In a series of ironic twists, the lawyer who succeeded in bringing about the tort for invasion of privacy in Ontario has been facing accusations of incompetence by the victorious plaintiff who has now found herself incurring more costs than gains from the groundbreaking case.
Lawyer Christopher Du Vernet, counsel for Sandra Jones, the plaintiff in the landmark privacy ruling in Jones v. Tsige, successfully sued his former client after she failed to pay her legal tab. In return, Jones unsuccessfully accused Du Vernet of failing to represent her properly.
The appeal court created waves last year when it recognized the new legal tort of intrusion upon seclusion that came out of Jones’ lawsuit against her colleague, Winnie Tsige.
Tsige, who was in a common law relationship with Jones’ former husband, was snooping on her colleague’s financial information from a work computer. She and Jones’ ex-husband had a money-related dispute and she was seeking details of his finances.
When Jones first brought a claim for invasion of privacy against Tsige with Du Vernet’s help, the Superior Court rejected it. But Jones and Du Vernet took the case to the appeal court, which set aside the Superior Court’s decision in January 2012 and ruled that privacy is a legitimate ground for a civil claim.
Jones received $10,000 in damages, but the appeal court didn’t award costs against Tsige after reasoning that the case was a novel one. Jones had sought $90,000 in damages, a permanent injunction, and costs, according to Du Vernet’s factum.
Later in February 2012, things took a different turn when Du Vernet brought a case against Jones for her unpaid legal bills. He had represented Jones on a deferred-fee basis pending a decision or a settlement in the case, according to a Feb. 19 Superior Court ruling in his lawsuit against her. While the total bill was almost $130,000, Du Vernet was seeking about $68,000 after collecting the $10,000 awarded to Jones by the appeal court.
Jones denied the allegations and filed a counterclaim against Du Vernet seeking to have him return the fees she had already paid him because he lacked “professional conduct, such as failure to give proper advice, failure to represent her interests, and breach of fiduciary duty,” noted Superior Court Justice Beth Allen in the February decision.
But after considering the issues, Allen threw out Jones’ counterclaim and ordered her to pay the legal fees following a determination of the amounts by an assessment officer.
“I am satisfied that throughout his retainer, Mr. Du Vernet represented Ms. Jones in an exemplarily professional fashion,” wrote Allen. She added that Du Vernet “more than ably” advised Jones about her chances of success, possible courses of action, the potential cost consequences, and ways of mitigating her loss.
“Very importantly, against considerable legal odds, Mr. Du Vernet succeeded in winning on appeal and through his efforts paved the way for the development of a new tort in Canada,” Allen noted.
“This is no minor accomplishment. It would be a pleasure to the court, and most certainly to clients, if every lawyer served their clients with such attentiveness, dedication, and perseverance.”
Allen noted Jones’ claim was inconsistent with written records that show Du Vernet had fully advised her on the terms of her litigation. The judge awarded an additional $16,000 in costs against Jones for the most recent lawsuit.
Du Vernet says the case has broader implications for both lawyers and the public.
“The ruling is a warning to anyone who is going to attack the integrity of their counsel in an effort to avoid paying a cost,” he says, adding that the court in this case has “made a declaration expressly affirming counsel’s professionalism and competence.”
It’s also a lesson that lawyers should keep written evidence of all correspondence detailing their advice to clients, he notes.
For his part, Jones’ counsel Paul Koven says, “At no point in time was Ms. Jones provided with a litigation estimate of anticipated expenses.”
Koven says he can’t speak about the evidence Allen considered against his client as there’s a possibility of an appeal. He did say, however, that the case highlights the inaccessibility of the justice system due to the exorbitant cost of civil litigation.
“This is an issue that’s going to be before the courts on a more frequent basis given that litigation costs are only escalating,” he says. “Perhaps as a profession, we have fallen short somehow in doing our part to ensure that justice is accessible to everyone regardless of the size of their pocketbook.”
For Du Vernet, an appeal in the case would be “foolish.”
“I think it’s foolish enough to take it this far,” he says.
“What had happened here is the court felt the need to refute very serious allegations of misbehaviour the client had made in effort to avoid our bill,” he adds.
In addition, Jones was “expressly warned about” the risk she might not receive her costs from Tsige, says Du Vernet.
In his factum, Du Vernet quoted from correspondence he had with Jones in which she said, “At the end of the day, I will need to pay my legal costs regardless of how much the court awards me and therefore would like to carefully monitor the costs.” That remark, he claimed, is proof that Jones was aware of the cost situation she was in.
“The defendant clearly understood that her obligation to pay was independent from the outcome of the case, contrary to what she now alleges,” he wrote.
In her decision, Allen pointed out that if clients are going to bring claims of incompetence by their counsel, they had better have the grounds to prove it.
“Certainly, clients are entitled to have an assessment of their lawyers’ fees,” she wrote.
“They cannot, however, be permitted to enjoy a deferred fees arrangement, benefit from able legal representation, and then turn around and refuse to pay the bill, raising groundless and dishonest challenges to their lawyers’ competence.”
For more, see "Privacy ruling long overdue" and "Appeal court to consider privacy tort."