IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101004

Docket: 43988

Registry:
Kamloops

Between:

David
Ford Baxter

And

Mary
Fus Law Corporation

Before:
Master Shaw

Reasons for Judgment

[1]            
This is a registrar’s review pursuant to s. 71 of the Legal
Profession Act, S.B.C. 1998, c. 9 [LPA] of two bills for legal fees
and disbursements charged by Mary Fus (the “lawyer”) of the law firm, Mary Fus
Law Corporation, to the client, David Baxter (the “client”).

[2]            
The two bills are:

1)    December 29,
2009, for services rendered between April 22, 2008 and December 22, 2009. The
fees are $8,110.00. The disbursements are $675.76 for taxable disbursements,
and $758.00 for non-taxable disbursements. Including taxes, the bill totals
$10,551.35;

2)   
January 25, 2010, for services rendered between December 29, 2010 and
January 25, 2010. The fees are $2,760.00 and the disbursements are $154.00 for
taxable disbursements. Including taxes, the bill totals $3,252.90.

[3]            
The total of the two bills is $13,804.25.

BACKGROUND

[4]            
The application was taken out on March 2, 2010. A pre-hearing conference
was held on March 24, 2010. The matter was heard on May 10, 2010 and June 25,
2010.

[5]            
The client contacted the lawyer in April of 2008 in relation to a motor
vehicle accident he was involved in on August 31, 2007.

[6]            
The client describes the accident as involving a “Super B” logging
truck, which hit some hydro pole lines. The hydro lines extended across the
Yellowhead Highway No. 5 and Halston Road intersection, and the logging truck
caused one of the hydro poles to come down on the client’s vehicle.

[7]            
The client alleges he suffered injuries and as a result had a cervical
fusion.

[8]            
As the client was on his way to work when the accident occurred, one of
the issues that must be resolved in the accident is whether or not the case is
covered by Worker’s Compensation.

[9]            
The lawyer filed a writ and statement of claim for both the Part 7 claim
and the tort action on April 9, 2009. The first statement of defence was filed
on May 25, 2009, and an amended statement of defence was filed on August 14,
2009.

[10]        
A date for an examination for discovery was arranged for December of
2009, but this date was cancelled at the request of the client.

[11]        
A trial date was taken out.

[12]        
On January 22, 2010, the client retained new counsel. The client
authorized the lawyer to send his file to the new counsel.

FEE ARRANGEMENT

[13]        
The lawyer and the client did not enter into a written fee agreement.

[14]        
The lawyer spoke to the client about the option of a contingency
agreement, or an agreement for the payment of fees on an hourly basis. The
client never signed an agreement, nor did the lawyer and client ever come to a
verbal agreement.

[15]        
The client submits that when he received the first bill of December 29,
2009, he contacted the lawyer and discussed with her the fact that there was no
fee arrangement agreed to. The client says the lawyer advised him that she made
the decision for him and her bill is based on an hourly rate. The client does
not dispute that is what the lawyer did.

[16]        
The client’s evidence is he never knew from the lawyer what her hourly
rate was.

[17]        
The lawyer says, at para. 11 of her affidavit of justification:

In our first meeting, Mr. Baxter
had brought me notes from other lawyers, including an outline of damages he
could expect to receive, and a contingency agreement from Mr. Zak. That
agreement provided that if he was discharged, he would be paid at $300.00 an
hour and Mr. Baxter wanted to know if I thought that was reasonable. I told him
that that was very reasonable for someone of a 28 year call. Mr. Baxter asked
me what I charged and I said $250.00 an hour but it is going up to $300.00 an
hour.

[18]        
The lawyer did not have any file notes of a discussion with the client,
nor a letter to the client that sets out what the hourly rate discussions were
with the client. The bills sent by the lawyer do not set out an hourly rate.
Eventually, as a result of the pre-hearing, materials were produced that
disclosed the hourly rate charges.

[19]        
When the client would not sign a contingency agreement, the lawyer
proceeded to send a bill charging the client fees based on an hourly rate.

ISSUES

[20]        
The issues in this review are:

1)    what is a fair
fee for the work provided to the client by the lawyer?

2)   
what are the disbursements that can be charged by the lawyer to the
client?

AUTHORITY

[21]        
In Nathanson, Schachter & Thompson v. Inmet Mining Corp.,
2009 BCCA 385, the court for the majority of the Court of Appeal, at para. 46,
state:

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.

[22]        
That statement applies to this case. The lawyer and client never reached
an express agreement concerning payment. The lawyer’s fee is to be assessed on
the basis of a “fair fee” by consideration of the factors set out in s. 71(4)
of the LPA.

[23]        
Section 71(4) of the LPA states:

(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.

REASONABLE FEES AND DISBURSEMENTS

[24]        
The lawyer states her charges are based on an hourly rate. The hourly
rate charged was $250.00 per hour for the first-time entry on the bill dated
December 29, 2009. The first-time entry is dated April 22, 2008, and is for a
telephone call from and to the client. The lawyer then increased her hourly fee
to $300.00 per hour. The lawyer states she advised the client verbally that her
hourly rate was $250.00 at the time of the discussion, but going up to $300.00
per hour. The client says he never knew how much the hourly rate would be, and
further, he never knew nor agreed to any increase in the hourly rate of the
lawyer to be charged to him.

[25]        
The client submitted the lawyer’s bills include charges for tasks that
the client describes as “normal functions” such as telephoning back and forth
to different people, communicating with them, or other tasks that should not be
billed as legal services. One example was a charge by the lawyer for a computer
search for online tracking. The client argues these types of tasks should be
done by a secretary and not billed at the lawyer’s rate.

[26]        
The lawyer’s evidence is she billed for what she did, and that she did
not bill for her staff’s work.

[27]        
On reviewing s. 71(4) of the LPA, and the factors set out in (a)
through (h):

(a) the complexity, difficulty or novelty of the issues involved

[28]        
This case is reasonably complex given the Worker’s Compensation issue,
the causation of the accident issue and the nature and quantum of damages of
the client’s injuries, as well as a business loss claim.

(b) the skill, specialized knowledge and responsibility required of the
lawyer

[29]        
The lawyer has been practising law for 30 years. She has appeared in
Supreme Court and the Court of Appeal. She practises primarily in the areas of
personal injury, family and estate law. The client argues the lawyer was unable
to provide him with an estimate or range of quantum of damages for his claim.
The lawyer gave evidence that an estimate was not available as the client was
still providing business information.

(c) the lawyer’s character and standing in the profession

[30]        
The lawyer has been in the community for five years. There is no issue
taken with respect to either the lawyer’s character or her standing in the
legal profession.

(d) the amount involved

[31]        
There was no evidence with respect to the amount involved. The client
does provide evidence that he “has been hurt quite badly so the amount involved
is probably significant”.

(e) the time reasonably spent

[32]        
The client argues he should not be charged for packing up the file or
other minor charges. The lawyer has charged for over 27 hours of work on the
bill dated December 29, 2009, and 9.2 hours on the bill dated January 25, 2010.
The lawyer submitted she did work in addition to what she billed for, estimated
to be more than 10 hours of unbilled work.

(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

[33]        
There was no fee agreement.

(g) the importance of the matter to the client whose bill is being reviewed

[34]        
The client states his claim is very important to him.

(h) the result obtained

[35]        
The client terminated the lawyer’s retainer before the matter was
concluded. The writ and statement of claim were filed for both the Part 7 and
the tort claim. Discoveries had not been done, although scheduled and then
cancelled. An expert had been retained, but the appointment was cancelled when
the file was transferred. Meetings and investigations for the claim had been
done, including gathering of medical records. Initial investigations with
respect to the business loss were underway. A trial date had been set, but at
the time the file was transferred, the file was not ready for trial.

[36]        
Having given consideration to all of the circumstances, the factors
identified and the submissions of the lawyer and the client, I conclude that
the appropriate fee for the two bills for services from April 22, 2009 to
January 25, 2010 inclusive, is $8,000.00, plus appropriate taxes.

DISBURSEMENTS

[37]        
The lawyer provided an affidavit from Ms. Senner, one of her staff, for
evidence in relation to the billing of disbursements.

[38]        
For the bill of December 29, 2009, the disbursements are:

[39]        
The disbursements for the bill dated January 25, 2010 are:

[40]        
On the bills initially sent to the client, the dates when the disbursements
were incurred are not provided.

[41]        
I will deal with the disbursements on the two bills in global amounts as
follows:

a)    the court filing
fees of $208.00 x 3 filings for a total of $624.00 are approved;

b)    long distance
charges of $5.00 are approved;

c)     postage
charges of $23.00 are approved;

d)    with respect to
fax charges, the evidence is the lawyer charges, for outgoing faxes $15.00 for
the first page, and then $1.00 per page thereafter. For incoming faxes, the
lawyer charges $10.00 for the first page, and then $1.00 per page thereafter.
The evidence is the charge is to cover long distance charges and printing
costs. The total charge for fax expense for the two bills is $401.00. The allowance
for fax charges is 35¢ per page, plus long distances charges. The lawyer did
not provide any evidence as to how many pages were faxed out or were received
by fax. I will allow $50.00 for fax charges. The lawyer did not provide any
evidence on long distance charges associated with faxes. There will be no
allowance for long distance charges in relation to faxes.

e)    with regard to
photocopies, the evidence by Ms. Senner is that the lawyer charges $1.00 per
page for photocopies. The allowance is 35¢ per page. Ms. Senner states that of
the $264.96 in photocopying charges on the two bills, $188.96 was paid to third
parties for copies of records. I allow the $188.86 in photocopying charges as
the amount paid to third parties. That leaves $76.00 charged for photocopies
and at $1.00 per page that is 76 copies. I allow 76 copies at 35¢ per page for
a total of $26.60. The total for photocopies will then be $215.56.

f)      I
allow $18.50 for online company searches.

g)    I allow $250.90
for medical records, such amount paid to third parties.

h)   
I allow $33.00 for printing costs for various email documents.

SUMMARY

[42]        
For the two bills dated December 29, 2009 and January 25, 2010:

1)    Fees will be
allowed at $8,000.00, plus applicable taxes;

2)   
Disbursements will be allowed as follows:

[43]        
The account has been reduced by an amount exceeding 6% of the original
bill and, therefore, the client shall have his costs. I summarily set the costs
at $750.00, inclusive of disbursements and taxes.

“Master M.E. Shaw”

MASTER SHAW