Claim No: 288122
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Mrkonjic v. Darrell Jessome Inc., 2008 NSSM 5
BETWEEN:
JOSEPH MRKONJIC
Claimant
- and -
DARRELL JESSOME INCORPORATED
Defendant
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Dartmouth, Nova Scotia on January 8, 2008
Decision rendered on January 14, 2008
APPEARANCES
For the Claimant: self-represented
For the Defendant: Tim Hill
Counsel
BY THE COURT:
[1] The Claimant seeks a full refund of money paid for accounting services rendered by the Defendant, which is the company through which Mr. Jessome carries on his practice as a Chartered Accountant. The Claimant believes he was overcharged for the services rendered.
[2] The Claimant and his Wife are senior citizens of modest means. They had some questions in the summer of 2007 concerning their income tax situation, including whether they had taken advantage of all possible credits in 2006. They were also considering investing in a fairly sophisticated tax shelter involving donations, and wanted some advice on that. Lastly they were also looking for some guidance as to how much of the Wife’s RRSP or RRIF could be deregistered in 2007 at her already minimal tax rate. In short, they were looking for professional help to plan their finances in a tax advantageous way.
[3] The Defendant was retained to address these questions.
[4] At a final meeting with Mrs. Mrkonjic on September 12, 2007 Mr. Jessome presented her with some forms to sign, and his final bill for $1,200.00 plus HST. Although he was not insisting on immediate payment, she paid the bill by cheque before leaving his office and without discussion with her husband. When Mr. Mrkonjic later found out the extent of the bill he was upset, believing that they had been overcharged. After an unsuccessful attempt to negotiate a reduction directly with the Defendant, he proceeded to make a complaint to the Institute of Chartered Accountants of Nova Scotia (ICANS). As a result of meetings between the Defendant and ICANS (to which the Claimant was not privy) a 50% refund of $684 ($600 plus HST) was sent, leaving that same amount as the discounted bill amount.
[5] The Claimant was not satisfied and believed that he should have been involved in the process which resulted in that refund. He then brought this action and subpoenaed the Director of Regulatory Affairs for ICANS to appear at trial, where he proposed to ask him what had gone on in the meeting or meetings where his complaint was discussed. ICANS objected to the subpoena and sent its counsel to argue that it was improper. After hearing argument I ruled at the outset of the trial that the evidence sought was privileged because it sought to intrude in a confidential process that will only work effectively if members are able to speak candidly with their professional body, without fear that the conversations will later be exposed in court. I also ruled that the evidence sought was irrelevant, since it was ultimately for the court (and not ICANS) to decide what was a reasonable fee for the work done. I accordingly quashed the subpoena and proceeded to hear the balance of the evidence.
[6] Mr. Mrkonjic testified that he has a long background in accounting and that he was accordingly qualified to give expert evidence as to what ought to be involved in an accounting engagement and what it ought to cost. On the basis of what was presented, I cannot accept the Claimant himself as an expert. Experts come to court with a certain objectivity and credentials which give their opinions weight. Aside from the Claimant’s total lack of objectivity, which would of itself diminish any weight I might place on such testimony, I heard nothing from him that would establish that he has any recent or even relevant experience of public accounting. He was not a Chartered Accountant and did not carry on an accounting practice. As such, he is no different fundamentally from any client of a professional - however educated and informed - who believes that he has been overcharged and that the matter was not as complex and should not have occupied as much time as the professional appears to contend.
[7] The evidence of Mr. Mrkonjic alone establishes that there was a preliminary meeting lasting about an hour, and that the Defendant was asked to perform some calculations and give some advice. He appears to have concluded that there was a missed opportunity for a saving in one of their 2006 tax returns, and he prepared an amending return to allow that credit to be applied for. There was also evidence that the Defendant spoke to an individual at T-D Waterhouse, where the Mrkonjics had their investments, and that there was some tricky question discussed about how to get stocks out of the RRIF without selling them (thus triggering commissions) and yet generating the necessary money to cover the withholding tax which must be paid when RRIF funds are withdrawn. There was also evidence of a final meeting between the Defendant and Mrs. Mrkonjic alone, when some of the advice was given, forms were signed, and the bill was presented and paid.
[8] The Claimant cannot say that no work was done on his file, nor that there was anything wrong with the work performed. His main complaint is that the Defendant actually did more than he was asked to do. He alleged negligence in the Claim, but this claim cannot succeed because the only possible fault with the Defendant’s work appears to have been that Canada Revenue Agency did not initially have the proper authorization to treat the Defendant as the Mrkonjics’ agent to deal with the amended return - a matter that was easily and quickly corrected.
[9] The Defendant chose to call no evidence, but instead moved a non-suit. I ruled that there was “some” evidence to support the claim, and as such could not non-suit the Claimant. Nevertheless, the fact that there is some evidence does not automatically mean that the case should succeed. Upon reflection I have concluded that there is an insufficient basis for me to make a finding that the work performed did not justify the ultimate amount charged, which was $600 plus HST. Indeed, I am satisfied on all of the evidence that the Defendant was contracted to perform work and that he did so at a reasonable cost to the Claimant and his wife.
[10] It appears to me, with due respect, that the Claimant is out of touch with what professional services cost, and his estimations of what amount of time a project should take are simply unrealistic.
[11] In the absence of a specific estimate or budget, the Defendant had every right to assume that he had his clients’ authorization to spend a reasonable amount of time to provide the professional service requested of him. I make no finding with respect to the original $1,200.00 bill because it has already been half refunded. On the basis of the $600 plus HST bill that was before me, it appears to have been reasonable and as such the action to disallow that amount has no merit.
[12] In the result the Claim is dismissed.
Eric K. Slone, Adjudicator