Jenkins Marzban Logan LLP v. Grewal

2018 BCSC 429 Jenkins Marzban Logan LLP v. Grewal

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Jenkins Marzban Logan LLP v. Grewal, 2018 BCSC 429 Date: 20180319 Docket: S177697 Registry: Vancouver Between: Jenkins Marzban Logan LLP Law Firm And Zora Singh Grewal and Harinderpal Kaur Grewal Clients Before: Master McDiarmid Reasons for Judgment on Legal Profession Act Fee Review Counsel for the Law Firm: G. Holeksa Appearing on behalf of the Clients: R. Grewal (Agent) October 16,2017 S.S. Bahia (Interpreter) October 17, 2017 K.l Bains (Interpreter) October 18 & 19, 2017 K.J. Learn January 9, 10 and 11, 2018 Place and Date of Hearing: Vancouver, B.C. October 16-19, 2017, November 9, and January 9, 10 and 11, 2018 Place and Date of Judgment: Vancouver, B.C. March 19, 2018 [1] This is a review conducted pursuant to Part 8 of the Legal Profession Act, S.B.C. 1998, c. 9 [LPA] for a review of five bills rendered by the lawyer to the clients. [2] In utilizing the language of the LPA "lawyer" refers to the entity issuing the bill. As can be seen, it is a limited liability partnership, called a "law firm" in the style of cause. The lawyer primarily responsible for the legal work particularized in the bills rendered to the clients is Mr. Holeksa. In these reasons I will refer to Jenkins Marzban Logan LLP as the "law firm", which is the "lawyer" as defined by the LPA; I will refer to Mr. Holeksa by name. [3] There are five bills

which are the subject of this review. There is one bill for each of five files opened by the law firm relating to Mr. Holeksa's representation of the clients. All of the matters are somewhat interrelated, in the sense that the background to all of the matters concerns the business relationships between and among the Grewal family. [4] In giving these reasons, I will adopt the approach of Madam Justice Arnold-Bailey when she wrote in the oral reasons for judgment she rendered May 2, 2008, paragraph 3 identifying the siblings as Harminder Grewal, Zora Singh Grewal (one of the clients) and Harbans Singh Grewal and then wrote: "I refer to the three Grewal brothers as Harminder, Zora and Harbans respectively as I have indicated previously, not out of any form of disrespect, but only has an officiant manner to refer to each brother". [5] In a similar respectful vein, I will refer to the other client, Harinderpal Kaur Grewal, as Harinderpal. [6] The duration of the dispute and the switching of loyalties is somewhat reminiscent of the Thirty Years War. In the aforementioned oral reasons for judgment on May 2, 2008 in para. 2 Madam Justice Arnold-Bailey writes "this matter has a somewhat protracted history before the court". Nine and a half years later, that protracted history continues. [7] The matter came on for hearing in a pre-hearing conference before Master Harper. She made

several procedural Orders. At that pre-hearing conference Zora and Harinderpal were in attendance. [8] It is common ground from the materials and evidence provided to me, that Zora speaks and understands Punjabi, but does not speak and does not understand English. As well, he is functionally illiterate in both Punjabi and English. [9] In the written submissions provided by Mr. Holeksa, he writes: 11. Zora was one of eight children. Of the eight children, six or seven attended school and received an education. Both Harbans and Harminder received an education. Zora did not attend school. During the years that Zora should have attended school he worked with his father on the family farm in India to support the family. As a result, Zora cannot read or write in any language. Zora cannot speak English except for some basic phrases. Both Harbans and Harminder can read and write in both Punjabi and English. Harbans received post-secondary training as an electrician. Harminder received post-secondary training as a medical technologist.

12. From 1985 to 1987, first Harminder, then Zora, and finally Harbans immigrated to Canada. Harminder was married and had a house. Zora and Harbans lived with Harminder, first sharing the entire house, and as Harminder had children moving to the basement. In or about 1988 Harbans married Jasbir, and she moved in with them. [10] At the pre-hearing conference, Harbans attended and assisted Zora in interpretation. I have reviewed the notes of the pre-hearing conference. There was no suggestion that the hearing would not proceed as scheduled for five days commencing October 16, 2017. There was no request made at that time for an adjournment. Specific orders were made regarding disclosure. [11] At the commencement of the hearing, Ramnik Grewal attended on behalf of the clients. She is the clients' daughter and goes by the name "Reena", which is how I will refer to her in these reasons. She is a student. She requested an adjournment at the commencement of the hearing. She passed up to me a series of emails between Mr. Holeksa and her. The first email was sent by Reena to Mr. Holeksa on October 10, 2017 at 3:24 p.m. She writes "we got your material, but we will not be able to provide you our material until Oct. 14 or 15, we would like you to please postpone the court date to another day because we will not be prepared". [12] This was part of an email "string", which commenced with an

email from Mr. Holeksa to the clients confirming that he delivered to their house the eight binders containing the documents intended to be relied upon at the hearing together with an index. The email requested that the eight binders be brought to the hearing as they were for use at the hearing. The email string has been marked as exhibit 12. [13] Mr. Holeksa pointed out Master Harper's direction that it was the responsibility of the clients to have a certified court interpreter at the hearing. Part of the email package handed up by Reena was an email from Mr. Holeksa dated the following day, October 11, 2017, where he provided a name of an additional interpreter able to interpret Punjabi to English. [14] In the same package of materials is an email back from Mr. Holeksa stating that he did not agree to adjourning the hearing. He reiterated Master Harper's Order that documents be provided to him by October 12, 2017. [15] On October 11, 2017, in an email at 9:26 a.m., Reena again requested an adjournment. She confirmed that she was attending school and had a busy schedule and could only review documents on weekends. Her speaking notes were provided to me; they have been marked exhibit 14. The materials provided by Reena confirm that eight binders were delivered by the law firm on October 10, 2011; a Tuesday. [16] In the October 11, 2017 email, Reena reiterated the request for a

postponement of the court date, and then made requests in seven numbered paragraphs for additional information. Requests 1, 2, and 7 deal with pre-billing, time and fees billed. Those documents are included in the eight binders. Requests 3 and 4 relate to filed and unfiled Affidavits. The Affidavits are included in the binders and/or have been entered as exhibits. Request number 5 was for names and telephone numbers of all the interpreters utilized by Mr. Holeksa. Request number 6 was for all the notes made in meetings and phone calls. I considered these requests. I was satisfied I could conduct the fee review fairly. [17] At the commencement of the hearing Harbans was in attendance. I determined from submissions that there was a possibility that he would be a witness, and accordingly directed that he be excluded. [18] In initial submissions subsequently confirmed by evidence, it became apparent to me that the Grewals were working together to free up funds held in trust or otherwise available for payment of the substantial accounts rendered to both the clients and Harminder. [19] After considering submissions made by Reena on behalf of her parents, I determined that it was inappropriate to adjourn the matter. I explained to Reena that I would view the bills keeping in mind the criteria set out in the LPA. I provided her with a copy of the relevant sections in particular s. 71

of the LPA, refused the application for adjournment and commenced the hearing. [20] Both of the clients were in attendance on October 16 and 17, 2017, assisted by an interpreter, Mr. Bahia, on October 17, 2017. Although the record of proceedings in chambers notes that only Zora was in attendance that day, my recollection was that both of the clients were in attendance the second day of the review. [21] On October 18, 2017, the joint Affidavit of the clients filed in Vancouver Registry S177593 on August 15, 2017 was presented for consideration. That document was initially marked exhibit A for identification, and has now been entered in these proceedings as exhibit 13. When it was initially presented, I directed that both clients be present for cross-examination. However, Harinderpal was not present the next day. She did not participate further in the proceedings until she attended with counsel on January 9, 10, and 11, 2018. [22] On October 19, 2017, I adjourned to Thursday, November 9, 2017 for an additional day, giving direction to Zora through the interpreter, Mr. Bains, with respect to notice required to be given if evidence was going to be led by the clients that day. [23] On that day, neither Zora nor Harinderpal attended. Reena and Harbans Grewal attended. There was a discussion with respect to Zora having medical issues. The hearing of this review was adjourned to

recommence on January 9, 2018, peremptory on the clients. I gave some further directions at that time. [24] On October 19, 2017, the review was adjourned until Tuesday, January 9, 2018, with directions. This adjournment was done to accommodate the clients who advised that they intended to retain counsel and call evidence. I gave certain directions which generally were followed to prevent surprise to the law firm. [25] For the last three days of the hearing, the clients were represented by Mr. Learn. He cross-examined Mr. MacAdams and Mr. Holeksa, and then led evidence from the clients and the clients' three children, Reena, Sandeep Grewal and Derek Grewal. The clients' daughters, Reena and Sandeep are both adults; their son, Derek is 17 years of age. [26] All three children testified before the clients testified. The clients were present during the testimony of their children, which was translated for them by Mr. Bahia, the interpreter who was present the first day of the hearing, and who was present throughout the January hearing dates. [27] As set out previously in these Reasons for Judgment, there had been a pre-hearing conference at which time there was no suggestion that the hearing would not proceed as scheduled. Mr. Holeksa, on behalf of the law firm had made submissions on the fourth day of the hearing, before cross-examination of the law firm's witnesses had occurred

and before any evidence had been led by the clients. [28] Accordingly, I gave directions for the timing of submissions by the clients and then reply submissions by the law firm. Applicable Legal Principles [29] The starting point for assessment is s. 71 of the LPA. That section sets out that the registrar must allow fees, charges and disbursements for services reasonably necessary and proper to conduct the proceeding or business to which they relate. The registrar may allow fees, charges and disbursements even if unnecessary for the proper conduct of the proceeding or business to which they relate if they were reasonably intended by the lawyer to advance the interests of the client at the time the services were provided. [30] Subsection 71(4) is a codification of the seminal case of Yule v. Saskatoon (City), [1955] 1 D.L.R. (2d) 540, 17 W.W.R. 296, a decision of the Saskatchewan Court of Appeal. Subsection 4 reads as follows: (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. [31] Counsel for the clients have referred me to Alton & Associates v. Epp, 45 C.P.C. (4th) 315, a decision of Master Bishop in Kelowna Action No. 42982. Paragraphs 2-4 and 45-49 of that decision are particularly applicable to this assessment: [2] In almost every review, whether brought by the solicitor or client, the first words of evidence given by the client are inevitably: If I'd had known how much this was going to cost, I'd have never started it. I'd have sat down with my wife, husband, or the other party (as the case may be) and settled it. [3] That is so, as the economic or other gain pales in comparison to the legal expenses. [4] The important issue to be determined is the effect, if any, of a solicitor in not advising his client in a timely manner, or as here, at all, of the economic consequences of the litigation to the client, on the account rendered by the solicitors. [45] These reasons are not to be taken as setting down a strict rule that in every case, regardless of the circumstances, there is a positive duty on the lawyer to set out the expected or typical fees and disbursements a client should be prepared to pay during the course of his retainer. While that course of action is indeed prudent,

particularly where the clients are unsophisticated litigants, the determination as to whether (as here) there is a positive duty to take that step, or not, must be determined on all of the facts of the case at hand. [46] However, a prudent lawyer should, in most cases, meet with the client and indicate a range of fees a client should expect to pay. [47] In litigation, for example, from the lawyer's viewpoint, the conversation might include the following: 1) To commence the proceedings, you may expect a charge of $a; 2) To complete interim motions, you can expect to pay $b for each court appearance; 3) To complete examination for discoveries and discovery of documents, $c; 4) If the matter does not settle, $d per day for preparation for trial; 5) $e for each day of attendance at trial; 6) Those fees do not include disbursements; 7) All amounts will vary from case to case. These are only examples of the amounts of fees more or less that you can expect to pay for my services. [48] If such discussions were held or the information otherwise given to the client along with the expected result, the client could then make an informed decision as to whether or not to proceed with the retainer or how far he/she was prepared to go, given the results that would hopefully be achieved and other options available. [49] It must always be remembered that the onus is on the lawyer to prove the

retainer and justify the fees and disbursements. Failing to discuss the cost/benefit to the client of the retainer may, in certain circumstances, produce a result in which the accounts are substantially reduced. [32] With respect to the retainer agreement, I am guided by the principles laid out by our Court of Appeal in Commonwealth Investors Syndicate Ltd. v. Laxton (1991), 74 D.L.R. (4th) 260. The Court deals with a contract concerning fees which, as stated in the decision, is a contract with the lawyer's own client. That case was dealing with the predecessor statute to the LPA, the Barristers and Solicitors Act, R.S.B.C. 1979, c.

26. Section 99 of that statute reads as follows: 99(1) Notwithstanding any law or usage to the contrary, a member of the society may contract, in writing, with a person as to the remuneration to be paid him for services rendered or to be rendered to the person in lieu of or in addition to the costs which are allowed to the member. 99(2) The person who has so contracted with a member of the society, or the representative of the person, may apply by motion or petition to the Supreme Court. If the court does not consider the contract fair and reasonable, it may either modify the contract or order the contract to be cancelled, and the costs, fees, charges and disbursements for the business done to be taxed in the same manner as if no contract had been made. [33] That section has been changed in the current LPA. Section 68 reads as follows: 68 (1)This section does not apply to agreements entered into before June 1, 1988. (2) A person who has entered into an agreement with a lawyer or law firm may apply to the registrar to have the agreement examined. (3) An application under subsection (2) may only be made within 3 months after (a) the agreement was made, or (b) the termination of the solicitor client relationship. (4) Subject to subsection (3), a person may make an application under subsection (2) even if the person has made payment under the agreement. (5) On an application under

subsection (2), the registrar must confirm the agreement unless the registrar considers that the agreement is unfair or unreasonable under the circumstances existing at the time the agreement was entered into. (6) If the registrar considers that the agreement is unfair or unreasonable under the circumstances existing at the time the agreement was entered into, the registrar may modify or cancel the agreement. (7) If an agreement is cancelled under subsection (6), a registrar (a) may require the lawyer to prepare a bill for review, and (b) must review the fees, charges and disbursements for the services provided as though there were no agreement. (8) A party may appeal a decision of the registrar under subsection (5) or (6) to the court. (9) The procedure under the Supreme Court Civil Rules for the assessment of costs, review of bills and examination of agreements applies to the examination of an agreement. [34] Subsection 9 references the procedure under the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil Rules] for the assessment of costs. Subrule 22-4(2) of the Civil Rules is as follows: (2)The court may extend or shorten any period of time provided for in these Supreme Court Civil Rules or in an order of the court, even though the application for the extension or the order granting the extension is made after the period of time has expired. [35] In Commonwealth

Investors Syndicate, Justices Locke, Toy and Hinds jointly wrote the decision. That was a case where the client had applied to cancel a contingency fee agreement. There was a trial "on a preliminary issue as to whether the contract was 'fair', i.e. whether it had been fairly obtained in all the circumstances." [36] After ten days of evidence was heard, the trial judge heard arguments and delivered reasons finding the contract unfair. The lawyer appealed. In allowing the appeal, the Court set out some parameters to determine whether the contract was fair and reasonable within the meaning of s. 99(2) of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26. [37] In the decision, the Court wrote the following: It is to be observed that in Re Stuart Lord Esher said that the factors relating to "fair" are not to be introduced again in the area of "reasonable'. This statement is of the greatest importance in clarifying what a court should do. In our opinion s. 99 contemplates a two-step enquiry. The first step investigates the mode of obtaining the contract and whether the client understood and appreciated its contents. The enquiry would include whether, at the time the contract was entered into, there was any lack of capacity on the part of the client, whether there was any undue influence exercised or unfair advantage taken by the solicitor, whether any mistake was made, or

whether any other flaw arose in the formation of the contract which would indicate that the client did not understand and appreciate its content. The onus would be upon the solicitor to satisfy the foregoing requirements of the enquiry. Should any of those be found, the contract would not be "fair" in the sense of the statute and Re Stuart. The court would declare the contract cancelled, or would modify it, or the bill could be remitted for taxation. The second enquiry, assuming the contract is found to be fair" involves an investigation of the "reasonableness" of the contract. On this investigation, extending from the time of the making of the contract until its termination or its completion, all of the ordinary factors which are involved in the determination of the amount a lawyer may charge a client are to be considered, and each factor may be the subject of professional evidence to assist the judge in determining the reasonableness of the fee in the particular circumstances. [38] The Court dealt as well with the issue of independent legal advice given to the client. [39] In that case, the client was described as: a man of wide business experience who had seen many aspects of commercial life, as director of many companies, property developer, chartered accountant and the office manager of a large Vancouver law firm, and knew all about lawyers and their billing habits. [40] I

was also assisted by the Reasons for Judgment of Newbury J.A. and K.J. Smith J.A., writing for the majority of the Court of Appeal in Nathanson, Schachter v. Inmet, 2009 BCCA 385. [41] In Nathanson, a decision of a five-judge panel of our Court of Appeal, the issue was whether the law firm was entitled to bill a final fee of $10 million in circumstances where the client had received one of the largest civil damage awards in the history of this province, following a 67-day trial. [42] The law firm had billed and the client had paid $5,248.834.94 over the course of the retainer. That included a $1 million lump sum paid by the client at the law firm's request to reflect the extraordinarily successful result achieved. The registrar was of the view that the $5,248,834.94 reflected a substantial, even generous premium over the straight-time value of the law firm's services and that the law firm had been well and fairly paid for its efforts. In Nathanson, Newbury J.A. and K.J. Smith J.A. write: [1] This appeal is taken from a registrar's review, pursuant to s. 71 of the Legal Profession Act, S.B.C. 1998, c. 9, of a bill for legal fees of $10 million charged by the appellant law firm, Nathanson, Schachter & Thompson LLP (the "Firm") for its services to Inmet Mining Corporation (the "Client" or "Inmet") over some six years. These services included the successful prosecution of a damage

claim and the defence of a very strong counterclaim in a 67-day trial in Supreme Court (see Inmet Mining Corp. v. Homestake Canada Inc., 2002 BCSC 61, 99 B.C.L.R. (3d) 93), and the successful defence of an appeal (see 2003 BCCA 610, 24 B.C.L.R. (4th) 1). At the end of the process, Inmet received, in full, one of the largest civil damage awards in the history of this province. The registrar certified the fees at $5,248,834.94, being the amount actually paid over the course of the retainer, including a $1,000,000 lump sum paid by Inmet at the Firm's request to reflect the "extraordinarily successful result" it had achieved. The registrar was of the view that the $5,248,834.94 reflected a "substantial, even generous, premium over the straight-time value of [the Firm's] services" and that the Firm had been "well, fully and fairly paid" for its efforts. [43] An appeal to the Supreme Court was dismissed, as was the appeal to the Court of Appeal. [44] As opposed to the case before me, where the clients did not have resources to pay on an ongoing basis and did not pay any fees on an ongoing basis, the clent in Nathanson had paid interim bills as they were rendered. [45] The Court of Appeal discussed what a fair fee would be, considered s. 71 of the LPA, and commented on bonus billing. [46] In that case, Newbury J.A. and K.J. Smith J.A. commented on Arctic Installations (Victoria) Ltd.

v. Campney & Murphy (1994), 86 B.C.L.R. (2d) 226. They wrote: [8] This court dismissed the law firm's appeal, all three justices delivering judgments concurring in the result. The reasons quoted most often are those of Southin J.A., who framed the issues before the Court as follows: ... Can a solicitor retain his right to have taxation on the footing of an entire contract and a single bill when he has sent the client a series of accounts which, on their face, are conclusive for the services rendered during the time period shown on the account? Can he retain to himself, unbeknownst to the client, a right, if there is a famous victory, to send a bill "To succeeding against all the odds, $65,000.00". [At para. 50; emphasis added.] Her Ladyship answered this question in the negative, grounding her conclusion in the solicitor's obligation of utmost good faith. (Para.

54) She repeated a passage from her decision as a trial judge in Ladner Downs v. Crowley (1987) 14 B.C.L.R. (2d) 357 at 377-8, where she had described that obligation as follows: The relationship is also one of utmost good faith (Tyrrel v. Bank of London (1862), 10 H.L. Cas. 26 at 44, 11 E.R. 934 at 941, per Lord Westbury): "My Lords, there is no relation known to society, of the duties of which it is more incumbent upon a court of justice strictly to require a faithful and honourable observance, than the relation between solicitor and client . . . a solicitor shall not, in any way whatever, in respect of the subject of any transactions in the relations between him and his client, make gain to himself at the expense of his client, beyond the amount of the just and fair professional remuneration to which he is entitled." Because the solicitor, when he accepts a retainer, is contracting with his own client, he has a duty to advise the client fully and fairly concerning the terms of that contract. That is a duty which arises from the [above] principle. (See London Loan & Savings Co. v. Brickenden, [1933] S.C.R. 257 at 261-62, [1933] 3 D.L.R. 161.) There is nothing new about this principle. ... Kay L.J. also adverted to this principle in Re Romer and Haslam, [1983] 2 Q.B. 286, p. 304, where he said: "There is another consideration which operates upon my mind: that if it was

intended, when these bills were taken, to treat them as absolute payment of the bills of costs, so as to preclude the solicitors from exercising their right to sue, and the clients from exercising their right to tax, without shewing special circumstances, in such a transaction as that between solicitor and client it is the solicitor's duty to shew that he made clear to his client its necessary result. Here nothing of the kind has been done; and I am clearly of opinion that the solicitors never intended to deprive the clients of their right of taxing their bill." [The italics are [those of Southin J.A.].] In my opinion, any contract entered into by a solicitor with a client, or any act or omission by a solicitor in his dealings with his client, which deprives the client or is asserted to deprive a client of any of his legal rights existing under the principles of entire contract, can only be given effect to if the solicitor establishes "that [it] ... preclude[s] any suspicion of an improper attempt to benefit himself at his client's expense". In "act or omission" in that formulation, I include insisting on payment during the course of an entire contract and then taking the position that the client has no right to tax. A solicitor might be able to "preclude any suspicion" by showing that the client with full knowledge and understanding made a bargain giving up his right to tax.

[Arctic, at para. 55; emphasis added.] [47] I was also assisted by what is written at paras. 25 and 45-50 of that decision: [25] At paras. 68-95 of his reasons, Registrar Blok reviewed the opinion evidence given by various lawyers on behalf of Inmet. These included Mr. Tory of Torys, who testified that the usual practice at his firm is to render accounts for fees on an hourly basis on corporate/commercial matters, the accounts reflecting the "complete charge for the period". He said this practice was consistent with the usual, and almost invariable, practice of other firms handling major commercial litigation in Ontario. At the same time, he acknowledged that in rare circumstances, a premium at the conclusion of a matter might be discussed, but unless previously agreed upon, would depend on the client's agreement. Another expert who testified as to Ontario practice pointed out R. 2.08(1) of the Rules of Professional Conduct of the Law Society of Upper Canada, which prohibits a lawyer from charging or accepting any amount for a fee "unless it is fair and reasonable and has been disclosed in a timely fashion." A Commentary to the Rule adds that the fiduciary relationship between lawyer and client "requires full disclosure in all financial dealings between them and prohibits the acceptance by the lawyer of any hidden fees." (Para. 75.) There was also evidence of a survey of

members of the Canadian Corporate Counsel Association in British Columbia and Ontario, which indicated that 75% of the respondents were of the view that a lawyer is entitled to a "premium" for a successful result only when the lawyer and client have so agreed. (Paras. 81-2.) [45] A retainer is a contract and the parties are bound by its terms. These may be expressly agreed, implied by law, or imposed by statute. As explained in Vol. 66 of Halsbury's Laws of England (5th ed., 2009): The act of authorising or employing a solicitor to act on behalf of a client constitutes the solicitor's retainer by that client. Thus, the giving of a retainer is equivalent to the making of a contract for the solicitor's employment, and the rights and liabilities of the parties under that contract will depend partly on any terms which they have expressly agreed, partly on the terms which the law will infer or imply in the particular circumstances with regard to matters on which nothing has been expressly agreed, and partly on such statutory provisions as are applicable to the particular contract. [At para. 763.] [46] In the absence of an express agreement concerning payment, it is obviously an implied term of a retainer that the solicitor will be remunerated for his or her work. In this province, the contractual gap created by a failure of the parties to agree specifically on the terms of payment

is filled by s. 71(4) of the Act, which stipulates that in the absence of an express agreement, the solicitor's fee will be assessed on the basis of the factors enumerated therein, i.e., on what has come to be called a "fair fee" basis. [47] In the case of a retainer to conduct an action, it is an implied term that the solicitor will take all steps necessary to bring the action to an end. In other words, such a retainer is an "entire contract": Underwood, Son, & Piper v. Lewis [1894] 2 Q.B. 306 at 309-310, 313 (C.A.); Arctic, supra, at para. 48; Morrison Voss v. Smith, 2007 BCCA 296, 69 B.C.L.R. (4th) 290 at para.

32. It follows that unless the client agrees otherwise, the solicitor is not entitled to any fee under an entire contract until he or she has completed the work. This is explained in Frederic T. Horne, ed., Cordery's Law Relating to Solicitors (8th ed., 1988) as follows: A retainer may be said to be an 'entire contract' where the client cannot receive the benefit of the consideration until the contract is completed. Thus, under a retainer to sue for damages for breach of contract the client cannot get any benefit until judgment has been obtained so that the solicitor should not be entitled to tax his costs until the client has either obtained judgment or lost the suit, for 'If a shoemaker agrees to make a pair of shoes he cannot deliver one to you and ask for half the price'. [At 71; footnote omitted.] [48] A retainer effectuates a duty of utmost good faith on the part of the solicitor: Tyrrell v. Bank of London (1862), 10 H.L. Cas. 26 at 44, 11 E.R. 934 at 941; Arctic, para.

55. Whether implied or express, it is overlaid with fiduciary obligations owed by the solicitor to the client - it creates a relationship of trust and confidence from which flow obligations of loyalty and transparency: Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177, at para. 34. [49] he obligation of candour requires the solicitor to be candid with the client on all matters concerning the retainer, including ensuring that in any transaction between the two from which the solicitor receives a benefit, the client has been fully informed of the relevant facts and properly advised upon them: R. v. Neil, supra, at para. 19; London Loan & Savings Co. of Canada v. Brickenden [1933] S.C.R. 257 at 261-62, [1933] 3 D.L.R.

161. As seen above, this duty was cogently expressed in the reasons of Madam Justice Southin in Ladner Downs v. Crowley, supra, and is reflected in the Law Society of British Columbia's Professional Conduct Handbook, Chapter 9, Rule 7, which states: A lawyer must fully disclose, to the client or to any other person who is paying part or all of the lawyer's fee, any fee that is being charged or accepted As well, chapter 11 of the Canadian Bar Association's Code of Professional Conduct (Ottawa: Canadian Bar Association, 2006), provides that a lawyer shall not "stipulate for, charge or accept any fee that is not fully disclosed, fair and reasonable." [50] The days when all legal services were billed in one account on completion of the work are now long past. It has become a widespread practice in the profession to send accounts during the course of retainers. The business of the practice of law requires a regular cash flow to pay the myriad of associated operating expenses. As a result, there are several different types of accounts in use: see Architectural Institute of British Columbia v. McAlpine, Roberts & Company (1982) 138 D.L.R. (3d) 533 [1982] 5 W.W.R. 470, 37 B.C.L.R. 332 at 335 (C.A.); Bull, Housser & Tupper v. Mr. T. International Agencies Ltd. 1999 BCCA 427, 69 B.C.L.R. (3d) 391 at para.

17. An "interim" account is a provisional or temporary account and is subject to variation; a "final" account is one that will not be changed; a "periodic" account is one that relates to all professional services performed within a certain period of time - it may be final or interim; and a "work completed" account is a final account delivered on completion of the retainer. [48] I reviewed the Reasons for Judgment of Madam Justice Bennett in Grewal v. Singleton Urquhart, 2016 BCCA 289. That was an appeal by Harbans, although the relationship between the appellant in that decision and the case which I have before me is immaterial for the purposes of this fee review. Paragraphs 24-30 of that decision are as follows: [24] In Ladner Downs v. Crowley (1987), 41 D.L.R. (4th) 403 (B.C.S.C.), Madam Justice Southin (as she then was) provided a summary of the law concerning the nature of contracts for retainer and the right of lawyers to resist taxation of their bills, now referred to as a registrar's review. She canvassed a number of principles after an extensive review of the case law (at 420-423). The following are relevant to this appeal: (a) a lawyer's contract of retainer for a single matter, such as a common law action, is an entire contract to see the matter through to completion; (b) the lawyer is not entitled to be paid fees before he or she fully performs what is required under

the contract, e.g., in a common law action by going to judgment; (c) there is nothing preventing a lawyer from asking the client for money on account of fees during the course of the entire contract; and (d) periodic statements of account will only be considered enforceable final bills if there is an agreement to render final bills over the course of the retainer and the client is fully and fairly informed of the terms agreed upon and their effect on his or her legal rights, i.e., the effect on limitation periods. [25] The principles enunciated in Ladner Downs have been reaffirmed by this Court on several occasions: see e.g. Noel & Lewis Hldg. Ltd. v. Owen, Bird (1990), 44 B.C.L.R. (2d) 37 at 43-44; Norton, Stewart & Scarlett v. Westminster Pier General Partnership (1993), 84 B.C.L.R. (2d) 94 at para. 8; Bull, Housser & Tupper v. Mr. T. International Agencies Ltd., 1999 BCCA 427 at paras. 19-26 [Bull, Housser]; and Nathanson, Schachter & Thompson v. Inmet Mining Corp., 2009 BCCA 385 at paras. 49, 51 per Newbury and K. Smith JJ.A., Kirkpatrick J.A. concurring [Nathanson]. [26] Counsel for Singleton argued that Ladner Downs, especially proposition (d) listed above, is inapplicable because when that case was decided, there was no statutory right to review an account after it was paid by the client. Payment of an account was effectively a surrender of the client's right to review.

He correctly observes that s. 70(1)(b) now allows reviews within three months of a bill's payment. [27] However, the crux of the principle is that lawyers may not invoke terms of retainer agreements they draft to detrimentally affect their clients' rights unless the client is fully and fairly informed of those rights at the outset of the agreement. The "entire contract" principle and the obligation of lawyers to fully and fairly inform their clients are just as applicable today. Nathanson, cited above, reiterated the applicable principles at paras. 47-51: [47] In the case of a retainer to conduct an action, it is an implied term that the solicitor will take all steps necessary to bring the action to an end. In other words, such a retainer is an "entire contract": Underwood, Son, & Piper v. Lewis [1894] 2 Q.B. 306 at 309-310, 313 (C.A.); Arctic, supra, at para. 48; Morrison Voss v. Smith, 2007 BCCA 296, 69 B.C.L.R. (4th) 290 at para.

32. It follows that unless the client agrees otherwise, the solicitor is not entitled to any fee under an entire contract until he or she has completed the work. This is explained in Frederic T. Horne, ed., Cordery's Law Relating to Solicitors (8th ed., 1988) as follows: A retainer may be said to be an 'entire contract' where the client cannot receive the benefit of the consideration until the contract is completed. Thus, under a retainer to sue for damages for breach of contract the client cannot get any benefit until judgment has been obtained so that the solicitor should not be entitled to tax his costs until the client has either obtained judgment or lost the suit, for 'If a shoemaker agrees to make a pair of shoes he cannot deliver one to you and ask for half the price'. [At 71; footnote omitted.] [48] A retainer effectuates a duty of utmost good faith on the part of the solicitor: Tyrrell v. Bank of London (1862), 10 H.L. Cas. 26 at 44, 11 E.R. 934 at 941; Arctic, para.

55. Whether implied or express, it is overlaid with fiduciary obligations owed by the solicitor to the client - it creates a relationship of trust and confidence from which flow obligations of loyalty and transparency: Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177, at para. 34. [49] 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 between the two from which the solicitor receives a benefit, the client has been fully informed of the relevant facts and properly advised upon them: R. v. Neil, supra, at para. 19; London Loan & Savings Co. of Canada v. Brickenden [1933] S.C.R. 257 at 261-62, [1933] 3 D.L.R.

161. As seen above, this duty was cogently expressed in the reasons of Madam Justice Southin in Ladner Downs v. Crowley, supra, and is reflected in the Law Society of British Columbia's Professional Conduct Handbook, Chapter 9, Rule 7, which states: A lawyer must fully disclose, to the client or to any other person who is paying part or all of the lawyer's fee, any fee that is being charged or accepted As well, chapter 11 of the Canadian Bar Association's Code of Professional Conduct (Ottawa: Canadian Bar Association, 2006), provides that a lawyer shall not "stipulate for, charge or accept any fee that is not fully disclosed, fair and reasonable." [50] The days when all legal services were billed in one account on completion of the work are now long past. It has become a widespread practice in the profession to send accounts during the course of retainers. The business of the practice of law requires a regular cash flow to pay the myriad of associated operating expenses. As a result, there are several different types of accounts in use: see Architectural Institute of British Columbia v. McAlpine, Roberts & Company (1982) 138 D.L.R. (3d) 533 [1982] 5 W.W.R. 470, 37 B.C.L.R. 332 at 335 (C.A.); Bull, Housser & Tupper v. Mr. T. International Agencies Ltd. 1999 BCCA 427, 69 B.C.L.R. (3d) 391 at para.

17. An "interim" account is a provisional or temporary account and is subject to variation; a "final" account is one that will not be changed; a "periodic" account is one that relates to all professional services performed within a certain period of time - it may be final or interim; and a "work completed" account is a final account delivered on completion of the retainer. [51] Interim accounts are merely requests for money to be applied on a final account to be submitted later: Architectural Institute, at 336. The venerable rule that without the client's agreement the solicitor has no right to payment of any accounts, interim or final, delivered during the course of a retainer to conduct an action has been confirmed in the modern billing context in Bull, Housser & Tupper, where this court said: Law firms may deliver interim accounts during the course of a retainer and, if it has been so agreed, insist on their payment, perhaps as a condition of continuing to provide services. If those accounts are periodic final accounts, they will be bills subject to review. In Ladner Downs v. Crowley ... Southin J. (as she then was) held that lawyers can deliver final bills from time to time in the course of an entire contract only with the informed agreement of their clients. Mr. Crowley had retained Ladner Downs in August 1985 to represent him in a proceeding between himself and his wife.

In September 1986, he dismissed the firm. Between the retainer and the dismissal, the solicitors sent Mr. Crowley eight accounts, the last dated 12 September 1986. Mr. Crowley paid his former solicitors the amounts claimed for fees. On 4 November 1986, Mr. Crowley took out an appointment to tax all of the accounts. Ladner Downs objected because, inter alia, three of the accounts were rendered more than 12 months prior to the date for taxation. The Registrar concluded the accounts rendered were periodic final bills. Madam Justice Southin, after a thorough examination of the law, from 1661 to 1894, on contracts of retainer and the right of a solicitor to resist taxation, concluded the Registrar was in error. She held the series of accounts constituted one bill within the meaning of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, and referred all the accounts for taxation. She noted that agreements to render final bills during the course of a retainer are enforceable only if the lawyers have advised their clients fully and fairly about the terms to be agreed upon and the effect the agreement will have on the operation of limitation periods. [At paras. 19-21; italicized emphasis in original; underlined emphasis added.] [28] Absent unusual circumstances, "courts should lean against constructing periodic accounts as final bills": Robertson at 9 per Anderson J.A., Taggart

J.A. concurring. There are a number of sound reasons for this. For example, if the limitation period began to run after each periodic account was delivered it would greatly increase the number of reviews before the registrar. If a client had to protect himself or herself from potential overcharging by seeking reviews prior to the conclusion of the representation it would very likely impair if not break down the solicitor-client relationship. Reviews would become extremely difficult because of the inability to examine periodic accounts in light of the representation as a whole. These concerns are discussed in Robertson at 8-9 and Bull, Housser at paras. 22-26. See also Re Lipsett and Bliss (1976), 15 O.R. (2d) 35 at 36 (S.C. Master's Chambers). [29] However, relevant circumstances which may suggest a mutual and informed intention that periodic accounts are final bills can be found in the facts of Robertson at 8-11. They include, but are not limited to, the following: (a) the client is fairly and fully aware of his or her rights to review accounts and the operation of the agreement's terms on those rights; (b) the accounts are detailed in describing the work done and hours spent; (c) time is billed at predetermined fixed hourly rates; (d) the accounts are not subject to future adjustment; and (e) the client raised no complaint with respect to the accounts. [30] In short, these

circumstances look at two questions that must be answered before a court will treat periodic accounts as final bills. First, did the client give informed consent to periodic final billing at the outset? Second, did the rendered accounts take the form of final bills? Were they detailed, based on work performed for fixed fees, and not subject to change? The court will also consider whether the client raised an issue with the accounts over the course of the retainer, which might suggest the absence of mutual agreement to the terms. [49] One significant factor I must consider, and have considered, is the lack of sophistication of the clients. In her Reasons for Judgment in Grewal v. Grewal, 2017 BCSC 573, Madam Justice Fleming writes: [56] There are other considerations that bear on that assessment. Despite his involvement in a great deal of litigation, Zora struck me as a very unsophisticated witness. In cross-examination, his answers were sometimes unresponsive and occasionally confusing. Rather than viewing Zora as intending to evade, however, for the most part I saw this behaviour as caused by a struggle to understand what he was being asked. Complex questions clearly flummoxed him and had to be simplified. Other questions had to be repeated or rephrased quite frequently. On the whole, his evidence demonstrated a limited understanding of financial and business matters including

those related to the farm, as well as his long term dependency upon his brothers and other family members for information, consistent with the absence of literacy and an inability to speak English. This does not mean, however, I have concluded Zora is not susceptible to the influence of self-interest. [50] In para. 107, Fleming J. writes: [107] The oral collateral agreement and the Co-ownership Agreement were both formed when Zora signed the Co-ownership Agreement prepared by Mr. MacAdams. In contrast to Zora, Harminder was not only assisted throughout by his own counsel, he is also reasonably sophisticated. Harminder is educated, speaks and reads English, and by that time had operated and managed the farm's business, as well as his farm labour consulting business for a number of years. It is difficult to imagine a more vulnerable party to a detailed written contract than Zora, a person who had never learned to read or write and does not speak the language of the contract. Although Zora had the benefit of one meeting with Mr. Binpal, his task as a lawyer that day was onerous to put it mildly. Mr. Binpal was required to not only comprehend the eight-page document after reading it for the first time, but then to immediately interpret it and provide Zora with legal advice about its content. I note the experienced court interpreter who assisted Zora during his testimony struggled

at times to find a Punjabi translation for the common legal phrase, joint and several liability, a version of which appears in the Co-ownership Agreement. [51] In his reply submission, Mr. Holeksa sets out the legal principles relating to the assessment of credibility. At paragraphs 13-14 of his reply submissions, he writes: 13. In Faryna v. Chorny, supra, at paragraph 11 the court held that credibility must be determined in accordance with the preponderance of possibilities which a practical and informed person would recognize as reasonable in that place and those conditions: 11 The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his stoiy to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and

successful experience in combining skillful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind, [emphasis added] 14. In Bradshaw v. Stenner, supra, at paragraph 1 86 the Court provided a guide to the assessment of credibility: 186 Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (19191. 59 S.C.R. 452. 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis (19261.

31 O.W.N. 202 (Ont.H.C.); Farnya v, Chorny, [19521 2 D.LJU 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), f 19971 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para. 356). [52] In Desmoulin (Committee of) v. Blair (1994), 21 O.R. (3d) 217(C.A.), a decision of the Court of Appeal of Ontario, Austin J.A. comments on litigation that should be prosecuted but cannot be funded by one of the parties. In the decision page 5 of 6 of the extract provided to me, Austin J.A. writes: There is no express mention of risk of non-payment in this non-exhaustive list, but counsel argues that it is implicit in the phrase "degree of responsibility assumed by the solicitor". I accept that argument. [53] In the last paragraph of the decision he writes: In the final analysis, once it is accepted that risk of non-payment is a relevant factor, no issue is taken with the figure of $150,000. [54] In Raphael Partners v. Lam, 61 O.R. (3d) 417, an appeal from a judgment that sets aside an assessment officer's decision in assessing solicitor's fees, the judgment of the Court of Appeal of Ontario was delivered by a Cronk J.A. In dealing with the fairness of the fee agreement in para. 37 Cronk J.A. writes: [37] When a fee agreement is

challenged under the Act, the solicitor bears the onus of satisfying the court that the way in which the agreement was obtained was fair and that the terms of the agreement are reasonable. The fairness requirement of s. 24 of the Act is concerned with the circumstances surrounding the making of the agreement and whether the client fully understands and appreciates the nature of the agreement that he or she executed: Best v. Yegendorf, Brazeau, Seller, Prehogan & Wyllie (1998), 37 O.R. (3d) 633 (Gen. Div.). [38] In this case, in my view, the motions judge erred in assessing the fairness of the March 2000 fee agreement by focusing solely on the circumstances surrounding the March 2000 mediation, to the exclusion of the entire course of dealings between the parties concerning the solicitors' remuneration. [55] At para. 50 he writes: [50] The factors relevant to an evaluation of the reasonableness of fees charged by a solicitor are well established. They include the time expended by the solicitor, the legal complexity of the matter at issue, the results achieved and the risk assumed by the solicitor. The latter factor includes the risk of non-payment where there is a real risk of an adverse finding on liability in the client's case: Cohen v. Kealey & Blaney (1985), 10 O.A.C. 344 (C.A.); Desmoulin v. Blair (1994), 21 O.R. (3d) 217, 120 D.L.R. (4th) 700 (C.A.). History of Underlying

Proceedings for Which Legal Fees were Charged [56] This is a review of five bills rendered by the law firm to the clients for legal work performed from February 2009 to June 26, 2017. [57] The law firm was retained, and Mr. Holeksa commenced acting for the clients in March 2008 with respect to legal actions involving Harbans, Harbans' wife, Jasbir Grewal ("Jasbir") and then Zora's brother, Harminder. In addition to the five bills which are the subject of this appointment, I reviewed and considered the work that was done contained in bills rendered in 2008. [58] On August 31, 2008, the law firm rendered an account to the clients with respect to the dispute with Harbans over 2115 Ridgeway Street in Abbotsford, British Columbia, which was the property in which the clients resided. That bill was for a total of $100,605.49, including legal fees of $85,905.50. There was also a bill rendered on March 31, 2008 in the amount of $4,680.89, of which $3,980 were legal fees. Those two bills total $105,286.38. On or about March 14, 2009, Mr. Holeksa on behalf of the law firm (referred to as the "plaintiff" on a certificate of fees) and the clients, (referred to as "defendants" on the certificate of fees) consented to fees in the amount of $105,286.38, with no costs of review and no interest. That certificate was filed in the New Westminster Registry on March 4, 2008. Nothing has been paid on

those bills; the entire amount of the certificate remains outstanding. [59] The bills which are the subject matter of this appointment are for legal work performed from February 2009 to June 26, 2017. The bills total $1,508,794.86 and are comprised of the following: (a) 001 - matters relating to disputes with Harbans Grewal ("Harbans") - $1,214,293.30; (b) 003 - matters relating to appeal of assessment by Canada Revenue Agency - $7,543.68; (c) 004 - matters relating to disputes with Harminder Grewal ("Harminder") - $225,309.63; (d) 005 - matters relating to foreclosure by Bank of Montreal - $23,915.45; and (e) 010 - matters relating to foreclosure by Farm Credit Canada - $37,732.80. [60] The background to most of the issues for which legal fees were billed has been set out by Madam Justice Fleming in Reasons for Judgment in one of the actions, Grewal v. Grewal, 2017 BCSC 573, as follows: [9] The parties and Harbans were born and raised in Punjab, India. As a child Zora worked on the family farm and did not attend school. He never learned to read or write or to speak English. In contrast, Harminder completed high school and post-secondary training as a medical technologist. Harbans was also educated and received electrical training. [10] Harminder came to Canada before Zora. He worked briefly and then established a farm labour contracting business. After Zora arrived in the late

1980s he lived with Harminder. Later Zora, Harbans and his wife jointly purchased the property next door ("Ridgeway"). Harbans obtained an electrical licence and began an electrical business. He trained Zora and they worked together in the business for 18-20 years. [11] In 2003, the parties and Harbans bought the farm for $1,500,000. Zora and Harbans were occupied by the electric business and Harminder became primarily responsible for the farm, although he was also operating the farm labour contracting business. [12] On June 10, 2005, Harbans brought an action against Zora and Harminder, alleging each was a one-third partner and Harminder was in breach of a partnership agreement regarding the management of the farm. On November 29, 2005, Harbans and Zora commenced another action together against Harminder, based on essentially the same allegations. On September 5, 2006, Harminder brought a partition proceeding against Harbans and Zora, seeking an order that the farm be sold ("Partition Action). In July 2007, Zora switched his allegiance from Harbans to Harminder. [13] On July 19, 2007 in the Partition Action, the court granted Zora and Harminder conduct of the management of the farm and ordered the proceeds from the 2007 blueberry crop to be paid to Mr. MacAdams and held in trust, and the prohibition of cash sales. On December 7, 2007, the farm was ordered to be sold. Six days

later, Harbans commenced another action against Zora and Harminder in which he filed a certificate of pending litigation ("CPL") against the farm, and claimed he was entitled to a 74.5% beneficial interest, Harminder 25.5% and Zora nothing, although Harbans had not asserted more than his one-third interest shown on title in the other actions ("Harbans Farm Action"). [14] Meanwhile, Harbans and Zora were involved in other litigation against one another. In addition to the electrical business, Zora and Harbans and their spouses had acquired a number of assets, namely real properties in which they and their families had lived together, first Ridgeway and then "Legacy Court", as well as an interest in a company that owned commercial properties. Given Zora's limitations, Harbans had managed the electrical business, the other assets acquired by the two families, and their finances. In August 2006, Zora had severed the joint tenancy in the farm and Legacy Court, the home where both families were residing at the time. In December 2006, he and his family left Legacy Court and returned to Ridgeway. [15] On January 21, 2008, after the farm was ordered sold and Harbans had filed the CPL in the Harbans Farm Action, Harbans and his wife commenced another action against Zora in which they claimed Zora held his interest in Ridgeway on a resulting trust to them. In his counterclaim Zora alleged

a long term partnership with Harbans and an equal interest in assets acquired by the two families, among them Ridgeway and Legacy Court ("Residences Action"). Later, in May 2008 Zora and his wife brought an action against Harbans, his wife and son in which they claimed Harbans and Zora had conducted various businesses including a series of electrical businesses and accumulated assets as a partnership ("Partnership Action"). See: Grewal v. Grewal, 2016 BCCA 237 and Grewal v. Grewal (20 June 2008), New Westminster S110167 (B.C.S.C.) ("Grewal Costs Decision"). [16] On February 7, 2008 in the Partition Action, the court appointed a receiver to oversee the sale of the farm. On February 20, 2008 the receiver listed the farm for sale at $4,500,000. The deadline for offers was set at March 25, 2008. At the time the farm was encumbered by the 2003 Mortgage which had an outstanding balance of approximately $1,170,000. There is no dispute the parties and Harbans each owed about $390,000. [17] On March 18, 2008, Harminder and Zora signed the detailed, eight-page Co-ownership Agreement. The material portions are as follows: Background Facts F. Zora and Harminder contest the claims of Harbans advanced in proceeding S110167 [Harbans Farm Action] and contend that the legal interests of each of Zora, Harminder and Harbans in the Land reflect the beneficial and equitable interest of each in the

Land; H. Zora and Harminder wish to purchase the Land and thereafter, subject to any orders which may be made in proceeding S110167 or in other proceedings, if any, Zora and [Harminder] wish to hold the Land as tenants in common with Zora to hold an undivided 1/3 interest in the Land and Harminder an undivided 2/3 interest in the Land; I. To effect purchase on the terms on which Zora and Harminder intend to offer to purchase and to pay out to Harbans in respect of Harbans' undivided 1/3 interest in the Land, Zora and Harminder must pay $2,573,000 of which Zora must borrow $426,500 and Harminder must borrow $1,946,500 which borrowing may be secured by a mortgage to be registered against the Land, and Harminder must borrow a further $200,000 which borrowings are not to be secured by a mortgage registered against the Land. in consideration of the premises and the mutual covenants contained in this Agreement, Zora and Harminder agree as follows: 1. Purchase of Land 1.1 Zora and Harminder shall jointly submit an offer to purchase the Lands for total consideration of $5,160,000 subject to the approval of the Court in proceeding S17239 [Partition Action], such approval to include an order granting priority over CPL BB200428 to a mortgage in the amount of $2,373,000. 1.2 Zora and Harminder shall fund the offered purchase price as follows: (a) Zora shall contribute his 1/3 undivided interest in the Land, which Zora values at $1,720,000; (b) Harminder shall contribute his 1/3 undivided interest in the Land, which . Harminder values at $1,720,000; (c) Zora and Harminder shall jointly tender cash in an amount of $2,573,000 (Cash Portion of Purchase Price).

2. Financing of Cash Portion of Purchase Price 2.2 Notwithstanding that Zora shall be registered as to an undivided 1/3 interest and Harminder shall be registered as to an undivided 2/3 interest, Zora and Harminder shall jointly borrow cash in the amount of $2,373,000 from a chartered bank (Bank Purchase Financing) and shall jointly and severally be responsible for the debt 2.3 Notwithstanding that Zora shall be registered as to an undivided 1/3 interest and Harminder an undivided 2/3 interest, Harminder from his resources shall pay 82.1% and Zora from his resources shall pay 17.9% of all payments of principal and interest required to service the Bank Purchase Financing. 2.4 If either Harminder or Zora makes, or is required to make, payment of the Bank Purchase Financing in addition to his respective obligation set forth in Term 2.3 of this Agreement, the other will reimburse as required to cause each to bear the Bank Purchase Financing in accordance with proportions set out in paragraph 2.3.

3. Holding the Land 3.1 Zora shall hold his undivided 1/3 interest as the beneficial and equitable owner of that undivided 1/3 interest free of any trust claims by Harminder, and Harminder shall hold his undivided 2/3 interest as the beneficial and equitable owner free of any trust claims by Zora, subject to court orders in [the Harbans Farm Action] or in other proceedings brought by Harbans or by persons other than Zora or Harminder. 3.2 All expenses for payment of real property taxes levied against the Land, all expenses for the cost of repair and maintenance of the Land, all expenses for premiums for public liability insurance, fire and extended coverage with respect to the Land (Shared Expenses) shall be born as to 1/3 by Zora and as to 2/3 by Harminder 3.3 All revenues arising from holding the Land shall be credited as to 1/3 to Zora and as to 2/3 to Harminder.

5. No partnership created by this Agreement 5.1 Neither co-ownership of the Land nor this Agreement will be construed as creating a partnership between Zora and Harminder. Zora and Harminder may enter into a separate agreement to govern joint farming operations on the Land.

6. General provisions 6.4 Failure by either Zora or Harminder to complain of any act or failure to act of the other or to declare the other in default, irrespective of how long the failure continues, will not constitute a waiver of any rights. 6.9 The language in this Agreement will be construed simply according to its fair meaning and not strictly for or against either party. 6.10 This Agreement, together with any written amendments entered into by Zora and Harminder, will constitute the entire agreement between them relative to the subject matter and will supersede any prior agreement or understanding, if any, whether written or oral, which either Zora or Harminder may have had relating to the subject matter.

7. Termination of Agreement 7.1 This Agreement will terminate on the earliest of the following events: (a) on the day the Land is transferred pursuant to a court order in proceeding S17239 [Partition Action] if Zora and Harminder are not successful in obtaining approving sale of the Land to them; (b) on the sale of the Land by Zora and Harminder; (c) on the sale of the interest in the Land of Zora or of Harminder pursuant to the provisions of paragraph 4.1 or 4.2 of this Agreement; or (d) by written agreement of Zora and Harminder. [18] After Harminder signed the draft of the Co-ownership Agreement prepared by Mr. MacAdams, he took Zora to meet with Raj Binpal, a Punjabi speaking lawyer who both translated the document and provided him with independent legal advice. [19] Zora alleges he left his meeting with Mr. Binpal to discuss the figure of $426,500 set out at Recital I with Harminder. According to Zora, it was at this point that Harminder promised to pay him the difference between that amount and Zora's obligation under the 2003 Mortgage, if he signed the Co-ownership Agreement which he did almost immediately. Harminder denies making the promise or even discussing the issue. [20] On March 24, 2008, the parties signed the Amendment Agreement which amended certain aspects of the Co-ownership Agreement. In addition to increasing the offer from $5,160,000 to $5,400,000, the

Amendment Agreement required Harminder to borrow an additional $55,000 in cash and Zora and Harminder to jointly borrow $2,400,000, instead of $2,373,000. Zora's obligation under Recital I to contribute $426,500 and his percentage payment obligations under Term 2.3 of the Co-ownership Agreement were not changed. [21] On or about March 28, 2008, the receiver accepted the parties' offer. They learned it was about $1,000,000 more than the second highest offer. [22] On June 20, 2008, after the court had approved the sale of the farm to the parties in the Partition Action, the court granted their application in the Harbans Farm Action to temporarily remove the CPL, finding the security they proposed, $375,000, ample, and assessing Harbans' claims as of dubious merit Grewal Costs Decision at paras. 29-38) [23] On July 2, 2008, when the transfer of the farm to Harminder and Zora was registered along with the 2008 Mortgage, the 2003 Mortgage was paid out in the amount of $1,172,377.77. [24] In 2009 a second mortgage was taken out against the farm to pay farm expenses in the face amount of $300,000 although the actual advances were $235,000 ("2009 Mortgage"). [25] The Harbans Farm Action, the Residences Action and the Partnership Action were consolidated and heard together in an extended process starting in June 2009 that involved a trial, several applications and three judgments over

four years. In the Harbans Farm Action, the trial judge dismissed Harbans' claim to a 74.5% interest in the farm and held each brother was instead entitled to a one-third interest. In the Residences Action and the Partnership Action, the trial judge rejected Zora's claim of partnership but found, based on a joint family economic unit, that Harbans owed Zora an ad hoc fiduciary duty and distributed assets between them. The Court of Appeal heard eight appeals from the trial judge's decisions in the three actions, as well as two costs decisions, allowed appeals brought by Harbans and Zora in relation to the Partnership Action and the Residences Action and ordered a new trial. Harbans' appeal from the Harbans Farm Action was dismissed (cite) [26] In 2012 the Bank of Montreal foreclosed against the 2008 Mortgage and 2009 Mortgage. On November 21, 2012 the Order Nisi was granted for a total debt of $2,670,345.99 comprised of $2,406,965.16 under the 2008 Mortgage and $263,380.83 under the 2009 Mortgage. [27] On December 12, 2013 Farm Credit Canada ("FCC") granted the parties a new mortgage of $2,800,000 ("FCC Mortgage"). The 2008 and 2009 mortgages were paid out of the proceeds. [28] The parties operated the farm as a partnership until on or about December 31, 2014. The partnership had two bank accounts that were used to pay the mortgage and other farm expenses. After 2014, FCC

Mortgage payments were made from those accounts. Harminder and Zora divided their responsibility for farming each of the six fields into two-thirds and one-third sections, along with the expenses and revenues from each of their respective areas. In December 2015, Zora paid $24,452.22 toward the FCC Mortgage. Harminder did not pay anything in that year. [29] FCC foreclosed on its mortgage. On November 3, 2016 FCC received an Order Nisi with judgment granted against the parties in the amount of $3,020,998.81. The redemption date is May 3, 2017. [61] All of the matters apart from the bill on file 003, the appeal of an assessment by Canada Revenue Agency ("CRA"), required court attendances. Evidence [62] The first witness was a lawyer, Douglas MacAdams, QC, who represented Harminder in much of the litigation which also involved the clients. Mr. MacAdams set out the facts giving rise to some of the protracted litigation, including in particular the circumstances giving rise to an application by his client and Zora for approval of sale of a sixty-one acre berry farm called "Prince Farms" in Langley (the "Berry Farm"). [63] Mr. MacAdams testified that he was called to the bar in 1974 and was appointed Queens Counsel in 2001. He testified that he practices in the area of civil litigation. He testified that he represented Harminder Grewal. He gave some history of the three brothers

purchasing land in Langley which formed the Berry Farm. He described the three brothers as co-owners and co-ventures. [64] He testified about some of the applications in which Mr. Holeksa was representing the clients. He testified that his hourly rate between December 5, 2007 and June 27, 2008 was $350 an hour and that he recorded his time by the minute, but that he rendered his fees on the basis of the factors in s. 71 of the LPA. [65] He testified that his total bill for work he had done was $207,903.90. [66] He described as a signal success the securing of $445,000 from Harbans' money as security for costs against the claims of Harbans and the clients. He set out that tying up those funds was a demanding exercise and Mr. Holeksa was part of that. [67] He testified with respect to proceedings in front of the trial judge at the 21-day trial and its sequelae. [68] When asked why the trial was difficult he set out that the volume of material including banking records and the shuffling of money, made it difficult to deal with the accounting. He testified that there were thousands of listed documents which needed to be slogged through. He testified that Mr. Holeksa's knowledge of these documents was a key to success in countering Harbans' claims. [69] He testified that the legal work performed by Mr. Holeksa was "grinding detail work made more complex made by inconsistencies

between documents and positions taken by Harbans". He testified how Harbans, acting for himself from time, to time made things much more difficult. [70] He testified with respect to Mr. Holeksa's character and standing in the profession. He had not dealt with Mr. Holeksa before, but in his view, Mr. Holeksa was highly skilled. He said Mr. Holeksa prepared materials to a high standard. He testified that Mr. Holeksa's submissions showed a depth of understanding, were focused and effective. He testified that Mr. Holeksa's cross-examination was dogged and successful. He testified that he felt Mr. Holeksa was shrewd and that he had the ability to see below the surface, which he found to be a useful quality. He testified that Mr. Holeksa did not seek to pursue things of secondary importance. [71] He testified that in his view he could rely on Mr. Holeksa's work, he knew Mr. Holeksa's clients' interests were not identical to his client's interests, and conducted himself accordingly. [72] He testified about other lawyers who had spoken well of Mr. Holeksa, including a lawyer who had worked with Mr. MacAdams, then left Mr. MacAdams firm, and who had retained Mr. Holeksa to assist with estate litigation. [73] The testimony of Mr. MacAdams was not initially challenged. Reena, who was in attendance during the time Mr. MacAdams testified, advised that she wanted an adjournment and, as part

of that adjournment, wanted to cross-exam Mr. MacAdams. [74] On January 9, 2018, Mr. MacAdams was cross-examined. Much of the evidence he gave was a repeat of the evidence that he had previously given. Mr. MacAdams set out the results obtained by him on behalf of Harminder and the results obtained by Mr. Holeksa on behalf of the clients. [75] He testified that Mr. Holeksa succeeded in turning back the claims of Harbans against Zora in respect of the trust claims. He testified that, in his view, Zora's position was more problematic than that of Harminder, Mr. MacAdams' client. He testified that Mr. Holeksa "sliced back" Harbans' claims with respect to over-contribution to the Berry Farm, successfully turned back Harbans' claims about Zora's contribution, and established that what Harbans was claiming were largely his contributions, were in fact Zora's. [76] He testified that Zora got a judgment against Harminder and that Mr. Holeksa succeeded in unravelling the joint family operation by "successfully unravelling Harbans' convoluted banking" which Mr. MacAdam testified was formed by Harbans to the distinct disadvantage of Zora. He testified that Mr. Holeksa also turned back Harminder's quarrels and protected Zora against Harminder's claims. [77] Mr. MacAdams restated his billing practices, which were to make an effort to obtain a substantial hourly rate, but that he billed based

on the Yule principles. He acknowledged that hourly rates in the Fraser Valley, where Mr. MacAdams practices, were less than hourly rates in Vancouver. [78] He emphasized that through the efforts of himself and Mr. Holeksa, approximately $490,000.00 was secured, much of that to pay out for the day-to-day operations of the Berry Farm. The funds were also secured to prevent them from being utilized by Harbans. [79] Mr. MacAdams testified that with respect to retainers, it was best practice to sit down and discuss the retainer with the client. He testified that in some circumstances it might be important to have the client seek independent legal advice, but did not recall having done that himself in dealings with his clients. He confirmed that the capacity of the client and the sophistication are all factors to take into account with respect to retainer agreements. [80] Mr. MacAdams confirmed that his office received the Certificate of Fees, which was ultimately filed with the court on March 4, 2009. He confirmed that he received this on or about February 19, 2009. He was referred to an email which made reference to "additional documents". He testified that he had no recollection of any additional documents, and could not recall whether a retainer agreement was with the certificate. [81] He did confirm that he assisted in the arranging of a meeting in February 2009 with Zora,

Harinderpal, Harry Tatlay, an interpreter, and Mr. Holeksa at Mr. MacAdams' office to go over the retainer agreement. [82] The testimony given by Mr. MacAdams with respect to Mr. Holeksa's character and standing in the profession was not challenged. I conclude that Mr. Holeksa is of good character and is well regarded by those colleagues aware of his abilities. [83] Mr. Holeksa testified. With respect to the skill, specialized knowledge and responsibility required of the lawyer, Mr. Holeksa testified that following graduation from Dalhousie University in 1978, he was called to the bar in September of 1980. He articled at a firm then known as Russell & Dumoulin. He has practiced continuously as a litigator. He testified that his practice was always basically litigation and included a wide variety of litigation matters including commercial, construction, criminal, personal injury and some estate litigation. He was counsel to the BC Assessment Authority and conducted assessment appeals. He testified that those were often done on very short notice and involved large properties and lengthy hearings, such as shopping centres and large tracts of land. He testified that he did a Quicklaw search of himself which recorded that he had appeared in the Court of Appeal in excess of thirty times. He specifically referenced one case in 1993, Hollis v. Dow Corning Corporation, Vancouver

Registry CA012539, Reasons for Judgment issued June 21, 1993. I read those Reasons for Judgment. They demonstrate the familiarity Mr. Holeksa has with complex and difficult legal matters. [84] Mr. Holeksa testified as to his time keeping. He gave an example of how he kept time in exhibit 7. He redacted the documents for privilege as they pertained to persons other than the clients. [85] In evidence, Mr. Holeksa testified as to how he kept track of his time. I am satisfied that the bills accurately reflect the time spent by Mr. Holeksa and on occasion others in the law firm, billed at the rates set out. [86] He testified that his time was recorded in a program called "PC Law", which is used to prepare the bills. [87] He testified that his hourly rate commenced at $375 per hour, went to $400 per hour in 2010, $435 per hour in 2011, $450 per hour in 2012, $465 per hour in 2013, $480 per hour in 2014, $490 per hour in 2015, $515 per hour in 2016, and $525 per hour in 2017. [88] He described how each time entry was set out on the bills. He testified that in all cases he performed the work that was noted as being done by him, and explained the work done by others whose time appears on the bills and confirmed that the work done by those persons was as recorded on the bills. Bill of File 003 - Matters Relating to Appeal of Assessment by Canada Revenue Agency [89] This bill was for

$7,543.68. The legal fees portion of the bill is $6,550, for legal work done by Mr. Holeksa. [90] Mr. Holeksa confirmed in submissions that the tax appeal is not an inherently complex matter. However, the matter was complicated somewhat by the inability of Zora, Harminder and the accountant to provide full and proper information. [91] The amount involved was approximately $30,000. Instructions to appeal the tax assessment took place in 2010. Mr. Holeksa was successful in having CRA hold off until the outcome of the actions between Zora and Harbans was resolved. Following resolution of that action, negotiations took place with a representative of CRA, which resulted in the CRA abandoning the reassessment. Mr. Holeksa on behalf of his client Zora was entirely successful. Defending the Bank of Montreal Foreclosure [92] The Bank of Montreal foreclosed on the Berry Farm. There was an Order Nisi with a six-month redemption period on November 21, 2012. The redemption period expired May 21, 2013. [93] The delay in receiving Reasons for Judgment on the litigation involving Harbans, which included Harbans placing a Certificate of Pending Litigation against title to the Berry Farm, made it difficult for Zora and Harminder to refinance. [94] Mr. Holeksa, on behalf of the clients, was able to obtain a delay in the implementation in the Order for Conduct of Sale being sought by the Bank of

Montreal. That permitted Zora and Harminder to obtain a new mortgage from Farm Credit Canada with the result the Bank of Montreal was paid out. [95] The bill for the work related to the Bank of Montreal foreclosure was $23,915.49. The fees portion was $20,881. In 2008, the Berry Farm was sold for $5,406,000, though that was not an arms length sale, and might have been over valued by up to $1 million. Nevertheless, the equity Zora had in the farm would have been jeopardized by the Bank obtaining an Order for Conduct of Sale. Although the court would have ensured that any sale was provident, there was a substantial risk that much of Zora's equity in the Berry Farm would be diminished by a court order sale process. [96] The actions of Mr. Holeksa were a complete success for Zora. Zora and Harminder obtained replacement financing and continued as owners of the Berry Farm. Farm Credit Canada Foreclosure and Related Matters [97] Harminder took the position that Zora was entitled to less than $68,000 equity, but made an offer to purchase Zora's interest for $68,000. [98] Through the actions of Mr. Holeksa in submissions made respecting disposition of funds from what ultimately became a court ordered sale, Zora became entitled to approximately $1,250,000 for his interest. Action against Harminder [99] This case went to trial for five days in front of Madam Justice Fleming. The main

issue had to do with who was responsible for what portion of the mortgage debt utilized to assist in the purchase of the property. [100] In addition there was an issue about an oral promise to pay. [101] Zora was successful on all issues. The amount Zora owed under the mortgage was determined to be somewhat in excess of half a million dollars, rather than slightly under $1 million as claimed by Harminder. In addition, Zora's claim for $35,000 based on an oral agreement was accepted. Due in large part to the diligence and the work done by Mr. Holeksa, Zora was completely successful in all matters of the dispute. [102] The bill for work related to the dispute with Harminder was $225,309.63 of which the fees portion was $188,145.50. Those are substantial fees, considering that there was a five day trial. However, I also need to take into account the fact that the trial of the dispute was held in abeyance. The action was commenced in 2011 but was held in abeyance until early 2016. The legal fees were not primarily charged by Mr. Holeksa, but an associate, Mr. Sanai, also worked in excess of 40 hours. He billed at a much lower hourly rate. He has the ability to speak Punjabi which assisted in preparing for accounting work and in other communication with the clients. [103] As can be seen, the fees were slightly less than half of the amount in dispute. Actions Involving Harbans [104]

The final bill for the various actions involving Harbans was $1,396,123.84. [105] The bill which I am assessing is for $1,214,293.90. [106] On October 11, 2016, an interim bill was rendered for $181,829.94. This interim bill was rendered because funds were finally available to pay. The interim bill included disbursements and then from what was left over, other fees were billed and paid. [107] I reviewed the bills and time records and confirm that, apart from $7,875, there was no duplication of billing between the interim bill and the bill presented to me for review. This duplication was pointed out by Mr. Holeksa. [108] Mr. Holeksa testified that the actions involving Harbans were complex, difficult and novel. I agree with that characterization. [109] Zora does not speak English. Mr. Holeksa submitted that this substantially increased the amount of time required for interviewing. Mr. Holeksa submitted that it actually made it four times as long because of the need to go into great detail, not easily communicated through interpreters. [110] The clients were not frequently involved in business. Zora is a farmer. The Reasons for Judgment provided to me demonstrate that he is both hard working and successful at that difficult endeavor. However, he is illiterate in both Punjabi and English, which obviously made it difficult to prepare him with respect to giving good evidence. [111]

The exhibits are replete with many emails and letters from Mr. Holeksa to the clients giving detailed advice, requesting instructions, answering questions, and then confirming advice. [112] Zora's position was that he was entitled to one-third of the Berry Farm which in 2008 sold for $5,406,000, although, because that was a non-arms-length sale it was possibly over-valued by what was submitted to me to be in the range of $1 million. Even so, his interest in the Berry Farm was worth substantially more than $1 million after taking into account the existing mortgage. [113] In addition, Harbans claimed that he was entitled to recover approximately a half-million dollars from Zora for financial contributions Harbans claimed he made to the Berry Farm. [114] In addition, Harbans and Jasbir claimed that the clients had no interest in either of the two houses. At the time of the trial, those two houses were worth approximately $950,000. The clients claimed that they were entitled to a half-interest in each, which amounts to $475,000. [115] Finally, there was a claim by Zora for a one-sixth interest in 293075 BC Limited, a company which owns some commercial properties which are rented. It was submitted to me that this claim was in the range of $350,000. [116] In total, the amount involved in the litigation against Harbans, while difficult to determine with precision, is probably in the

range of $4 million. [117] The matter was further complicated by the fact that the trial judge delayed in issuing any Reasons for Judgment for 18 months and then issued reasons piecemeal, orally and, with respect, in a somewhat confusing manner. Regrettably, from the clients' perspective, this made dealing with the oral reasons and obtaining orders resulting from those reasons much more difficult and time consuming. [118] The clients were almost completely successful at trial. Two of the matters in issue were overturned in the Court of Appeal in the sense that a new trial was ordered and some costs awarded against the clients. However, the main judgment was upheld in the Court of Appeal and costs were awarded in favour of the clients. [119] Through the efforts of Mr. Holeksa the clients were able to obtain orders for special costs which, had they not terminated their retainer and entered into a side deal with Harbans, would have resulted in substantial recovery. [120] The bill with respect to file 001, the dispute with Harbans, included preparation for and attendance at a twenty-one day trial. The parties were in trial from June 22-26, June 29, June 30, July 2-3, October 26-30, November 2-6, all in 2009 and then January 7 and 8, 2010. [121] Judgment was rendered in a series of somewhat disjointed oral reasons. The first of those oral reasons was not delivered until September 2,

2011, almost twenty months after the trial. [122] Mr. Holeksa attended those twenty-one days of trial. He has attended applications and hearings in the Supreme Court for an additional eighteen days. He attended the hearing of a two-day appeal in the British Columbia Court of Appeal on December 2 and 3, 2015 and, in addition, attended at applications and hearings in Court of Appeal Chambers on four additional days. [123] The trial and the appeal hearings were for full days. Some of the other attendances were for full days. Many of the hearings were for approximately one hour. [124] The evidence at the hearing before me included entering as exhibits substantial extracts from the correspondence and other work product of Mr. Holeksa. [125] Exhibit 8 contains the various Reasons for Judgment rendered in matters involving the clients. There are ten Reasons for Judgment from the trial judge, four Reasons for Judgment from Madam Justice Arnold-Bailey dealing with some of the interlocutory matters involved, two Reasons for Judgment from the Court of Appeal, one from Harris J.A. in Chambers and one on a substantive appeal of eight separate appeals rendered by Madam Justice Neilson, concurred in by Goepel and Savage J.J.A. I have previously referenced Reasons for Judgment following the five-day trial in front of Madam Justice Fleming. [126] As noted above in para. 118, some of the matters

which were the subject of the twenty-one day trial were successfully appealed by Harbans and a new trial was ordered with respect to those issues. Apart from the partial success from Harbans in those appeals (which resulted in a new trial, not an adverse finding, although there were costs ordered against the clients), Mr. Holeksa on behalf of his clients was essentially wholly successful. [127] He was also successful in obtaining some special costs orders. He was successful in tying up funds from the parties in opposition from the clients. He was successful in obtaining the results sought by the clients throughout this lengthy and difficult series of legal battles. [128] He was completely successful with respect to the tax appeal, resulting in a substantial savings to Zora. [129] In this case there was a written retainer agreement. One year before, in dealing with the 2008 matters, a similar retainer agreement was provided to the clients. [130] Mr. Holeksa was then cross-examined by Mr. Learn on January 9, 2018. [131] In cross-examination he explained that the account he rendered for $181,829.94 was an interim account. The amount was determined by billing the disbursements which had been carried by the law firm, the time recorded by lawyers other than Mr. Holeksa and then the time recorded by Mr. Holeksa up to the amount that was available for payment of the account. [132] He

clarified that some of the discrepancies between the pre-billing reports and the accounts had to do with his hourly rate changing. [133] He was cross-examined about his failure to send out interim bills. [134] He was cross-examined about the fact that the claim he advanced on behalf of the clients for special costs awarded against Harbans was for more money than was actually billed to the clients. He testified that the bill to the clients utilized older hourly rates, whereas the proposed special costs payable by Harbans were at Mr. Holeksa's then current hourly rates. [135] One issue on which he was cross-examined was the discrepancy in the dates of the retainer letters. There were two versions, one dated February 9, 2009 and one dated February 10, 2009. The February 9, 2009 version did not have the law firm logo. The description of the pagination suggested seven pages, although in fact both letters were in content identical and were six pages long. [136] Mr. Holeksa's evidence with respect to the retainer letter was that during the review of the law firm's bill for work done in 2008 for the clients, which took place on February 18 and 19, 2009, the matter of the past fees and future retainer was settled. [137] Mr. Holeksa's testimony was that on February 18, 2009, he signed a Certificate of Fees. He testified that he was reasonably sure that Zora also signed the Certificate of

Fees that day. The certificate was then given to Zora. The clients had received the retainer letter given to them by hand, had discussed it at the meeting at Mr. MacAdams' office referred to in Mr. MacAdams' testimony, and had taken it away with them. [138] Mr. Holeksa's evidence was that the Fee Certificate and the retainer letter were returned to him on February 19, 2009, both apparently signed by Harinderpal, as well as by Zora. [139] Subsequent testimony by Harinderpal was that the purported signature of Harinderpal on that Fee Certificate, which bears some resemblance to what she subsequently confirmed were other documents signed by her, was not in fact signed by her. [140] I find that the document which was subsequently entered on March 4, 2009, the Certificate of Fees, was signed by Mr. Holeksa, by Zora, and while in Zora's possession or control and without the knowledge of Mr. Holeksa, had writing put on it resembling and purporting to be the signature of Harinderpal. [141] In commenting generally on Mr. Holeksa's evidence, I start with the proposition that the manner with which one testifies is not necessarily an indication of credibility. Mr. Holeksa gave his evidence in a straightforward manner. Most importantly, he answered questions in cross-examination directly. Sometimes those answers were contrary to his interest. He was forthright when being questioned on some

matters where he had made errors. He was generally forthright in admitting those. For example, when referred to note 118, he agreed that the statement was inaccurate in that it was too general and not specific enough. The Retainer Agreement [142] Mr. Holeksa testified that by letter dated February 9, 2009, the law firm and the clients entered into a written retainer agreement. The "re" line on the agreement reads as follows: "re: Various claims and defences regarding Harbans and Jasbir Grewal and other associated parties". [143] The letter goes on to confirm that the law firm is prepared to act for the clients in connection with the above-noted matters. The hourly rate set out as of the date of the agreement, February 9, 2009, is noted as being "$375". There is what I will call a fairly usual provision permitting delegation with the implication that delegation would be to persons charging less then that hourly rate. [144] In the same section it reads: Hourly rates are adjusted annually on or about January 1 of each year. You will be charged at the hourly rates from time to time in effect. The annual increases are generally between 0 and 5%. [145] Under the heading "Accounts" the following is written: Our normal practice is to render accounts at the end of each month. The accounts are due and payable upon receipt. We understand that your financial circumstances would not allow

you to pay our accounts on a monthly basis. Therefore, we are currently agreeing to defer the rendering of our monthly accounts until it is reasonably possible for you to pay the accounts. There may be a number of circumstances which will allow the accounts to be paid. For example, if we obtain release of a significant amount of funds or clear portions of the title of some property in which you claim an interest. At those times we will render the account to that time and require that it be promptly paid either directly through agreement of funds or by you taking a mortgage against a property. [146] The next section of the retainer agreement contains the following heading "Interest/Deferred Billing Charge". It sets out that when accounts are rendered on a monthly basis, if they are not paid within thirty days, interest is charged at an annual rate of 12% from the date of the bill compounded annually until paid. The typewritten letter has "18%", but that has been scratched out and 12% has been handwritten and initialled by Mr. Holeksa. Under the same section is the following: As we will be deferring billing you, we will add an additional amount that will reflect the interest charges that would have accumulated if we had sent monthly accounts to you. The deferred billing charge will be calculated at 1% per month of the unbilled work in progress and disbursements on the last day of

the previous month. [147] Again, the typewritten version has "1.5%", but that has been scratched out and 1% substituted in handwriting and initialled by Mr. Holeksa. [148] The retainer agreement covering the bills before me was contained in a letter dated June 19, 2008 delivered by hand to the clients. It is part of exhibit 3, tab 1, exhibit pages 13-18. The clients refused to sign it, refused to confirm that Zora had agreed that Mr. Holeksa's hourly rate was $375 per hour, claimed that the fees performed to date were unreasonable and refused to attend a meeting with a party knowledgeable in both legal matters and in the Punjabi language to discuss the concerns that clients had with Mr. Holeksa. Accordingly, by letter of July 30, 2008, he considered (properly in my view) that the solicitor-client relationship had been terminated and sent out Notices of Intention to Withdraw in all of the litigation which was on record. On February 9, 2009, Mr. Holeksa also provided, by hand, to the clients a further retainer agreement letter, essentially identical to the retainer agreement, which was ultimately signed by them, but it contained the interest inferred billing charge at 18%. [149] The next day, February 10, 2009, Mr. Holeksa sent an email to Dave Dhaliwal, an individual who was assisting the Grewals. According to Mr. Holeksa's testimony, which I accept, Mr. Dhaliwal worked for

Blackberry (research in motion) and this is confirmed by his email address which was ddhaliwal@rim.com. The email sent that day sets out the following: Just one further matter that I didn't have a chance to mention. I would like you to advise Zora and Harinderpaul that I charge regular hourly rate for my travel time. This is standard of course, because if I wasn't travelling, I would be working on other matters. When I acted for Zora before I was concerned that it was unusual that he was concerned about legal fees, but that he always wanted me to come to see him. I want to be certain that he understands that if I do that they will ultimately pay for that convenience. They can easily save money by attending at my office. [150] Two days later, Mr. Holeksa wrote again to Mr. Dhaliwal by email pointing out a number of concerns, including the fact that he had rendered accounts for $105,000 for the work he had performed in 2008, those accounts had not been paid and were set for assessment on February 18 and 19, 2009. The appointment for review of those bills formed part of exhibit 3. [151] Mr. Holeksa testified that he gave the retainer agreement that was ultimately entered into (it corrected the spelling of Harinderpal, the original had added a "u" as the second last letter) changed the interest rate as noted from 18% to 12% and from 1.5% per month to 1%, and, according to Mr.

Holeksa's testimony, the matter was discussed during a break in the review which was taking place before Registrar Blok (now Blok J.). During the break, Mr. Holeksa testified that there was a discussion and the clients agreed that they would sign the certificate and the amount claimed and would sign the retainer letter. Mr. Holeksa testified he went through the retainer letter in detail. The clients' position was that they would not sign the retainer letter until they could speak to Harminder. Mr. Holeksa gave the letter to Zora on February 18, 2009 and it was returned, signed by the clients. [152] Exhibit 13 is an Affidavit sworn August 13, 2017 at Abbotsford before Sahib Sidhu, a Notary Public. It contains an endorsement of an interpreter which sets out that the interpreter correctly interpreted it for the deponent [sic] (there are actually two deponents) from the English language into the Punjabi language and the deponent appeared to fully understand the contents. [153] In the Affidavit in paragraph 18, exhibit H identifies a copy of the March 4, 2009 Certificate of Fees and states "Zora agreed and signed the certificate of fees". Paragraph 19 through 21 are as follows: 19 Neither the Certificate of fees was presented to Harinderpal for her Signatures nor the Signature, appearing above the Signature line for Harinderpal, are Harinderpal Signatures. 20 On our instructions, in

late February, 2009, Harminder informed Guy that we not want Guy services and not want to signee the Retainer Agreement. Guy keeps forcing us to obtain his services and kept telling us that his legal fee will be very less in compare to what we cannot get without his legal services. Now produced and shown to us and marked Exhibit "I" is a copy of the letter from Guy to us dated April 22, 2009 translated in Punjabi language. 21 In answer to Paragraph 4 set out in the 1st Affidavit of Guy Holeksa sworn on 25th day of June, 2017 in this action (S175993), the Signatures on the Exhibit "A" attached to the Affidavit of Guy Holeksa sworn on 25th day of June, 2017 in this action (S175993) looks like our Signatures but we not agree that we Signed Exhibit "A" on or about February 19, 2009. [154] Exhibit A referred to in paragraph 21 is the fee agreement. Exhibit I referred to in paragraph 20 is the same letter that appears in exhibit 3 in these proceedings at tab 6, exhibit pages 10-13. [155] The English version of the letter is dated a day earlier, noted as being delivered and translated by interpreter, and is in the same exhibit and tab at exhibit pages 6-9. I have read the letter. It sets out why it is important that work be done to prepare for an upcoming trial. It confirms that there are what appear to be conflicting instructions from Harminder allegedly calling with instructions

from the clients advising that Mr. Holeksa was not to do any further work on the file. In the letter Mr. Holeksa writes as follows: Your case is complicated and requires a good lawyer who is experienced in complex trials. I would like you to have a competent lawyer. I do not particularly care if you continue to use me as your lawyer but if you don't use me, please use another lawyer. If for any reason you do not want me to act for you, I encourage you to terminate my services immediately and find another lawyer immediately as he or she will need time to properly prepare for trial. I would be happy to help them understand the file. [156] On the last page of the letter Mr. Holeksa writes as follows: 4. I require your instructions to proceed If you want me to act for you, please provide me with instructions to proceed. If you do not want me to act for you, please advise me so that I know. If you want me to act for you, but not do anything, please explain how you consider that is a correct approach. If you do wish to continue to follow this course, I may decide that I cannot continue as your lawyer. [157] Mr. Holeksa then concludes with advising that he is prepared to meet with the clients and someone who speaks fluent English and Punjabi and is experienced in legal matters. Mr. Holeksa then organized such a meeting. [158] At the pre-trial conference, the clients were permitted to

enter this Affidavit and so it has been marked as an exhibit. Mr. Holeksa, properly, advised that he required the clients to attend to be cross-examined on what is in the Affidavit. I accordingly ordered that the clients, Zora and Harinderpal, attend the next day. Zora attended the next day. Harinderpal did not. [159] The clients' evidence is that they did not sign the retainer agreement until December 29, 2016. That was the date on which Mr. Holeksa attended at the Grewal residence in Abbotsford to get an Affidavit signed in New Westminster Registry file S159668. That Affidavit has been marked as exhibit 20. The Affidavit contains an endorsement of interpreter. Derek, the clients' son, whose formal name is Diltaj Grewal, certified that he has a knowledge of the English and Punjabi languages and is competent to interpret one to the other, advised the deponent and believed that the deponent understands the Punjabi language, and correctly interpreted the Affidavit for the deponent, Zora, from English into Punjabi and that Zora, the deponent, appeared to fully understand the contents. The clients and Derek all testified that they signed another document that they believed to be the retainer agreement at the same meeting at their home in Abbotsford on December 29, 2016. [160] That directly contradicts the evidence of Mr. Holeksa. [161] Mr. Holeksa's evidence in summary, was that in

February 2009 he was not prepared to continue to act for the clients unless they signed a retainer agreement, and consented to a Certificate of Costs for the work that he had already done. [162] The clients called five witnesses. The first was Reena Gewal, who testified about some of the things and about her father looking shocked when he saw the size of the legal accounts. [163] The next witness was Reena Gewal's older sister, Sandeep Grewal. She testified as to her ability to communicate in English, her father's inability to communicate in anything other than Punjabi, and testified that she did not know when the retainer agreement was signed. She confirmed that she speaks English fluently. [164] The next witness was the clients' son, Derek. He testified that he is now 17 years of age and in grade 12. He testified that his knowledge of English is good and that his knowledge of Punjabi is good, but there are some things he cannot translate accurately. He testified that he and his father signed one document and his mother and father signed another document. [165] Exhibit 18 was put to him and he recalled that his parents signed a document with a box in it, although when questioned by me he could not recall whether it was the exact same document. He testified in cross-examination that he would open and translate some emails, but that his older sister, Sandeep, generally was the

one who would respond. He testified that the reason he was present on December 29 was because Sandeep was not able to attend. In cross-examination, he was unable to describe documents that he had signed. He was shown what was marked as exhibit 20, and confirmed that he signed that document as an interpreter, after interpreting it for his father, as he said "to the best of my ability". He reiterated that he could speak Punjabi, but had difficulty translating documents written in English into Punjabi. In cross-examination, Derek's evidence was somewhat confusing. Mr. Holeksa put to him that exhibit 20 was the only document signed. He initially replied there were two documents. [166] Mr. Holeksa persisted and the following exchange occurred: Exhibit 20 was the only document that was signed December 29, 2016 to which Derek replied "yes". [167] In re-examination, Derek went back to "those are the only documents signed", referring to exhibits 18 and 20. [168] Zora testified, with Mr. Bahia interpreting from Punjabi to English and English to Punjabi. Zora testified that he agreed to the Certificate of Costs signed in February of 2009 in the amount of $105,268.38, and then testified "the individual" (that was how Zora often referred to Mr. Holeksa throughout his testimony) agreed to fight his case for the same amount of money as agreed to on the Certificate of Fees signed by him. He

testified "He'll take $105,000.00 right up front and a similar amount further." When asked to clarify what work would be encompassed by the additional amount, Zora testified that whatever was required to resolve the dispute with Harbans would be done "from A-Z", according to Zora's interpreted testimony. [169] Exhibit 18, the retainer agreement, was placed before Zora and he was asked by his counsel "when did you sign exhibit 18?" The exhibit page was put to him. His answer, through the interpreter, was that "when the individual went to our house my daughter said that you have in your possession Harinder's case document." [170] When exhibit 20 was put in front of him, Zora testified that he was illiterate and did not know what he was signing. He did testify that he signed exhibits 18 and 20 on the same day after his son said "do it here and here". When asked if he understood what exhibit 18 was, he testified that they are Harminder's papers relating to the case the individual is going to bring about. Many of the questions he was asked in direct examination gave answers which were not responsive and which appeared to me to be rehearsed, although I only make that determination by recalling the words of the answer, as the necessity for interpretation makes it impossible for me to assess the responses in any other way. [171] When cross-examined about signing the retainer agreement

in February 2009, Zora testified that he did not remember being in court, then when asked again after being given further details, he testified about a document being given to the judge and a document he was told to sign by Harinder. [172] When asked when he signed exhibit 18, he said that it was in 2017 and then said he did not recall the date. [173] He was asked whether he kept a copy of the document he signed, said he did not and, when asked how he knew what document he signed when he had not kept a copy, he gave an explanation essentially reiterating the testimony he had given in-chief, which was that he was with his son, he signed two documents, his son told him where to sign, and then his wife signed one of the documents. He again referenced that the documents were with respect to Harminder's case. [174] He was asked about a Response to a Petition issued by the law firm and asked when and where he signed the Response to Petition. His response was "I am not sure where I signed or did or didn't." The response was marked as exhibit 21. [175] In re-direct, he was asked whether he knew what exhibit 21 was and responded "I don't know in terms of it, I just know my signature." [176] The last witness called on behalf of the clients was the client, Harinderpal. In-chief, she was asked whether she read exhibit 18 before she signed it and testified that "no, I read nothing." She

testified that with respect to English she knows "yes - no", but can barely read. She also referred to Mr. Holeksa as "the individual". She testified that she understood that total legal fees would be between $200,000.00 and $250,000.00. [177] She testified in effect that she was anticipating bills on a month-to-month basis. She testified that he [referring to Mr. Holeksa] had inserted so many false hours in the bills. [178] When asked how she arrived at the total amount of fees to be paid, she testified that Harinder had said that $105,000.00 was going to be paid at the onset and afterwards there will be $105,000.00 "that's what the individual was saying." [179] With respect to exhibit 18, she testified that her son called out to her to sign and she signed. She did not read exhibit 18 before she signed it. [180] She also testified that it was not her signature on the certificate. [181] In cross-examination, exhibit 22 was put to her and she identified several instances of her signature. [182] To resolve the issue of when the retainer agreement was signed requires an assessment of looking at the testimony of the witnesses in conjunction with reasonable probabilities, given other established evidence. [183] At the court proceeding on February 19, 2009 in New Westminster, in submissions made to the court, Mr. Holeksa, at that time, advised the court that Harinderpal had signed

the retainer letter, but was not in attendance that day in court. There was a discussion about both Zora and Harinderpal signing their consent to the certificate. [184] On February 19, 2009, Mr. Holeksa emailed Mr. MacAdams to say that he had returned to the New Westminster Court Registry that morning and received his retainer letter signed by both Zora and Harinderpal. The email went on to state that there was a consent Certificate of Fees which Mr. Holeksa had prepared and signed and that Zora had signed and was taking to Harinderpal to sign. [185] On February 21, 2009, Mr. Holeksa wrote a detailed letter setting out a settlement proposal made by Harbans. The letter also set out that the cost of running an action was $5,000.00 a day, and represented what I view as a detailed discussion of the issues in the Harbans' litigation. [186] The exhibits also show that on February 9, 2009, Mr. Holeksa emailed a copy of the retainer letter to Dave Dhaliwal, a lawyer and relative of Harinderpal. [187] There is other evidence throughout the litigation showing discussions back and forth. The methodology for these discussions was that Mr. Holeksa would send an email to Harinderpal's email address which would be received by Sandeep. It is apparent from reviewing the email correspondence that discussions took place between the clients and then Sandeep would email back to Mr. Holeksa with

instructions, comments and/or questions. [188] The suggestion that a lawyer with Mr. Holeksa's experience would agree to conduct all future proceedings for the same amount of money that he had billed for interim proceedings to date, makes no sense. While lawyers do give fixed price quotations for legal work, typically that is for work where the time expended can be predicted with a reasonable degree of accuracy, such as conveyancing, incorporations, drafting of simple wills and the like. I have never seen a situation where a lawyer charged with the defence of complex litigation has given a fixed price fee. [189] The testimony of the clients in that regard defies common sense, and I do not accept it. [190] It is apparent that what is deposed to in paragraph 20 of exhibit 13 about Mr. Holeksa "forcing us to obtain his services and kept telling us that his legal fee will be very less in compare to what we cannot get without his services" is false. I am satisfied that the law firm, through Mr. Holeksa fully and fairly advised the clients regarding the terms of the retainer, including giving the clients full opportunity to discuss the retainer. The certificate was not signed by Harinderpal. That is not something Mr. Holeksa would have known but it is, of course, something Zora would have known. He signed it and he provided the certificate to Mr. Holeksa. Harinderpal's "signature"

was placed on it when it was in Zora's possession. [191] Paragraph 21 of exhibit 13 deposes to facts in what I will characterize as a "cute" manner. The clients do not deny signing the retainer agreement. They confirm that the signatures "look like" the clients' signatures. They do not agree that they signed the retainer agreement on or about February 19, 2009. [192] His evidence with respect to the events surrounding the review of the law firm's fees in February 2009, the cessation of his retainer by the clients and then the circumstances around the presentation of the retainer letter and its ultimate signature by the clients, is corroborated to a considerable degree by his actions. [193] Simply put, he would not have continued to act unless the Certificate of Fees was signed and the retainer letter was signed. His testimony that he did continue to act and indeed geared up for the upcoming trial, is an action which corroborates his words, namely that he had received the signed retainer agreement. [194] After reviewing his cross-examination testimony, I do not see any instances where his testimony was successfully impeached. [195] I contrast that with the testimony of the clients and their son. [196] Zora epitomizes an unsophisticated client. He received basically no schooling, cannot speak English, and cannot read or write in English or Punjabi. His "signature" is at best

described as a mark, as opposed to writing. I do not say this in any critical way. It seems clear from the events which have unfolded here that he is a hard-working man who, along with his wife, obviously value the importance of education in their children. [197] I accept that in addition to being unable to read in either English or Punjabi, he has difficulty in fully understanding documents which are orally translated from English to Punjabi. [198] However, his evidence on the two key points he tried to prove (the fixed fee quote and the date of the retainer agreement) is not believable. [199] Any documents signed by him were provided as exhibits or parts of exhibits, including several Affidavits. Even when the purpose of the Affidavit was explained to him, he did not appear to understand its meaning. When cross-examination of him was undertaken by Mr. Holeksa, he rarely would give a direct answer. Far too often, the answer was not responsive to the question and was in an effort to tie-in either the reported agreement to do further legal work for the same amount as on the Certificate of Fees or tied into signing the retainer agreement in December 2016. It sounded rehearsed to me. [200] Harinderpal's evidence was, if anything, worse in that regard. Instead of answering questions which could have been answered rather simply, she would launch into what were in effect submissions.

She rarely gave a direct answer to a question which could be answered directly, even after I reminded her of her obligation to just answer the question. Unresponsive answers were not only given in cross-examination, they were often given in direct examination. For example, she was asked about her reaction when she found out the total size of the legal fees accounts. Her response was that she just found out last year, and that Mr. Holeksa told us nothing. She was asked again what her reaction was. She answered that she did not discuss this. The matter was discussed with her husband. [201] I do accept that it was not her signature on the Certificate of Fees, but that does not assist the clients. Her name was written above where it is printed on that certificate while the document was in the possession of Zora.

THE LAW [202] I have no hesitation in saying that the clients, Zora and Harinderpal, are basically polar opposites of the client in the Commonwealth Investors Syndicate case. [203] It is not common for clients to obtain independent legal advice when signing retainer agreements. When I have sat on LPA reviews, I have never had a retainer agreement provided to me where the client had obtained independent legal advice. [204] What is important is for the client to understand the retainer agreement. In this case, the retainer agreement was explained word-by-word utilizing a Punjabi interpreter. That was Mr. Holeksa's evidence, and I accept it. After it was explained, the clients did not sign the agreement. They took it away. Nine days later they brought it back signed, after Mr. Holeksa told them that he would not continue to act for them unless he had a signed retainer agreement. [205] Furthermore, the initial draft of the retainer agreement, which contained the unusual provision of not rendering a payable account to the client until the client had the means to pay, also contained a provision for calculating interest compounded annually on the amount of legal work done in each calendar year. The interest rate was negotiated from 18% down to 12%. [206] In this case, even given the significant difficulties with the clients and especially Zora, in that neither of them could easily

read and understand English, and Zora was totally incapable of reading in any language. However, he had full opportunity to discuss with his brother, Harminder, with his wife, and presumably anyone else he trusted. [207] It is noteworthy that the agreement was provided to Harinderpal's brother's brother-in-law, Dave Dhaliwal, who is a lawyer. The evidence is uncontradicted that the retainer agreement was provided to him. Thus, even though there is no requirement for independent legal advice, the clients had full opportunity to get such advice. [208] The evidence with respect to the signing of the retainer agreement is in accord with Mr. Holeksa's testimony. It was signed in February of 2009. It was signed by both clients after it had been given to the clients following a meeting at Mr. MacAdams' office when an interpreter was present to translate the agreement. A copy of the agreement was provided to a lawyer who is a relative of Harinderpal's before the retainer agreement was signed. Mr. Holeksa made it clear, in view of previous issues with payment of his accounts, that he was not prepared to continue to act without a signed retainer agreement.

ANALYSIS [209] There are aspects of how Mr. Holeksa proceeded which cause me difficulty. [210] The retainer agreement provides that hourly rates are adjusted annually on or about January 1 of each year with annual increases generally between 0% and 5%. [211] Although the average of all annual increases was less than 5%, in Mr. Holeksa's reply submissions he concedes that the increases were 6.7% from 2009 to 2010, 8.7% from 2010 to 2011, and 5.1% from 2015 to 2016. [212] He has also done a calculation comparing fees that would be charged if a fee of $375.00 per hour was charged throughout, but the delayed billing charge was also added to the fee billed. On the "03" bill, the CRA matter, he submits that the delayed billing charge, if added, would exceed the fees billed if they were billed at $375.00 an hour by $2,876.75. [213] Using the same parameters with respect to the Bank of Montreal bill, there would be a difference of $4,067.00. [214] With respect to file "10", the Farm Credit foreclosure file, the fees billed would have exceeded fees notionally charged at $375.00 per hour, plus the addition of the delayed billing charge by $6,228.00. With respect to the Harminder file, "05", the fees billed exceeded a notional billing at $375.00 per hour, plus the delayed billing charge by $47,474.00. [215] On the file on which the significant bulk of fees were billed, the Harbans' file,

"01", had the fees been billed notionally at $375.00 an hour and the delayed billing charge added, that amount would have exceeded the fees billed in the final bill by $238,129.25. [216] The law firm submits that, when those are totalled, the net effect of not charging the delayed billing charge is a reduction of $191,371. [217] In hindsight, it would have been preferable for the law firm to render interim accounts, even if they were not payable, at the conclusion of each year. It would have been preferable to advise the clients of the new fee rate. [218] I have taken all of this into account in reviewing the five bills. I have also considered the factors set out in s. 71 of the LPA. [219] I am satisfied that all of the work done was reasonably necessary and proper to conduct the proceeding or business to which they relate.

LEGAL PROFESSION ACT [220] Section 64 defines, amongst other things, "agreement". Section 71 sets out the matters I am to consider on a review. I must allows fees, charges and disbursements for services reasonably necessary and proper to conduct the proceeding or business to which they relate. I may allow fees charges and disbursements, even if unnecessary for the proper conduct of the proceeding or business to which they relate if they were reasonably intended by the lawyer to advance the interest of the client at the time the services were provided. [221] All of the fees have been itemized in the sense that for every charge on the five bills there is a description as to what was done. In addition, Mr. Holeksa testified in some detail with respect to all five of the bills. I conclude that the services provided were reasonably necessary and proper to conduct the proceeding or business to which they relate. Therefore, subject to my considerations of the circumstances set out in ss. 71(4), I must allow those fees, charges and disbursements. Conclusion [222] Looking simply from the perspective of time reasonably spent and whether the rate charged in the retainer agreement was reasonable, and factoring in the other matters set out in s. 71(4) of the LPA, there are factors which require some reduction, in particular the bill on file 001 relating to disputes with Harbans and the bill

on file 004 relating to the dispute with Harminder. [223] There was specific discussion about travelling from Mr. Holeksa's office to the clients' residence and billing for travel time. Mr. Holeksa's evidence is that he could have worked on other files during that time. However, there is a limited amount of time a lawyer can productively put in during a day. Travel time is often charged at half the regular rate. That is a factor. [224] It is important to keep in mind that, while this was not a contingency fee, the law firm bore the entire cost of the legal proceedings until funds were available. [225] In analyzing the fees, I think that the way the contract was written obligated the law firm to advise the client annually of the amount of fees incurred in each calendar year and to advise the client whenever the hourly rate basis for the legal fees changed. Neither of those were done. [226] The increase in hourly rates was not communicated by the lawyer to the clients. The hourly rate charged to the clients increased significantly over the time the law firm was retained by the clients, and at times exceeded 5% per annum. [227] However, this was not a case where there was some bonus billing. Most significantly, this was also not a case where the law firm attempted to charge any interest, even though under the terms of the retainer agreement it might have been able to do so. It

carried the entire cost of the litigation throughout. [228] In 567 Hornby Apartment Ltd. v. le Soleiil Hospitality Inc., 2016 BCSC 1340, Registrar Cameron initialized a "global approach" in determining special costs. Similarly, I use that approach in determining a fair fee for each of the bills after considering the relevant factors I have set out in these reasons. [229] Accordingly, I allow the bills as follows: 1. Invoice 96520 was presented at $1,214,293.90. $7,875 of fees was inadvertently duplicated from the interim account rendered and paid in October 2016. Applicable taxes should be added to that amount. 12% of $7,875 is $945. When added together, those total $8,764. I have deducted that amount from the total fees and other charges and disbursements and taxes rendered on the bill, to arrive at $1,205,529.90. Considering all factors I allow that bill at $1,150,000.00, in addition to the $181,829.94 which has been paid; 2. The bill on file 003 is allowed as presented at $7,543.68; 3. The bill on file 004 is presented at $225,309.63. That is not justified given the amount in issue. However, the work was done and success achieved. I allow that bill at $200,000.00; 4. The bill on file 005 is allowed as presented at $23,915.49; 5. The bill on file 010 is allowed as presented at $37,732.80. [230] The law firm is entitled to its costs at Scale B and to interest from the date the

lawyer delivered the bill to today's date at the same rate as would be allowed under the Court Order Interest Act on an order obtained by default, presently 2.7% per annum. [231] If agreement can be reached on those amounts, the law firm can present a certificate to me. If there are disputes, counsel should advise the registry and the matter can be spoken to. I remain seized until a certificate has been signed. "Master R.W. McDiarmid" MASTER McDIARMID