Thompson Valley Law Corp. v. Morriss

2011 BCSC 1354 Thompson Valley Law Corp. v. Morriss

IN THE SUPREME COURT OF BRITISH COLUMBIA Pursuant to the Legal Profession Act Citation: Thompson Valley Law Corp. v. Morriss, 2011 BCSC 1354 Date: 20111011 Docket: 45825 Registry: Kamloops Between: Thompson Valley Law Corporation dba Burke Frame Lawyer And Sean Morriss Client - and - Docket: 46091 Registry: Kamloops Between: Thompson Valley Law Corporation dba Burke Frame Lawyer And Sean Morriss Client Before: Master McDiarmid Reasons for Judgment Counsel for the Lawyer: J. Frame J. Shidei No one appeared on behalf of the Client: Place and Date of Hearing: Kamloops, B.C. September 14, 2011 Place and Date of Judgment: Kamloops, B.C. October 11, 2011 [1] By appointment dated August 11, 2011 and filed August 12, 2011, Thompson Valley Law Corporation doing business as Burke Frame ("Burke Frame") took out an appointment for review of the bills of Burke Frame issued to the client, Sean Morriss. [2] On August 10, 2011, Master MacNaughton granted Burke Frame leave to serve Sean Morriss with the appointment and filed materials by way of email, to an email address specified in that order. [3] Marked as exhibit "1" in Kamloops court file #45825 is affidavit #2 of H. Cornies confirming that the documents were emailed. Attached to the affidavit as exhibit "B" is a confirmation of successful delivery notification. [4] Marked as exhibit "1" in Kamloops court file #46091 is affidavit #1 of H.

Cornies. Attached to that affidavit as exhibit "B" is a confirmation of successful delivery notification. [5] As there had been considerable materials served, I inquired of counsel whether the client's hotmail account would facilitate delivery of significantly large attachments, and was told that during the course of the client's retainer, he had advised that he did have the ability to receive large attachments at his hotmail account. [6] Accordingly, I am satisfied there was service of the appointments and related materials, and the review of the accounts proceeded. [7] Mr. Morriss, the client, did not attend. [8] Mr. Frame testified. He identified a binder entitled "Lawyer's Book of Documents" which has been entered in the 45825 proceedings as exhibit "5". Exhibit "5" consists of 561 pages of photocopied documents. Pages 1 through 4 are a retainer letter dated March 12, 2010, wherein Sean Morriss agreed to retain Burke Frame on the basis of various hourly rates set out in the document. The retainer letter explains that GST, PST, disbursements and interest are billable. Reasonable explanations for various items to be billed accompany the breakdowns of billable items. The letter also sets out in some detail the past work performed, with particulars of Mr. Morriss' outstanding account (as of the date of the letter) totalling $65,000. The fourth page of the retainer agreement

letter contained a signing block; Sean Morriss accepted the terms and conditions of the retainer letter by signing and dating the acceptance on March 12, 2010. [9] Affidavits were entered into the record as exhibits satisfactorily verifying all of the claimed disbursements. As will be seen from these reasons, I have not allowed one category of disbursements. Apart from the specific disallowance referenced later in this decision, I am satisfied that the disbursements billed on the accounts were necessary and proper. [10] While the retainer letter referenced "Claims Against Crown for loss of Mines", Mr. Frame testified that he rendered accounts on behalf of Burke Frame to Mr. Morriss for two other matters. Court File #46091 [11] Accounts on this file dealt with litigation commenced by the client relating to real estate in Whistler, British Columbia. The lawyers' internal file number is 13-37-04. [12] Prior to the lawyer being retained by the client, costs were awarded against the client in three actions. Mr. Frame was able to negotiate a settlement of two of the cost orders, together with terms of repayment. The third order resulted in an award of costs against the client in the amount of $69,600.00, plus HST, and $104,400.00, plus HST: See Morriss v. Prism Properties Inc., 2011 BCSC 615. [13] I have reviewed work done by Mr. Frame. Mr. Frame had to get "up to speed" on a 16

volume joint chambers record in order to attend in court and argue against the claim being made against the client for lump sum costs. [14] Two accounts were rendered totalling $36,244.61. The accounts reflect a payment made by the client in the approximate amount of $10,000.00. This amount was then in effect disbursed back out to pay one of the negotiated costs awards. In reviewing the accounts in court file #46091, I have considered the evidence of Mr. Frame, both given viva voce and in his affidavit, which was marked exhibit "2" in file #46091. [15] In particular, I note that the matter was novel to Mr. Frame, required significant effort and time, and had mixed results in that the client was unsuccessful on the application before Madam Justice Gropper, but on the other hand Mr. Frame had negotiated resolution of some issues to the client's benefit. [16] The pre-billing information appended to exhibit "2" at tab "T" showed 43 hours of time expended by Mr. Frame up to the end of February 2011, and another 4.5 hours in March 2011. Those hours, at the agreed upon rate of $350.00 per hour, would calculate to $16,625.00. The corresponding portion of the accounts attributed to Mr. Frame's time totalled $19,855.00. [17] The accounts included $99.50 charged for binding. This was not contracted for in the retainer agreement, and it is part of overhead, presumably factored-in in

determining the hourly rates charged to the client. [18] In the circumstances, I have reduced the accounts to correspond to the pre-billing information. I have also reduced the accounts by $99.50, plus HST. This results in a total reduction of $3,329.50, plus HST, which is a total reduction of $3,729.04. Court File #45825 [19] Mr. Frame testified that the work done with respect to the accounts presented under this file comprised three matters. These will be referred to by the lawyers' file numbers 13-37-01, 13-37-02 and 13-37-03. [20] The first, lawyers' file 13-37-01, representing accounts totalling $74,454.36 less a $5,000.00 payment, were accounts billed in connection with claims by the client against the Crown for loss of mines (mineral claims). The second set of accounts presented at $18,504.22, relate to defending an application for leave to appeal an interlocutory order. The third set of accounts totalling $23,632.81 relate to an appeal from the order of Madam Justice Gropper (the same order which resulted from the decision referenced in para.

12. Lawyers' File 13-37-01 [21] Mr. Frame testified that he was retained to sue the provincial government for cancellation of mineral claims owned by the client in the Stein River Valley. A park had been created and the claims were cancelled. The client felt that the value of the claims was in the vicinity of $23 million. After the claims had been cancelled through the creation of the Stein Park, the area was re-opened for mining. In effect, the client was seeking compensation for what he viewed as expropriation of his mining claims. [22] Mr. Frame testified that the client showed up with nine banker's boxes full of documents and that there were "lots of other documents". There were significant issues, including Limitation Act issues. [23] Mr. Frame testified that he was successful in staving off Crown applications to have the litigation dismissed. Mr. Frame was in the process of proceeding to negotiate, or alternatively, gear up for litigation, when he found out that his client had neglected to tell him that the claims had been mortgaged and foreclosed. The mortgagee was deceased. As a consequence, the underpinning of the client's claim was destroyed and the action was dismissed. [24] The case was undoubtedly complex. The accounts were well detailed and show the time expended by the various lawyers and paralegals working on the file. [25] A review of the file shows some

duplication of time, such as conferences between lead counsel, Mr. Frame, and junior counsel, Mr. Shidei. [26] Exhibit "5", the lawyer's book of documents, contains an amended statement of claim which was permitted to be amended by court order. The file also contains the Crown application to strike out the statement of claim, an application to further amend the statement of claim, together with a draft statement of claim that is well drafted to carefully plead the claims of the client. There are written arguments which show the significant opposition to the client's action being mounted by the defendant Crown. The applications came on for hearing before Mr. Justice Wong in May of 2009. Following a two-day hearing, the plaintiff was successful in obtaining leave to file an amended statement of claim. The reasons for judgment commence: I am grateful to both counsel for their full submissions. I might say that both counsel have said all that can be said in regard to their respective party's position. [27] The accounts include over $9,000.00 of billings referenced to junior lawyers. Most of those billings appear to me to be necessary and proper as they involve appropriate assistance with the progression of the client's claim. However, some of the time entries appear to be a duplication for which the client ought not to be billed. In my opinion, the accounts ought to be reduced in

aggregate by $2,000.00. [28] As noted in para. 17 above, in my view, binding is not contracted for in the retainer agreement and is part of overhead. Exhibit "E", exhibit page 14 to exhibit "3", the first affidavit of H. Cormies, shows that the client has made three payments totalling $25,000.00. This is also reflected in exhibit "Q", exhibit page 102 to the first affidavit of Shannon McEwing entered as exhibit "2A". [29] The accounts rendered with respect to the mineral claims issue total $74,454.36. I deduct the binding charge of $289.25 and $2,000.00 in fees for a total of $2,289.25. When tax is factored in, that represents a total deduction of $2,563.96. I also note that the client acknowledged a balance of $61,322.34 plus interest of $3,677.66. [30] I, therefore, allow the mineral claims exploration accounts at $71,890.40. These are the fees, charges, disbursements and taxes for the services reasonably necessary and proper to conduct the proceeding or business to which they relate (the mineral claims issues), having considered all of the circumstances, including the factors set out in s. 71(4) of the LPA. [31] The lawyer's records show that a total of $35,021.48 has been paid so that $36,868.92 is the balance allowed on lawyers' file 13-37-01. Lawyers' File 13-37-02 [32] This file dealt with successfully fending off a leave application which sought to appeal Justice Wong's

decision. The lawyers' file also dealt with some ancillary matters. The fees were all billed at the agreed upon rate of $350.00 per hour. Success was achieved. There were some incidental matters billed under this file at the request of the client. I allow the accounts as presented at $18,504.22, which are fees, charges, disbursements and taxes for the services reasonably necessary and proper to conduct the proceeding or business to which they relate, having considered all of the circumstances, including the factors set out in s. 71(4) of the LPA. Lawyers' File 13-37-03 [33] These accounts are for a file called "Appeal of Gropper J. Decision". This was not the decision referred to in para. 12, but rather accounts relating to an appeal initiated by the client acting on his own from earlier decisions rendered in 2010 by Madam Justice Gropper. After reviewing the materials, Mr. Frame wrote to Mr. Morriss, providing the opinion to Mr. Morriss that the appeal was "profoundly, entirely and without qualification hopeless". Mr. Frame went on to explain why. [34] The accounts reflect that Mr. Frame spent over 56 hours of time reviewing banker's boxes of materials. [35] Hindsight is 20/20, obviously. Although there was a great volume of material reviewed by Mr. Frame, the key documents were the reasons for judgment of Madam Justice Gropper in Morriss v. Prism Properties Inc., 2010 BCSC

454, which reasons were rendered in two actions on April 6, 2010, following two days of hearings in 2009, and Morriss v. Cuttler, 2010 BCSC 1288, a judgment rendered September 14, 2010, following a hearing on June 11, 2010. Obviously, Mr. Frame had to familiarize himself sufficiently with materials, but in the circumstances the time expended seems somewhat excessive to me. Reviewing the factums was reasonably necessary and proper. I would allow 40 hours of fees for the services set out in file #13-37-03. That equates to $14,000.00 in fees. The accounts reflect fees charged of $20,724.00. Thus, I reduce those fees to $14,000.00, a reduction of $6,724.00. When HST is added, that is a reduction of $7,530.88. [36] I, therefore, allow the accounts at $16,101.93, which are fees, charges, disbursements and taxes for the services reasonably necessary and proper to conduct the proceeding or business to which they relate having considered all the circumstances, including the factors set out in s. 71(4) of the LPA.

SUMMARY [37] On court file #46091, accounts are allowed at $32,515.57, which are fees, charges, disbursements and taxes for the services reasonably necessary and proper to conduct the proceeding or business to which they relate, having considered all of the circumstances, including the factors set out in s. 71(4) of the Legal Profession Act, S.B.C. 1998, c. 9 [LPA]. [38] Interest on that sum in the amount of 12% per annum, calculated from April 1, 2011 to today's date, October 11, 2011, is allowable. A certificate will issue, effective today's date, for $32,515.57, together with interest calculated as set out and lump sum costs in the amount of $350.00. [39] On court file #45825, accounts on three lawyers' files were claimed. The total fees, charges, disbursements and taxes claimed amounted to $116,591.39, less payments made. I have reduced the accounts on lawyers' file 13-37-01 by $2,563.96. Lawyers' file 13-37-02 was presented and allowed in full at $18,504.22. I have reduced the accounts on lawyers' file 13-37-03 by $7,530.88. That is a total reduction of $10,094.84. Therefore, on court file #45825, accounts are allowed at $106,496.55, which are the fees, charges, disbursements and taxes for the services reasonably necessary and proper to conduct the proceeding or business to which they relate in the three files. The $35,021.48 in payments are deducted from this amount, resulting in a net amount allowed of $71,475.07. [40] Interest on the sum of $71,475.07 in the amount of 12% per annum, calculated from April 1, 2011 to today's date is allowable. A certificate will issue, effective today's date, for $71,475.07, together with interest calculated as set out above and lump sum costs in the amount of $1,000.00.

COSTS IN BOTH FILES [41] I have not heard submission on costs. I have awarded lump sum costs on both court files as set out above, pursuant to Rule 14-1(15) and s. 72(1)(6) of the Legal Profession Act, S.B.C. 1998, c.

9. If the lawyer wishes, liberty to make further submissions on the costs awards is granted. "R.W. McDiarmid" MASTER McDIARMID