IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151119

Docket: S156004

Registry:
Vancouver

Between:

Michael G.
Armstrong Law Corporation

Solicitor

And

Erin Turner

Client

Before: Master Baker

(Sitting
as Registrar)

Reasons for Judgment

Table of Contents

ISSUE. 3

BACKGROUND. 3

PARTIES’ POSITIONS. 7

The client 7

The solicitor 8

ANALYSIS. 9

Complexity. 12

Skill and specialized knowledge. 12

Character and standing. 13

The amount involved. 13

The time reasonably spent 13

Agreed rate. 13

Importance. 13

Results. 14

ISSUE

[1]
These are proceedings brought by the Solicitor under s. 70 of the Legal
Profession Act[1]
for the review of his account to Ms. Turner dated December 16, 2014. The
account is for $4,840 fees and $5.10 disbursements; with taxes the total is
$5,426.16. The entire amount remains outstanding and is disputed by Ms. Turner.

BACKGROUND

[2]
Ms. Turner was injured in a motor vehicle accident (“MVA”) in Richmond,
B.C. on March 11, 2010, when the car she was driving was struck by another
vehicle. She retained counsel whom I will refer to as her MVA counsel.
Liability in that matter was very much in dispute. Ms. Turner was entering No.
5 Road from a parking lot and was attempting to cross No. 5 Road’s two
southbound lanes so that she could turn left onto its northbound lane when she
was struck. She alleged that the defendant caused the accident by speeding.

[3]
Liability was severed from damages and Mr. Justice Goepel tried the
issue in a four day trial in August 2012. Each side retained an expert to
estimate the other vehicle’s speed, as that aspect was pivotal to the
negligence question. Each used an impact analysis to estimate the speed. Goepel
J. decided, however “I cannot conclude, based on the expert evidence, that Mr. [D]
was speeding prior to the accident” In the end he concluded that Ms. Turner was
75% responsible for the accident and the defendant 25%.

[4]
Ms. Turner was, not surprisingly, disappointed by this result. Her
father was a mechanic and had told her that the make and model of vehicle that
struck her should have had a “black box” that would have recorded the vehicle’s
speed with much more certainty and would have, she felt, corroborated her
version of events. The MVA counsel, apparently, never investigated the issue
and never took steps to recover or examine the black box.

[5]
Nevertheless, the finding was not appealed and matters progressed.
Eventually in April 2014, ICBC made a settlement offer of $153,000.00. The
offer was time-limited, but on April 10 her MVA counsel obtained an extension
on the offer until 4:00 p.m. April 16. Her MVA counsel met with her and advised
her that when all deductions were made for their fee, disbursements, costs,
advances, and interest on a settlement loan, she would receive $12,000.00. She
was understandably shocked by this. Her MVA counsel had, at that meeting,
provided her with a handwritten list of deductions, all rounded. She asked for
a more detailed and supported list of deductions and the meeting ended.

[6]
This is the point at which Ms. Turner consulted Mr. Bolan. Her mother
first called Mr. Bolan on her behalf on April 9, 2014, and Ms. Turner also
talked to him on the phone. Mr. Bolan understood from the conversations that
the issues in Ms. Turner’s mind were the lack of detail or corroboration
of the deductions, the ICBC deadline, and the black box and the MVA counsel’s
failure to investigate that issue. He immediately contacted an engineer he
knew, confirmed that the vehicle model should have had a black box and that the
deployment of the air bags in that vehicle (which Ms. Turner confirmed) would
have “frozen” the black box recordings, making the collision speed available.
Ms. Turner retained Mr. Bolan on April 11, when they met for the first time to
discuss the matter.

[7]
Mr. Bolan never advised MVA counsel of his involvement, but in addition
to investigating the black box question, also gave her brief advice regarding
the disbursements i.e. that a detailed list and corroboration of the deductions
should reasonably be available and that she was entitled to that. He advised
her as to the tone and content of communications to take with the MVA counsel.
There was clearly an urgent air at first, as Ms. Turner was told by her MVA
counsel that she had to decide on the offer within a day, although ICBC then
agreed to an extension to 4:00 p.m. Wednesday April 16. Ms. Turner wanted to
know how likely it was that if she did not respond to the time-limited offer
ICBC might renew the offer later.

[8]
On Mr. Bolan’s advice Ms. Turner sent emails to the MVA counsel asking
about the black box and whether there were any indications in her file that the
issue had been investigated. When one of the counsel responded in the negative
she then sent an email in the afternoon of April 16 saying she was still
pondering the black box issue and asking her counsel to have ICBC extend the
offer deadline, due to expire that afternoon at 4:00 p.m. When she got a “not
in the office” response from her MVA counsel, she immediately told Mr. Bolan,
who advised her to copy her email request and the “not in office response” to
her MVA lawyer’s co-counsel. The logic, as I understand it, is that that would
demonstrate that it was not possible, even had she wished to accept the offer,
to meet the ICBC deadline. She might then use that to either extend the
deadline or, alternatively, to seek further concessions from her MVA counsel.

[9]
Once that had occurred there was a sense that the pressure was off and
that the deadline question was less of a pressing issue. On April 16, Mr. Bolan
said to Ms. Turner “Now that that rush is over, I will return to working
on my analysis.”  Mr. Bolan then immersed himself in the black box question
and, by April 17 had read the trial decision and both expert reports. He
then did his own speed analysis using a different approach and satisfied
himself that the defendant almost certainly had been speeding. He also
reconciled that with Ms. Turner’s evidence at trial i.e. that she had not seen
the defendant vehicle, postulating that that was not due to her inattention but
rather to the distance between the vehicles. As he expressed it:

In conclusion, the indisputable
math and logic noted above, dictates that the story [D.] gave at trial does not
add up and it is not even close. Something else…had to have been going on. I do
not see anything in the decision of the judge to indicate that any argument
along the lines of the foregoing was put to him.

[10]
He sent his six-page analysis and conclusions to Ms. Turner with an
accompanying note (in part) that said “I wouldn’t have continued with it if I
didn’t think it was going to benefit you in the long run.”  By this, I
understand, he meant that in overlooking the issue her MVA counsel could now be
made to offer concessions or perhaps even be held liable in negligence.

[11]
Ms. Turner was alarmed by the length and detail in the analysis and on
April 19, having apparently just received the email, told Mr. Bolan (again by
email):

Stop everything right now. Put a
hold on my file. I was not expecting to make contact with you until after the
long weekend (per your email).

She was clearly very concerned
about incurring fees or “…a surprise bill…”. Her email went on to restate the
issues she thought she had consulted Mr. Bolan on, and on which she expected
advice. Quoting again, she said:

I approached you on these issues:

–  the pressure tactics used by
(MVA counsel), which were appalling,

–  outrageous disbursements

–  having my file sit idle for
months on end – collecting approx. $750/mthly interest

–  living extreme physical and emotional turmoil –
insurmountable stress

Basically, I was looking for advice and options on:

–  Disbursements; (MVA counsel)
would not give me a breadown or explanation of how it reached 80k+/–

– What I could do regarding the
mismanagement of my file and account. Options: Conduct a malpractice suit, go
forward with the Law Society, find a new law firm to take over, etc.

–  And the treatment with indignant
dialogue to pressure me to settle with ICBC and leave me hanging with all other
unfinished business.

OPTIONS

Our conversation spoke on making decisions on my strongest
hand; but you never divulged as to my many options that were available to me.
Further, I clearly remember the fact around the Mustang box – settlement
numbers would go up, pending the Mustang box reading. If the Mustang was found
and the black box proved speeding we could use this information in several
ways. Not discussed, although I was assuming the options would be: go back to
court, use it in malpractice, etc.

I believed that once I signed….(sic) together we would make
decisions as to course of actions. You would put out options and together we
would decide. This being the actions you would be advising me on.

Again, you are not authorized to
do anything more for me right now. Until, (sic) your office reopens after the
long weekend and we chat, face to face. You said yourself, “the rush is over”.

PARTIES’ POSITIONS

The client

[12]
Ms. Turner argues that the account should be substantially reduced for
numerous reasons:

1)  She did not retain Mr. Bolan
until April 11 so that time entries for April 9 and 10 should be deducted, as
she was assured that the initial consultation would be “free”;

2)  Time entries for April 11
(e-mail exchanges) are excessive given the length and content of the e-mails;

3)  The time recorded by Mr. Bolan
for performing an accident analysis or reconstruction should be deducted in its
entirety, as Mr. Bolan was never instructed to do that work;

4)  Time recorded after April 19
should be deducted as Ms. Turner had specifically instructed Mr. Bolan to do no
more work;

5)  Another time entry for April
11 is in error; it records one hour for Mr. Bolan and 18 minutes for his
paralegal, but Ms. Turner’s evidence is that Mr. Bolan was 20 minutes late, met
with her for only 40 minutes, and that the paralegal met with her for the 18
minutes making, practically, the hour between them.

6)  The disbursement of $5.90
should be deducted as it relates to copying of expert reports that Mr. Bolan
considered when he was analysing the accident.

[13]
Most of these points speak for themselves, but the third i.e. the
accident analysis, requires enlargement. Ms. Turner acknowledges that to some
degree she and Mr. Bolan discussed the strategy that her MVA counsel chose to
employ on the issue of liability. She told Mr. Bolan that her father informed
her that the defendant’s vehicle, a Mustang, would have had a “black box” that
would have recorded the vehicle’s speed at collision. In her e-mails and
meeting with Mr. Bolan, she asked for his advice regarding several aspects or
options. These included a “malpractice suit” against her MVA counsel, consulting
the Law Society regarding their representation of her, or perhaps retain new
counsel. Her overriding concerns were, however, two: the looming deadline for
acceptance or rejection of the offer to settle and her MVA counsel’s deductions
for disbursements or other expenses (so that she would have an accurate
indication of her net recovery from the offered settlement).

[14]
The largest single time entry for Mr. Bolan was for his accident
analysis[2].
This, Ms. Turner argues, was unwarranted and was not work done on her
instruction. In various e-mails Mr. Bolan referred to “…my analysis” or words
to that effect. By this he apparently meant his accident analysis. To Ms.
Turner this meant an analysis of her MVA counsel’s disbursements.

[15]
Ms. Turner says she asked for and expected a strategy or plan from
Mr. Bolan that would define what tasks or steps were to follow, who would
take the steps or do the tasks, what the timeframe for that should be, what the
cost would be, and what benefit would flow in the result. She did not receive
any of that, she says.

The solicitor

[16]
Mr. Bolan is adamant that the direction he took with his accident
analysis and calculation was authorized by Ms. Turner after their consultation.
Since it was quickly confirmed that the defendant vehicle in her MVA trial had
been destroyed and its black box no longer available, he could only prove its
value, he said, by an analysis that proved the impact studies and conclusions
of the experts to be wrong. Establishing that, he argued, would then allow Ms.
Turner further options vis a vis her MVA counsel i.e. she could either push for
fee concessions from them or even bring a claim for solicitor’s negligence. He
and his firm had frequently acted for the lawyers’ insurance fund and he
advised Ms. Turner that he could advise her respecting the latter point, but
could not act for her if she wished to bring suit.

[17]
He argues that her approval of this direction is confirmed by her “stop
work” e-mail (para. 11 above) wherein she said:

Basically, I was looking for advice and options on:

-Disbursements; H[3]
would not give me a breakdown or explanation of how it reached 80K+/-

-What I could do regarding the
mismanagement of my file and account. Options: Conduct a malpractice suit, go
forward with the law Society, find a new law firm to take over, etc.

-And the treatment with indignant dialogue to pressure me to
settle with ICBC and leave me hanging with all other unfinished business.

This, he argues, made his analysis necessary before he could
advise on a malpractice suit or other related options.

[18]
Mr. Bolan also argues that para. 1(c) of the retainer agreement
authorized him to undertake the analysis he did:

Advice to you as to the options
available to you and steps you should take to achieve a satisfactory settlement
of your insurance claim.

He could not advise on the options, he said, until he had
completed his analysis.

[19]
Mr. Bolan submitted that the 1.8 hours charged after Ms. Turner’s “stop
work” e-mail were justified and necessary and that while he agreed he had
offered an initial consultation without charge that was only in the event he
was not retained; if he was, as a result, retained there would then be a charge
for the time spent in the consultation. Finally, he noted that after his
meetings and communications with Ms. Turner, Ms. Turner’s portion of the
$153,000 offer was increased by $10,000, confirming the value of his services.

ANALYSIS

[20]
The fundamental issue in this review, of course, is what had Ms. Turner
retained and instructed Mr. Bolan to do in the 10 days between April 9 (when
Ms. Turner’s mother first contacted Mr. Bolan) and April 19 (when Ms.
Turner sent her “stop work” e-mail. If I accept Ms. Turner’s evidence it was to
give her, firstly, immediate advice respecting the deadline imposed by the ICBC
offer and, secondly, what options she had thereafter. If I accept Mr. Bolan’s
perspective, he was within the terms of his retainer when he performed the
accident analysis described in his lengthy e-mail of April 17. On balance I
conclude that Ms. Turner’s understanding and expectations were closer to the
reality of the situation. She wanted some help in dealing with the deadline
and, once that pressure had passed, wanted general advice regarding options.
The time spent by Mr. Bolan on accident analysis went far beyond and involved
far more detail than she required or expected at the time.

[21]
I return to Ms. Turner’s “stop work” e-mail: this email confirms two
things to me; firstly, it is a clear instruction to counsel to down tools and
do no more work. Secondly, it shows that early on Ms. Turner confirmed her
expectation of a different direction (and volume) that she understood Mr. Bolan
would take. At the very least this confirms to me that there was a misunderstanding
or disconnect between her and Mr. Bolan as to the direction and effort his work
would take. It also indicates that her perspective in all of this is not a
recent one i.e. that she expected less effort regarding the black box and a
broader range of advice from Mr. Bolan almost from the start.

[22]
Mr. Bolan’s submission that Ms. Turner’s April 19 e-mail confirmed his
wider retainer (para. 17 above) must be taken in a larger context; immediately
preceding the quoted portion, above, Ms. Turner said

I approached you on these issues:

-the pressure tactics used by H,
which were appalling,

-outrageous disbursements

-having my file sit idle for months
on end – collecting approx. $750/mthly interest

-living extreme physical and emotional turmoil – insurmountable
stress

[23]
It should have been evident to Mr. Bolan on his first meeting with Ms.
Turner that one of her fundamental concerns was the legal services she had
received from her MVA counsel and the fees she was being charged for that. Any
counsel in his shoes, I would think, would have been careful to outline what
steps he or she intended to take and how much effort or how many hours that
would reasonably consume. Instead of giving Ms. Turner the general advice that
she sought, he fixed on a very specific aspect of the liability finding and
took matters from there. It may be entirely correct that that, or a similar,
analysis would bear fruit eventually, but in my view, Mr. Bolan’s time spent on
the accident analysis placed the cart well before the horse.

[24]
It is interesting that Mr. Bolan felt qualified to undertake the
calculations and analysis. Even if he was correct in every respect, it seems to
me that it would have taken an expert, probably in accident reconstruction, to
repeat the analysis before it would be admissible in court. It seems outside,
then, the usual ambit of legal advice and counsel.

[25]
If counsel feel compelled to embark on a specialized, time-consuming and
(in my view) digressive undertaking as Mr. Bolan did with his accident
reconstruction / analysis then there needs to be an equivalence in the client’s
understanding and instruction; he or she would have to demonstrably understand
the implications, especially respecting fees, that that undertaking would
reasonably entail. There is no doubt that Ms. Turner did not expect or
anticipate the time expenditure that Mr. Bolan undertook.

[26]
Ms. Turner is, on the evidence, entirely correct respecting some of the
other charges Mr. Bolan included. Mr. Bolan cannot offer a free consultation
and then charge Ms. Turner for it nor can he charge time spent after a clear
and unequivocal “stop work” direction. I accept Ms. Turner’s evidence (para. 12
above) that in fact Mr. Bolan was late for her appointment April 11 and that
she did not meet a full hour with him. Mr. Bolan, on the other hand, was
entirely correct to review Goepel J.’s reasons and to briefly discuss the
matter with his engineering expert. The extensive and detailed analysis he did
to challenge the expert evidence before Goepel J., however, was not reasonably
within Ms. Turner’s instructions.

[27]
Finally, Mr. Bolan’s services did not increase Ms. Turner’s portion of
the offer (para. 19 above). I conclude that she managed that on her own, once
having (with some help from Mr. Bolan, I agree) obtained some relief from the
ICBC deadline and having entirely properly insisted on a better accounting from
her MVA counsel. The increase in her portion resulted from her MVA counsel
reducing their fees by $10,000 and eventually ICBC adding $1,500 to their
offer. I credit Ms. Turner almost entirely with securing these improvements.

[28]
Section 71(4) of the Legal Profession Act requires that I
consider the following elements:

(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.

I will consider them in turn.

Complexity

[29]
There is no doubt that the issues Ms. Turner presented to Mr. Bolan were
multi-levelled; she was concerned immediately with the ICBC offer, its
deadline, and its elements that resulted in her net recovery. But she was also
concerned with the longer term issues of the service she had received from her
MVA counsel. I think that she needed general, preliminary advice respecting the
latter, but that Mr. Bolan undertook a much more specific and detailed enquiry
than she intended.

Skill and specialized knowledge

[30]
Mr. Bolan is certainly familiar enough with civil litigation and
personal injury claims, but does have a particular insight into solicitors’
negligence, having acted on occasion for the bar’s insurance fund. Despite this
he was clear that while he could advise, he would not act for Ms. Turner in the
event she chose to pursue a claim against her MVA counsel. This obviously
limited the utility of his service to her.

Character and standing

[31]
This aspect did not factor into the analysis in either a positive or a
negative way.

The amount involved

[32]
This was a very pressing concern for Ms. Turner. Somehow, without any
reasonable explanation or corroboration (in my view), she was asked to approve
an offer that reduced from $153,000 to $12,000. Moreover, these numbers should
be taken in the larger context; her claim had proceeded for several years and
had weighed heavily upon her. The amount was clearly the singular issue in her
mind.

The time reasonably
spent

[33]
This is the rock on which Mr. Bolan’s claim to fees founders; he simply
spent much more time on a particular issue than was required at that stage of
his retainer. Ms. Turner may have understood that he would be considering the
issue, but she could not be expected to know of or approve the intensive and
time-consuming exercise that he undertook. She was reasonable in her
expectation of a more long-range and generalized consideration by Mr. Bolan
that would have taken less time.

Agreed rate

[34]
Mr. Bolan’s rate was $300 per hour which I conclude is reasonable given
his experience.

Importance

[35]
As I have said (para. 5 above) the matter was not only important to Ms.
Turner but was, when she first consulted Mr. Bolan, urgent due to the ICBC
deadline.

Results

[36]
Again, as I have said, it is hard to attribute any result to Mr. Bolan’s
work. Certainly, he guided Ms. Turner in her discussions with her MVA counsel
and thereby gave her a stronger basis for delaying or extending the deadline,
but as I have already concluded, the ultimate increase in her net recovery (i.e.
$11,500) is due to her personal discussions with her MVA counsel and her
reluctance to accept the offer.

[37]
In the final analysis, I conclude that an appropriate fee for Mr.
Bolan’s work is $1,100.00 together with GST and PST thereon. The disbursement
of $5.10 is appropriate and is allowed.  Given the fee reduction that I have
directed, Ms. Turner is entitled to her costs under s. 72(1)(a) of the Legal
Profession Act.

“Master
Baker”