IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Western Regional Health Board v Zimmer, 2008 NSSM 25
Date: 20080602
Claim: SCCH 284974
Registry: Halifax
Between:
Carolyn Silver, for the Western Regional Health Board
Applicant
v.
Warren Zimmer
Respondent
Adjudicator: W. Augustus Richardson, QC
Heard: April 1 and 2, 2008 in Halifax, Nova Scotia.
Appearances: Peter Nathanson, for the Applicant
Walter Thompson and Warren Zimmer, for the Respondent
By the Court:
[1] This assessment (or taxation) of the accounts of the Respondent came on before me on April 1 and 2, 2008. I heard the evidence of Ms Silver and Mr Zimmer, and heard the submissions of Mr Nathanson and Mr Zimmer on his own behalf.
[2] The background to this assessment is a little unusual, and requires some explanation to make sense of it.
[3] Carolyn Silver is an accountant and an investment tax consultant. In June 1999 she was charged by the police with certain criminal offences. It was alleged that she had committed arson in 1982 and again in 1996, both with the intent to defraud an insurance company. The charges arose out of allegations that had been made by a former friend of Ms Silver who was, I believe, an outpatient at the Western Regional Health Board (the “WRHB”). The former friend told her caseworker at the WRHB that Ms Silver had admitted to committing arson for purposes of insurance fraud.
[4] Ms Silver retained the services of Warren Zimmer, a lawyer practicing in Halifax in the field of criminal defence. He acted for her throughout the various criminal proceedings.
[5] Ms Silver elected trial by judge alone in relation to the 1996 fire and judge and jury in relation to the 1982 fire. Preliminary inquiries were held in February, April and May, 2000. The charge relating to the 1996 went to trial in September 2000 before Justice Goodfellow. Ms Silver was convicted and sentenced in December 2000. Mr Zimmer filed a Notice of Appeal. As well, he made an application to file fresh evidence, being the evidence of three witnesses who came forward as a result of learning of the trial. An expert report was also obtained. This evidence raised serious doubts about the origin of the 1996–and the veracity of the former friend. The evidence suggested in particular that the former friend had fabricated her evidence against Ms Silver. The evidence was compelling enough that the Crown conceded that a new trial should be ordered, and the Appeal Court did so.
[6] While all of this was going on the charge with respect to the 1982 fire was proceeding. It eventually went to trial before a jury in May 2002. The former friend was called to give evidence for the Crown; Mr Zimmer introduced the fresh evidence with the view to establishing that the former friend was not being truthful. The jury deliberated for seven days and returned a not guilty verdict: see Exhibit 1 for a precise of the events surrounding the two charges.
[7] Following this acquittal Mr Zimmer redoubled his efforts to get the charge with respect to the 1996 dismissed rather than re-heard. As a result of vigorous lobbying of both the local Crown and the Regional Crown Attorney he was eventually able to secure the Crown’s agreement in March 2003 that there was really no evidence worthy of trial.
[8] The central witness for the Crown’s case against Ms Silver in respect of both charges was the evidence of her former friend. That evidence was established by Mr Zimmer to have been untrustworthy if not an outright fabrication. As a result Ms Silver commenced an action against the WRHB and its caseworker. So far as is relevant, she alleges that the WRHB and its caseworker were negligent in listening to or passing on or acting upon the allegations of the former friend. They should have known, it is alleged, that the former friend was not telling the truth, and that her testimony was not reliable.
[9] Ms Silver’s claim included a claim for recovery of her legal costs associated with her defence in the criminal matters. Mr Nathanson acts as counsel for the WRHB and the caseworker sued by Ms Silver in the civil action. The parties agreed that those accounts should be assessed as to their reasonableness. Hence this application by way of a taxation of Mr Zimmer’s accounts (all of which were paid by Ms Silver). Since (as discussed below) the defendants were entitled to stand in Ms Silver’s shoes on this assessment, the Notice of Assessment was notionally filed in Ms Silver’s name.
The Accounts
[10] During the course of his retainer Mr Zimmer would render accounts to Ms Silver from time to time. There were nine accounts, dated February 18, July 27 and August 31, 2000; February 5, April 27 and July 3, 2001; January 29, May 21 and October 24, 2002. The accounts are listed on the Notice of Taxation filed in respect of this matter. The total of all nine accounts (which were attached to the Notice of Taxation) is $136,992.37. This figure includes disbursements and HST. Most of the total is made up of fees for Mr Zimmer’s services. (These are the only accounts subject to this taxation; a separate account of $32,518.27 in respect of disbursements is not included.)
[11] Mr Zimmer is a senior criminal defence counsel located in Halifax. He was called to the bar in 1978, and spent five years with the Crown. He then practiced with a downtown law firm for 11 years before leaving to practice on his own.
[12] Ms Silver was taken through each of the accounts under review. She testified that during the course of her retainer of Mr Zimmer she kept a journal, into which she noted her appointments with him, the time she spent with him, and the time he spent in court on her behalf. She did not keep track of her phone calls with him because they were “too numerous.” She also kept track of this information in a chart titled “Appointments with Lawyer and Court Dates,” which was introduced as Exhibit 2 at the hearing. Whenever she got an account from Mr Zimmer she would compare it with her own records. On one occasion she even called him on what appeared to be a double-entry. She contacted Mr Zimmer, who checked and then advised that there was a typo on his account, and that a reference to July 28th should have been a reference to August 31st. The result of her review was always satisfactory to her. Indeed, in general it appeared to her that Mr Zimmer was charging less time than what he actually appeared to be spending on her case.
[13] There was a lot of work involved in her defence. The September 2000 trial of the 1996 fire took four days in Bridgewater and was preceded by three days of preliminary hearings. There were then several appearances in court before the sentencing and bail hearings (on two separate days) in December 2000. The appeal of that decision involved reviewing roughly 1,000 pages of transcripts and a 200 page factum. The re-trial of that charge was then to take place in October 2001 but was then adjourned after a pre-trial conference. The charge in respect of the 1982 fire was heard over 16 days in May and June 2002, again in Bridgewater. The re-trial of the 1996 matter went to trial in March 2003, with the Crown calling no evidence (with the consequent dismissal).
Principles
[14] Mr Nathanson, nominally counsel for the “applicant” Ms Silver but in reality counsel for the defendants in the civil action commenced by her to recover the legal fees she paid to Mr Zimmer, submitted that this case was akin to one in which a party had been ordered to pay another party’s solicitor and client costs. I agree with this submission. That is not to say that there is such an order. However, at issue in the civil lawsuit are both the liability of the defendants to pay the plaintiff’s legal fees (an issue over which I have no jurisdiction) and the reasonableness of the amount of those fees (over which I do have jurisdiction). Since the defendants are the ones who may be liable ultimately to pay those fees they should have the right to question them in the same manner and to the same extent that the client (plaintiff) could have, had she have chosen to do so.
[15] That being the case, what are the principles that should guide me on this assessment? First, and as noted by Goodfellow, J in Halifax Regional Municipality v. Joudrey 2001 NSSC 185 at para.14 (emphasis in original) “[a]n award of solicitor and client costs is not a determination that the responsible party pays whatever the solicitor and client costs bill happens to be;” see also Aulwes v. Mai and Mai 2002 NSSC 204 at para.22. A person who has the benefit of such an order is to receive from the party against whom the order is made “payment for all costs relating to the litigation that ... [the former’s] solicitor could properly ... [have asked him or her] to pay:” Mintz v. Mintz (1983) 43 OR (2d) 789 (HCJ), per Trainor, J.
[16] Second, and flowing from the first, a party who has been ordered to pay another party’s solicitor and client costs is entitled to raise any objection that that party could have raised to the “reasonableness” of the charges on a taxation. Hence an adjudicator is obligated to tax a solicitor and client costs award as though a client were the one resisting the bill: Harwood v. Harwood [1998] AJ No. 217 (Taxing Officer); aff’d [1998] AJ No. 296 (QB); see also Coleman Fraser Whittome & Parcells v. Canada (Dept of Justice) [2003] NSJ No. 272 at para.50 (N.S. Small Cl. Ct.).
[17] In my opinion the test of “reasonableness” is an objective one. The test is not what the client thinks of the account. The fact that the client who paid the bill paid it, or was even happy to pay it, is not relevant: Miller v. Johnson 2006 NSSM 19, paras.3-4. The client in a case like this has a vested interest in supporting the reasonableness of the bill. Moreover, clients may pay bills because they feel they have to, or because they did not know they could complain, or were afraid to complain for fear of losing their lawyer. If the assessment or taxation exercise were reduced to a determination of what the client did in response to the bill there would be little point in the exercise.
Submissions and Decision
[18] Mr Zimmer submissions in essence were these:
a. he did not keep minute by minute dockets;
b. when a trial was involved he would bill based on the number of hours he spent in court and preparing for the hearing;
c. it was relatively easy for him to do this because his time tended to be comprised of “blocks” of time, such as court time;
d. his client, unbenownst to him, was keeping her own record of his time, at least that in court, and her records tended to track his own and thereby provided some independent verification of his time; and
e. his time records would generally understate the time spent on a file, because he tended not to keep track of the time associated with phone calls.
[19] Mr Nathanson’s submissions focused primarily on the fact that Mr Zimmer did not keep detailed dockets of the time he spent defending Ms Silver. As he said, “we are asked to take the time as a matter of faith.” He termed it “troubling” that there was no evidence outside of Mr Zimmer’s accounts as to exactly how much time was actually spent at trial, or preparing for hearings or drafting appeal submissions.
[20] In my respectful opinion Mr Nathanson’s submissions place too much emphasis on the lack of minute by minute time dockets. Such dockets are certainly helpful, and their absence can sometimes result in the lowering of a solicitor’s account. But they are not a sine qua non to establishing the reasonableness of an account. The ultimate question is not whether all of the time has been docketed in minute detail, but whether the account is “reasonable” in the context of the factors listed in CPR 63.16(1).
[21] I have reviewed the accounts of Mr Zimmer carefully. I listened to his evidence and that of Ms Silver. I reviewed the exhibits that were filed. And I have placed the accounts in the context of CPR 63.16(1) and in particular:
a. the seriousness of the charges Ms Silver faced;
b. the fact that both charges involved trials, one of which was quite long and involved a jury and expert evidence;
c. the number of days of trial involved;
d. the fact that the conviction in one of those trials was appealed and, as a result of Mr Zimmer’s efforts, resulted in an order for a re-trial; and
e. the fact that he was ultimately able to secure her acquittal on both charges.
[22] Against this context I am satisfied that Mr Zimmer’s accounts, both individually and in total, are more than “reasonable.” His work over the years of representing Ms Silver involved more than 20 full-blown trial days. It is safe to day that a day in court requires almost as much time in preparation as it does time in court. And this does not include all the other work–the letter writing, the phone calls, the meetings with witnesses and experts–involved in the day to day carriage of the file from charge to acquittal. As well, the degree of effort, diligence and skill involved in his work is evidenced by not only the results of that work, but the fact, for example, that he was able to use new evidence to secure a re-hearing–something that is not usually easily obtained.
[23] I note as well that the evidence of Ms Silver makes clear that she was not a passive client. Although clearly appreciative of Mr Zimmer’s work on her behalf, she did not let that get in the way of her self-interest insofar as his fees were concerned. She carefully reviewed each of his accounts when rendered and checked them against her own, independently-kept records. Her records provide corroboration of the time Mr Zimmer recorded in respect of his work, and satisfy me as to their accuracy. Hence the fact that Mr Zimmer did not keep the type of computerized time dockets one is used to seeing in the context of civil cases is balanced by the fact that there was an independent record being kept, a record that tracks fairly closely to Mr Zimmer’s own somewhat “ballpark” estimates of his time. But as I have indicated, time records alone are only one of the factors to be evaluated in an assessment of the reasonableness of a lawyer’s account.
[24] I am accordingly satisfied that the accounts of Mr Zimmer taxed in this assessment are reasonable and will certify them as such.
Dated at Halifax, this 2nd day of June, 2008
Original: Court File )
Copy: Claimant ) ______________________________
Copy: Defendants ) W. Augustus Richardson, QC
ADJUDICATOR