Ashraf v. Zinner Law Office, (2013) 578 A.R. 334 (QB)

• Judge: Sullivan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 13, 2013
• Citations: (2013), 578 A.R. 334 (QB);2013 ABQB 730

Ashraf v. Zinner Law Office (2013), 578 A.R. 334 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.113

Shidan Ashraf (appellant) v. Zinner Law Office (respondent)

(1201 15851; 2013 ABQB 730)

Indexed As: Ashraf v. Zinner Law Office

Alberta Court of Queen's Bench

Judicial District of Calgary

Sullivan, J.

December 10, 2013.

Summary:

Ashraf retained Zinner to provide legal services in relation to a potential lawsuit against his employer for injuries allegedly caused by the abusive conduct of management personnel. Zinner billed Ashraf some $13,000 for work up to and including filing and service of the Statement of Claim. All billable work was charged at Zinner's rate of $525 per hour. Ashraf appealed from a Review Officer's assessment of Zinner's accounts. The questions on appeal were whether the Review Officer committed a reversible error in his findings of fact or application of the factors used to assess the reasonableness of lawyers' accounts.

The Alberta Court of Queen's Bench dismissed the appeal and confirmed the Review Officer's decision.

Barristers and Solicitors - Topic 3243

Compensation - Taxation or assessment of accounts - Jurisdiction - [See fourth Barristers and Solicitors - Topic 3257 ].

Barristers and Solicitors - Topic 3252

Compensation - Taxation or assessment of accounts - Where hourly rate agreed upon - [See first Barristers and Solicitors - Topic 3257 ].

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - Ashraf retained Zinner to provide legal services in relation to a potential lawsuit against his employer - Zinner billed Ashraf some $13,000 for work up to and including filing and service of the Statement of Claim - All billable work was charged at Zinner's hourly rate of $525 - Ashraf fled an Appointment for Review of Retainer Agreement and Lawyer's Charges - The Review Officer found the work to have been of the nature a senior lawyer would typically do - The Statement of Claim was not a "standard" statement of claim nor was it "lightly done" - Similarly, with regards to an opinion letter, he found it to have "become a matter of negotiation" - The Alberta Court of Queen's Bench held that the Review Officer did not commit a reversible error in those findings of fact - Ashraf had not pointed to any evidence that established that those findings met the threshold of being "clearly in error", nor had Ashraf identified any relevant and persuasive evidence overlooked by the Review Officer - It was inappropriate to consider a number of other arguments because the evidentiary record was deficient - Other issues fell outside the scope of the impugned accounts - See paragraphs 32 to 37.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - Ashraf retained Zinner to provide legal services - Zinner billed Ashraf in two invoices, totalling some $13,000 (the impugned accounts) - Ashraf expressed his displeasure with the amounts charged - The two then met to discuss the charges - A few days later, Ashraf sent Zinner an email, to which Zinner did not respond - He then paid Zinner $3,675 - Ashraf challenged the Review Officer's finding that there was never an agreement that the $3,675 was to represent full and final payment of the impugned accounts - The Alberta Court of Queen's Bench declined to find that the Review Officer committed a reversible error - Ashraf had not pointed to any evidence that demonstrated the Review Officer was "clearly in error" in making his findings - "Findings of fact on issues of this nature are incidental to a review officer's assessment of a reasonable quantum for legal services. Such incidental findings fall within the specialized expertise of review officers, and require a weighing of evidence and assessment of credibility unavailable to a chambers judge hearing an appeal." - See paragraph 40.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - A client appealed from a Review Officer's assessment of a lawyer's accounts - The client argued that the Review Officer erred in principle in his application of the criteria on which the reasonableness of lawyers' fees were assessed - The Alberta Court of Queen's Bench held that the client had not shown that the Review Officer applied an incorrect principle or was ignorant of a relevant principle - The Review Officer correctly identified sources for assessing the reasonableness of the impugned accounts, referring to the Rules of Court, the Law Society's Code of Conduct, and the common law - The Review Officer properly considered and applied factors relevant to the case - The client's arguments regarding the difficulty of the matter, time and effort required and spent, relevant agreements, skills provided, and the lawyer's experience and ability did not individually or collectively disclose a reversible error - "Review officers have considerably more expertise and experience in assessing the reasonableness of lawyers' accounts than this Court ... Affording the Review Officer the appropriate curial deference in this case, I am unable to find a reversible error in principle." - See paragraphs 42 to 48.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - Ashraf retained Zinner to provide legal services in relation to a potential lawsuit against his employer (SNC), for injuries allegedly caused by the abusive conduct of management personnel - He appealed from a Review Officer's assessment of Zinner's accounts - Ashraf asked the Court to consider the dismissal of his claim against SNC on the ground that it fell within the exclusive jurisdiction of the Workers' Compensation Board - He also asked that the additional lawyers' fees he had incurred in defending SNC's application be considered - The Alberta Court of Queen's Bench held that those issues were not relevant to the appeal, as they were not "on the record" before the Review Officer - "While the old rule 656 of the Alberta Rules of Court ... granted the Court authority to allow evidence beyond that which was before the review officer ... rule 10.26(3) does not give the court this power" - Any potential remedy available to Ashraf regarding his claim against SNC was outside the jurisdiction of the Court on an appeal from a Review Officer - Likewise, whether Zinner was negligent for failing to anticipate the WCB issue could only be determined by reference to events after the Review Officer's assessment - "[A] review of lawyers' charges is intended to determine whether the fees charged were reasonable, not whether the lawyer's professional negligence disentitles them to the fees contracted for" - Consequently, the Court declined to find that the Review Officer committed an error in principle - See paragraphs 49 to 51.

Barristers and Solicitors - Topic 3303

Compensation - Measure of compensation - Relevant considerations - [See third Barristers and Solicitors - Topic 3257 ].

Cases Noticed:

Fraser Milner Casgrain LLP v. Kristof Financial Inc. et al. (2012), 541 A.R. 245; 215 A.C.W.S.(3d) 1010; 2012 ABQB 359, refd to. [para. 26].

Repchuk v. Silverberg (2013), 563 A.R. 245; 2013 ABQB 305, refd to. [para. 27].

Rath & Co. v. Sweetgrass First Nation (2013), 559 A.R. 12; 2013 ABQB 165, refd to. [para. 29].

Carr & Co. v. Markdale Ltd. (1996), 197 A.R. 6 (Q.B.), refd to. [para. 29].

McLennan Ross v. Keen Industries Ltd. (No. 2) (1988), 86 A.R. 311; 59 Alta. L.R.(2d) 369 (C.A.), refd to. [para. 34].

Owners-Condominium Plan No. 911945 v. Zavislake and Meadows (1998), 215 A.R. 355; 1998 ABQB 160, refd to. [para. 34].

Brown v. Snyder & Associates (2004), 364 A.R. 266; 2004 ABQB 899, refd to. [para. 34].

MacDonald & Freund v. Chernetski (1987), 81 A.R. 142; 6 A.C.W.S.(3d) 7 (Q.B.), refd to. [para. 44].

Ashraf v. SNC Lavalin ATP Inc. (2013), 558 A.R. 221; 2013 ABQB 143 (Master), refd to. [para. 49].

Fontaine v. Veylan et al. (2002), 307 A.R. 390; 2002 ABQB 327, refd to. [para. 50].

Statutes Noticed:

Rules of Court (Alta.), 2010, rule 10.26 [para. 25].

Counsel:

Shidan Ashraf, the appellant, was self-represented;

Gabor I. Zinner, for the respondent.

This appeal was heard on September 13, 2013, before Sullivan, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision, dated December 10, 2013.