Sunday, February 21, 2010

FOR THOSE WHO THINK THAT LAWYERS CHARGE TOO MUCH...

Consider the recent case below if you think that "lawyers charge too much". A non-lawyer charged a very large sum in this case, with little apparent justification. In the words of the court, "The costs are plainly exorbitant and out of line" and "The end result was "nil"." Draw your own conclusions from the language of the decision.

Apart from the specific facts of this case, there is an obvious lesson for clients seeking legal counsel: hire competent, knowledgeable licensed lawyers who specialize in immigration law, with a solid track record, and who will represent clients to the best of their ability, without making promises or raising unrealistic expectations. Of course, good legal representation costs money, but unfortunately, many times people seek the assistance of individuals or organizations that tell them what they wish to hear, rather than providing a realistic assessment, and understanding the many limitations that exist in what legal representatives can or should do. Do not expect miracles, be realistic.

One further matter to note: lawyers do not normally engage in finding employers for potential foreign workers, as it is outside the area of legal representation, and in many provinces, employment recruiters are regulated. In response to abuses by unlicensed "recruiters", new legislation in Ontario prohibits charging fees to foreign workers for finding jobs, as normally those costs are borne by employers.

Aspiring foreign workers should understand that finding a job is a separate matter from obtaining a visa or Work Permit, and should strive to find their own employment prospects before initiating a visa application. Beware of those who may offer "packages" that include both finding an employer and obtaining a Work Permit, and keep those matters separate, unless the employer undertakes to hire legal counsel to obtain the Work Permit, something that many reputable employers often do when hiring foreign workers. Alternatively, some employers offer to reimburse or share in the cost of hiring immigration lawyers to pursue Work Permits. Remember that , when applying for a Work Permit, the employer making the job offer is the driving force behind the application.



Rai v. Alliance (A.L.) Canada Inc.

Between
Gurpreet Rai, Plaintiff,
and
Alliance (A.L.) Canada Inc., Defendant

[2010] O.J. No. 603
Court File No. SC-08-02922-00

Ontario Superior Court of Justice
Small Claims Court - Brampton, Ontario

M. Klein Deputy J.

Heard: July 2 and September 10, 2009.
Judgment: February 16, 2010.
(11 paras.)

Judgment

M. KLEIN DEPUTY J.:--

The Facts

1 In June of 2006, the plaintiff retained the services of the defendant corporation. The corporation provides consultation in the areas of Canadian immigration and citizenship and secures work permits for foreign employees within various industries. Mr. Anoo Lal, President and chief consultant of the corporation gave evidence on behalf of the defendant corporation. The plaintiff, as agent for his brother-in-law, Bikram Singh Sidhu, resident, at all material times, in Debai, retained the defendant to secure a temporary work permit for Mr. Sidu in Canada.
2 Basically, the process involves (as in this case) the consultant finding an employer(s) in Canada willing to provide fulltime employment to the foreign worker (applicant). Once an offer is made, it is submitted to Service Canada (Human Resources and Skills Development Canada) with supporting documentation in order to obtain a Labour Market Opinion (LMO). Service Canada works in conjunction with Citizenship and Immigration Canada to ensure that the employment of foreign workers has an overall neutral or beneficial effect to the Canadian labour market. Generally it entails that the Canadian employer has made a significant effort to hire a Canadian for the position of employment, that efforts were unsuccessful and that the foreign worker is qualified for the position. Once validated, the matter is referred to the Canadian Visa office in the overseas country. The Canadian Visa office will then interview the applicant. There is an English proficiency test that must be passed by the applicant. I note that although a work permit is a temporary resident Visa and does not lead directly to a Canadian permanent resident Visa, there is no bar to an application for permanent resident status while residing in Canada as a temporary resident with a work permit. Once the LMO is granted, the Canadian employer can extend a temporary job offer to the foreign skilled worker. The employer must send a copy of the positive LMO along with a detailed job offer letter to the foreign skilled worker.
3 The parties entered into a written agreement, dated June 2, 2006 (Exhibit 1). The plaintiff was quoted an entire fee of $12,200.00 in US funds. The plaintiff paid a total of $9,350.00; funds which were borrowed by Mr. Bikram.
4 The plaintiff put forward a number of complaints with respect to the services rendered, including never being able to make contact with the defendant, delay (some two years), lack of concern or attention to his case, receiving no updates on the process and poor (no) results. The long and short of it, the plaintiff contends that the defendant was in breach of contract and looks to this court for return of his funds.
5 The defendant, on the other hand, states that he did everything possible to carry out his duties to the plaintiff and in fact, that much of the delay was caused by the plaintiff in not providing documentation in a timely matter. Additionally, the English test was not completed by Mr. Bikram. Mr. Lal explained that there was much ground work involved in his work, especially in securing potential employers, by conducting numerous interviews. Mr. Lal claimed that he spent at least 35 hours of work on the plaintiff's application.
Discussion
6 In reaching this decision, I have relied not only on the parties' pleadings and evidence at trial, but extensive written submissions submitted by the parties for which I thank counsel.
7 Re Solicitors, [1972] 3 O.R. 433-440 (SCJ) sets out factors that have been held through the years to constitute the framework within which a solicitor's fee should be assessed:

1. The time expended by the solicitor.
2. The legal complexity of the matters dealt with.
3. The degree of responsibility assumed by the solicitor.
4. The monetary value of the matters in issue.
5. The importance of the matters to the client.
6. The degree of skill and competence demonstrated by the solicitor.
7. The results achieved.
8.The ability of the client to pay.

Taxing Officer McBride states in Re Solicitors:
I emphasize that I have not set down these factors in any sense in order of importance. In my view most of these eight factors should be considered in every case. However, it is clear to me that in a particular case one or other of the factors might reasonably be given more prominence than the others. For instance, if one were advising a client in respect of a claim against him of several millions of dollars, it might be that the total time involved was only a few hours. It might also be that the claim was largely valid and that the solicitor's advice was, of necessity, to pay all or most of the claim, i.e., the result achieved could not be considered to be all that one might have hoped for. Surely, the facts that little time was expended and the result achieved was not obviously excellent should not operate to unduly restrict the fee properly chargeable for those services. It might well be that a proper consideration of factors 3, 4, 5 and 6 as listed above should, in the case referred to, outweigh substantially the effect of factors 1 and 7. All I am attempting to make clear is that the first factor listed above, time expended, is not, in most cases, the overriding factor, nor even the most important. On the other hand, there are comparatively few cases where the time factor can be completely ignored. I propose to consider each of the eight factors already listed as it relates to the solicitors' services in the present case.
8 Although I realize that Mr. Lal is not a lawyer or a paralegal, the services he and other immigration consultants provide, though not defined per se as "legal services," have every likeness to legal services and have a tremendous effect on persons. I therefore choose to look at these factors as applied in the case before this court.
1. The time expended
Mr. Lal states that he spent at least 35 hours on this case. From the evidence adduced, I find this hard to believe. I even noticed in court that the size of Mr. Lal's file was rather thin. More concerning is the lack of time dockets and/or notes on the work done. I am not convinced that 35 hours was ever spent on this file. Perhaps around ten hours as an upper limit (if that).
2. The legal complexity of the matters dealt with
This was a straight forward application - very standard. There was nothing complex about this case.
3. The degree of responsibility assumed
Mr. Lal assumed on account of his client all the responsibility that an immigration consultant would normally assume in agreeing to act for and advising with respect to a temporary work permit. There was nothing unusual or extraordinary about this case.
4. The monetary value of the matters in issue
Not applicable in this case.
5. The importance of the matters to the client
This matter was obviously of considerable importance to the plaintiff. Having said that, I am concerned and accept the evidence of the plaintiff, that he was not afforded the consideration that he ought to have. Mr. Lal owed it to his client to keep him informed of matters and weighing the evidence in my observing the plaintiff and Mr. Lal in my courtroom, coupled with the lack of notes on the part of Mr. Lal, I do not think he fulfilled this duty to his client.
6. The degree of skill and competence demonstrated
I see nothing from the evidence that convinces me that the defendant comes close to deserving $12,200.00 in US funds; the quoted fee.
7. The results achieved
There was none.
8. The ability of the client to pay
Neither Mr. Bikram nor the plaintiff were people of means. The evidence was that the funds had to be borrowed.
9 Immigration consultants "escaped" Paralegal Licensing by the Law Society of Upper Canada. They are, nevertheless, governed by the Canadian Society of Immigration Consultants (CSIC), a not-for-profit, self-regulatory body of which Mr. Lal is a member. There are standards that must be met and in my mind, these standards of care fell short:
(a) The work done was nothing out of the ordinary and I questioned, as the evidence unfolded, whether Mr. Lal truly went out of his way in seeking potential employers for the plaintiff. Quite frankly, I find that Mr. Lal simply collected names of employers for other clients; the plaintiff happening to be one of them.
(b) The end result was "nil," other than a bonus of $9,350.00 to the defendant.
(c) It's easy to blame the client, as did Mr. Lal, alleging documents were not provided on time. Why were there no letters to the client demanding these?
(d) The costs are plainly exorbitant and out of line. Not only were there no time records, there were no itemized or even non-itemized accounts rendered to show what work was done. It is has been said: "There are those who bill what the market can bear." In this case, the plaintiff did not bear it and issued his claim.
(e) Although it appeared from his evidence that Mr. Lal "knows his stuff," I cannot, in light of what I have seen and heard, see how he applied his special knowledge this in this case.
(f) There is no reason that this matter should have taken two years and then with no results.

10 In short, I find that the defendant breached his own contract and has not met the standards of providing fair and complete services to the plaintiff.

Order

11 I am ordering the defendant to pay to the plaintiff the sum of $10,000.00. This is all inclusive, that is, including:
(a) repayment of the $9,350.00 laid out by the plaintiff,
(b) prejudgment interest and
(c) costs.

M. KLEIN DEPUTY J.

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