Date Issued: November 29, 2018 File: SC-2018-004412 Type: Small Claims Civil Resolution Tribunal Indexed as: Centennial Law Corp. v. Bleidistel, 2018 BCCRT 780 BETWEEN: Centennial Law Corp. APPLICANT AND: Maik Bleidistel RESPONDENT REASONS FOR DECISION Tribunal Member: Eric Regehr INTRODUCTION 1. The applicant, Centennial Law Corp., is a law firm in 100 Mile House (law firm). The law firm claims that the respondent, Maik Bleidistel, owes it $779.35 for an unpaid invoice. The respondent states that he never retained the law firm and therefore does not owe it any money.
2. The law firm is represented by one of its lawyers, Douglas Dent. The respondent is self-represented. JURISDICTION AND PROCEDURE 3. These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended. 4. The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing. 5. The respondent has referred to statements that the applicant made during the facilitation stage of this dispute. The combined effect of sections 27 and 61 of the Act and tribunal rule prohibit disclosure of settlement discussions that occur during the tribunal’s facilitation process. I considered whether to seek submissions from the parties regarding whether I should disabuse myself of the settlement discussions or have the file re-assigned. I decided not to seek submissions because the information that the respondent disclosed from settlement discussions is irrelevant and has no bearing on the outcome of this case. 6. The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate. 2
7. Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders: a. order a party to do or stop doing something; b. order a party to pay money; c. order any other terms or conditions the tribunal considers appropriate. ISSUES 8. The issues in this dispute are: a. Did the respondent retain the applicant? b. If the respondent did retain the applicant, is the amount that the applicant claimed reasonable? EVIDENCE AND ANALYSIS 9. While I have reviewed all of the evidence and submissions, I refer only to what is necessary to explain and give context to my decision. 10. The respondent’s father passed away January 4, 2017. 11. On January 5, 2017, one of the lawyers at the law firm (lawyer) texted the respondent to offer condolences. The lawyer is a family friend of the respondent. 12. On January 9, 2017, the lawyer texted the respondent to tell him that the law firm was beginning to work on the probate documents and needed a death certificate to proceed. The law firm alleges that the respondent provided the death certificate via text message, but the text message history in evidence does not support this assertion. The respondent denies giving the law firm the death certificate. 13. Mr. Dent met with the respondent and several of the respondent’s family members on January 13, 2017, to discuss the respondent’s father’s estate. The respondent 3
states that Mr. Dent discussed his fees and that the respondent said they would think about it. 14. The law firm sent the respondent 2 letters dated January 11, 2017. It is not in evidence when the respondent received them, but I infer that it was after the January 13 meeting. The first letter outlined the respondent’s duties as executor. The letter is essentially a form letter with mostly general advice. 15. The second letter is a retainer letter, which the law firm asked the respondent to sign and return to confirm that he agreed to the terms of the retainer. It is undisputed that the respondent never signed the retainer letter. 16. On March 22, 2017, the lawyer texted the respondent because the lawyer thought that the respondent had some questions about the estate. The lawyer stated that the law firm would be sending further documents and was still waiting for documents from the respondent. The respondent replied by stating that all he needed was 2 certified copies of the will. The respondent also questioned what other documents the lawyer was talking about. 17. On March 22, 2017, the law firm sent a letter to the respondent enclosing 2 certified true copies of the respondent’s father’s will. In the letter, the law firm requested documents needed to complete a probate application. The respondent did not reply. 18. On June 14, 2017, the law firm sent a letter following up on the requests from the March 22, 2017 letter. The respondent did not reply. 19. On September 29, 2017, Mr. Deck left the respondent a voicemail stating that the respondent still had not provided the requested documents. The respondent did not reply. 20. On October 19, 2017, the law firm sent the respondent a statement of account of $779.35. 21. The law firm provided time sheet records showing when its lawyers and staff worked on the respondent’s matter. Roughly half of the fees that the law firm charged were 4
for Mr. Dent’s attendance at the January 13 meeting. The law firm’s legal assistant drafted probate documents in May 2017, which accounted for roughly one quarter of the fees charged. 22. The legal assistant emailed the respondent a reminder on January 15, 2018. The respondent replied that he was surprised to have received the invoice since he had repeatedly declined the law firm’s services. 23. The legal assistant swore an affidavit confirming that they offered the respondent an initial meeting at no cost. The legal assistant states that they told the respondent that the law firm would charge him for any further work. 24. The lawyer also swore an affidavit. She states that she gave the respondent some free advice. She states that she told the respondent that the law firm would charge him for services if he retained Mr. Dent. 25. The law firm submits that the two affidavits state that the law firm never offered the respondent free advice. However, both affidavits refer to providing some legal services at no cost. 26. This dispute turns on whether the law firm and the respondent entered into a contract for legal services. The law firm makes a number of arguments. 27. First, the law firm submits that the respondent’s failure to tell the lawyer not to work on any probate documents in response to her text message on January 9, 2017, should be taken as evidence that the respondent had accepted a paid retainer. I disagree. This text message occurred before Mr. Dent and the respondent met and before the law firm provided the respondent with a retainer agreement. There had been no discussion about the cost of the law firm’s services or any other terms of the retainer. This text message also came in the context of the lawyer providing the respondent with some legal services for free. 28. Second, the law firm submits that it is unlikely that the respondent would have ignored the law firm’s letters if he did not want it to continue working for him. In particular, the 5
law firm submits that the respondent’s failure to decline the law firm’s legal services after receiving the retainer agreement is the equivalent of the respondent signing it. 29. I do not agree that the respondent’s failure to actively decline services is evidence that he agreed to the terms of the retainer agreement. As discussed below, I find that the respondent’s silence supports the respondent’s position. In addition, the retainer letter explicitly asks the client to acknowledge receipt of the letter and confirm their agreement with its terms by signing and returning it. The law firm’s submission is inconsistent with the language of the retainer agreement. 30. Ultimately, the law firm bears the burden to prove on a balance of probabilities that an enforceable contract exists. I find that the law firm has failed to discharge that burden. 31. There are a number of facts that ought to have put the law firm on notice that it had not reached an agreement with the respondent, especially keeping in mind that the law firm is a sophisticated party. 32. First, and most importantly, the respondent never signed the retainer agreement. The retainer letter itself acknowledges that written retainer agreements, while not mandatory, are extremely important in the legal profession. While a written retainer agreement is not necessary to form a contract, in the context of this dispute the respondent’s failure to sign and return the retainer agreement is strong evidence that he did not agree to it. 33. Second, the respondent did not communicate with the law firm after the January meeting other than to request certified copies of the will. I do not place much weight on the fact that the respondent requested the certified copies from the law firm, because the law firm still held the original will. After receiving the certified copies, he did not communicate with the law firm again until January 2018 when he disputed the invoice. In the face of this silence, the law firm’s decision to work on the probate application in May 2017 is puzzling. 6
34. Third, the respondent’s text messages to the lawyer on March 22, 2017 suggest that the respondent did not believe that he had retained the law firm. The lawyer says that she will be sending him documents and that he needs to send her documents. In response, the respondent states that all he needs are the certified copies of the will. The respondent also questions what documents the lawyer was talking about. I find that the respondent’s question is inconsistent with the assertion that the respondent had retained the law firm. 35. Therefore, I find that the law firm has failed to prove that the respondent accepted the law firm’s offer to act for the respondent. Accordingly, I find that the respondent did not retain the law firm. 36. Because of my finding, I need not resolve the question of whether the respondent verbally told the law firm that he did not wish to retain them. My conclusion is that the law firm failed to prove the existence of a contract even if the respondent never explicitly told the law firm that he did not wish to retain them. 37. I also need not address the question of the reasonableness of the applicant’s invoice. I do note, however, that the retainer agreement includes a provision that the client will pay the law firm’s disbursements. The law firm charged a file opening fee of $25, which is not a disbursement. A lawyer may only charge for items like file opening fees if a written retainer agreement specifically provides for them, which the law firm’s retainer agreement does not. See Harbottle & Co. v. Matthews, 2001 BCSC 690. Therefore, even if the respondent had signed the retainer agreement, I would not have awarded the law firm the file opening fee. 38. Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find the law firm is not entitled to reimbursement of its tribunal fees. The respondent did not claim any dispute-related expenses. 7
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.