Carter v. Blake, (1982) 41 A.R. 418 (NWTCA)

• Judge: Lieberman, McClung and Harradence, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: November 05, 1982
• Jurisdiction: Northwest Territories
• Citations: (1982), 41 A.R. 418 (NWTCA)

Carter v. Blake (1982), 41 A.R. 418 (NWTCA)

MLB headnote and full text

Carter v. Blake

(Appeal No. S.C. 397)

Indexed As: Carter v. Blake

Northwest Territories Court of Appeal

Lieberman, McClung and Harradence, JJ.A.

November 5, 1982.

Summary:

Blake was convicted of break and enter and sentenced to imprisonment for 2 years. While in prison Blake retained a lawyer to appeal his conviction based on a letter from a witness who recanted his incriminating testimony at Blake's trial. The lawyer was paid $2,000 pursuant to a written retainer. Before the appeal was heard Blake discharged the lawyer. The lawyer rendered an account for $1,500 plus disbursements which on taxation was reduced to $900. The lawyer appealed the taxation to the Northwest Territories Supreme Court.

The Northwest Territories Supreme Court dismissed the appeal based on the fact finding of the taxing officer that the $2,000 retainer was to cover all costs surrounding the appeal. The lawyer appealed to the Northwest Territories Court of Appeal.

The Northwest Territories Court of Appeal dismissed the appeal.

Practice - Topic 4367

Costs - Appeals from taxation - Review of fact finding of taxing officer - The Northwest Territories Court of Appeal stated that normally a fact finding by a taxing officer should be treated on the same footing as fact findings made by a trial judge (see paragraph 7).

Barristers and Solicitors - Topic 3168

Compensation - The retainer, scope of - A lawyer was retained by a prisoner to appeal the prisoner's conviction based on a letter from a witness who recanted his incriminating testimony at the prisoner's trial - The Northwest Territories Court of Appeal stated that the lawyer was not entitled to be paid for time investigating the truth of the prisoner's story unless the client agreed to pay for such an investigation - The court stated that the client retains the lawyer's advocacy and not his judgment (see paragraph 9).

Cases Noticed:

Fairway Construction Ltd. v. Maguire, 71 W.W.R.(N.S.) 396, ref'd to. [para. 4].

Re Solicitor (1976), 3 C.P.C. 148 (Ont. C.A.), ref'd to. [para. 7].

Smith et al. v. McInnis, [1978] 2 S.C.R. 1360, ref'd to. [para. 7].

Milbourne v. Lawrence and Shaw, [1979] 5 W.W.R. 269, ref'd to. [para. 7].

Robins v. National Trust Co. Ltd., [1927] A.C. 515, ref'd to. [para. 7].

Rondel v. Worsely, [1966] 3 All E.R. 657, ref'd to. [para. 9].

Statutes Noticed:

Rules of Court (N.T.), rule 592, rule 593 [para. 7].

Counsel:

P.C. Fuglsang, for the appellant;

D.M. Cooper, for the respondent.

This appeal was heard by LIEBERMAN, McCLUNG and HARRADENCE, JJ.A., of the Northwest Territories Court of Appeal. The judgment of the Court of Appeal was delivered by McCLUNG, J.A., at Yellowknife, Northwest Territories on November 5, 1982.