistic assessment. [23] This appeal is not a rehearing. Our responsibility is to determine whether the Supreme Court judge erred in principle in dismissing the appeal: Varty & Company v. Camp, 2017 BCCA 369. For the reasons set out below, I am unable to discern any basis on which it can be said that the judge erred in dismissing the appeal. [24] The judge correctly stated the standard of review that he had to apply. He assessed the evidence that was before the associate judge to determine

whether there was evidence capable of supporting his conclusions. He found that there was and correctly declined to interfere with his findings. [25] After stating the standard of review, the judge addressed each of the issues raised by the appellant. [26] First, the judge considered whether the associate judge erred in principle in considering only the enumerated circumstances set out in s. 71(4) or in failing to consider other relevant circumstances. At the hearing, the appellant took the position that the judge incorrectly restated the legal issue to be one of weight versus a failure to consider other relevant circumstances. In my view, the appellant's submission is not borne out by the reasons as a whole. In his concluding paragraph on this issue, the judge stated: [27] The appellant's criticism is not that the [associate judge] erred in principle. It is an argument that the [associate judge] ought to have weighted the factors differently, or come to different conclusions. No error in principle has been shown. [Emphasis added] [27] In my view, the judge did not narrow the inquiry as the appellant suggested. Rather, when the reasons are read as a whole (for e.g., paras. 24-25 of the Judge's Reasons), it is clear that the judge addressed the very factor the appellant submits was absent. For example, the judge stated: [26] [the associate judge] also took into account that

there were disputes and discussions between the client and the lawyer about where the claims ought to be brought. [28] The judge referred to the associate judge's factual findings setting out the dispute between the parties during the course of the retainer. At para. 24 of the Reasons of the Associate Judge, he found, " there is no doubt that there were disputes between [the appellant] and the [respondent] concerning whether the case should be pursued in Supreme Court or Provincial Court". [29] The Reasons of the Associate Judge reflect the submissions that were made to him about the "difficult client" factor. A review of the transcript reveals that this factor gained prominence after the hearing before the associate judge. During submissions before the associate judge, the appellant's counsel did not focus on this factor. The extent of the submission before the associate judge about the "difficult client" factor was captured in this exchange between the associate judge and counsel: MR. MENKES: No, but Mr. -- Mr. Wang has given evidence about that he was having a very difficult time with the -- with the client and -- THE COURT: Well, he gave evidence that there was a meeting between him and Mr. Gao where they had a disagreement about which level of court to pursue it in. Mr. Gao -- MR. WANG: It was -- THE COURT: Mr. Gao wanted to have the matter proceed in Provincial Court and

Mr. Wang didn't. And that that's what led to the breakdown. MR. MENKES: Yes, and these -- these two final discussions are, according to the -- to the records, would be October 20... October 26, 2017 was an hour long conversation. This seems to coincide directly to the e-mail I just described. [30] The associate judge identified the dispute between the appellant and the respondent and then little else was said by the appellant's counsel on this topic. [31] On appeal to the Supreme Court, it is my view that the judge identified the appellant's complaint (that is, whether the associate judge dealt with the non‑enumerated factor that the respondent was a difficult client) and dealt with the issue in accordance with the applicable standard of review. [32] It is not the role of the judge who is performing a review of bills for legal services to " review and reweigh the evidence and to substitute [his] view of the evidence and the findings of credibility for that of the Registrar": Jiwan at para. 15, citing Walker v. Schober, 2008 BCCA 19 at para.

34. Here, the judge was satisfied that the associate judge dealt with the legal issue as it was presented and did not err in principle. In my view, the judge was correct in this finding. [33] The second issue raised by the appellant was whether the associate judge and judge " arrived at plainly wrong conclusions about the complexity of the case, the amounts involved, and the time reasonably spent". Here, the appellant says the judge (1) failed to give weight to the "[respondent's] behaviour increasing the complexity of the case"; and, (2) misapprehended that the financial core of the claim was the return of the tuition, and as such " neglected to give adequate weight to the other remedies the [respondent] sought". In the Judge's Reasons, the judge examined the associate judge's determination about the complexity of the case, the amounts involved, and the time reasonably spent. The judge highlighted aspects of the evidentiary record that supported the factual findings made by the associate judge on each of these points. After highlighting aspects of the evidentiary record, the judge concluded that he could not say that the " [associate judge] was wrong in characterizing the work as 'not very complex'", nor could he conclude that the associate judge was wrong about the "amount involved": at paras. 31-32. Ultimately, the judge concluded that the associate judge's decision was well

within the range of his discretion. In my view, the evidence referred to by the judge was capable of supporting the findings made by the associate judge. There is no basis on which the judge could properly have interfered with those findings. Similarly, there is no basis on which this Court can interfere with those findings. [34] The final issue raised by the appellant relates to costs. On this point, the appellant contends the associate judge erred by not exercising his discretion to deny the client's costs pursuant to s. 72(2) of the LPA. The appellant submitted that when a bill is reduced by more than one-sixth, as it was here, s. 72 of the LPA requires the solicitor to pay the costs of the review " unless special circumstances exist which would make it manifestly unfair or unjust to arbitrarily apply this rule". [35] The appellant submits that the "[associate judge] exercised his discretion on the erroneous assumption that the Client rejected the settlement offer because he wanted to challenge a number of the Lawyer's billings, when in fact the Client refused the settlement offer because it required him not to disparage the Lawyer". The appellant articulated this ground of appeal by stating, "[t]he [associate judge] erred in principle by failing to appreciate how in the circumstances it would be manifestly unjust to arbitrarily apply the mandated costs rule". [36] In his

factum, the appellant does not assert an error with respect to the judge's handling of this issue. During oral argument, the appellant advanced the submission that the judge applied the incorrect standard of review for failing to accede to the appellant's submission, stating that the judge committed the same error as the associate judge. As I understand the submission, the appellant asserts that the judge did not properly consider the issue of special circumstances. [37] On this point, the judge set out s. 72 of the LPA in full. The judge stated, correctly in my view, that this was a discretionary decision and "[i]t cannot be said that the [associate judge] erred in principle in failing to find special circumstances": at para.

37. The judge referred to Greig, Skagen & Wilson v. Seddon, 2001 BCSC 1206, at para. 37, acknowledging that there is no principle that the registrar must find special circumstances when the lawyer's settlement offer is substantially similar to the amount assessed. The judge stated that it was not an error in principle, noting "[t]he [associate judge] was alive to the argument that the offer was very close to the amount assessed, and declined to find special circumstances on that basis": at para. 38. [38] The appellant submitted that the judge was incorrect in the manner he dealt with allegations of dishonesty and deception made against the lawyer in the course of the hearing and that these allegations ought to have been found to be special circumstances. On this point, the judge was correct when he concluded that the associate judge did not err in principle when he did " not [mention] a possible discretionary factor that was not argued": at para.

39. Relatedly, the judge dealt with the appellant's submission that the associate judge failed to address the "non‑disparagement agreement". The judge concluded that these were not matters he was bound to consider. [39] The judge turned his mind to the question of whether the associate judge erred by not exercising his discretion in the manner sought by the appellant. The judge was satisfied that the associate judge applied the correct test as set out in s. 72 of the LPA and considered the discretionary nature of the decision at issue. In my view, the judge was correct in finding that the associate judge demonstrated no error in the exercise of his discretion about costs and special circumstances. I would dismiss this ground of appeal. Conclusion [40] In my view, the appellant substantially seeks to reargue the underlying merits of the case. In some instances, the appellant raises issues that were not raised before the associate judge. This is not a rehearing. As stated by Justice Harris in Varty & Company (at para. 21), "[o]ur responsibility is to determine whether the Supreme Court judge erred in principle in dismissing the appeal". Like Justice Harris, "I am unable to discern any basis on which it can be said that the judge did so err": at para.

21. In dismissing the appeal, the judge applied the correct standard of review for each of the issues raised by the appellant. In large part, this appeal has turned into a " search for error twice removed from the decision at first instance by the registrar": Jiwan at para. 19. [41] In the result, I would dismiss the appeal. [42] HORSMAN J.A.: I agree. [43] SKOLROOD J.A.: I agree. [44] HORSMAN J.A.: The appeal is dismissed. "The Honourable Justice Winteringham"