Cowling v. Carpenter et al., (2014) 591 A.R. 280 (QB)

• Judge: Schutz, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 09, 2014
• Citations: (2014), 591 A.R. 280 (QB);2014 ABQB 460

Cowling v. Carpenter (2014), 591 A.R. 280 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.100

Joan Cowling (appellant) v. John Carpenter, Gwen Gray, and Chivers Carpenter (respondents)

(1303 13585; 2014 ABQB 460)

Indexed As: Cowling v. Carpenter et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Schutz, J.

August 11, 2014.

Summary:

Cowling was a former client of Chivers Carpenter (the Firm), which successfully represented her in an application before the Alberta Human Rights Commission. There was no written retainer during the nearly five years of representation. Cowling and the Firm could not agree on legal fees. A Review Officer assessed the Firm's accounts on a quantum meruit basis, under rule 10.2(1). Cowling appealed, asserting that the assessment exceeded jurisdiction and demonstrated reversible errors. The Firm contended that (1) Cowling served the Notice of Appeal beyond the prescribed time period; (2) the assessment was within jurisdiction because there was no retainer agreement as to fees; and (3) the assessment was reasonable and demonstrated no error.

The Alberta Court of Queen's Bench dismissed the appeal. The Court allowed the appeal to proceed notwithstanding late service because Cowling met the test for an extension of time. The assessment was within the Review Officer's jurisdiction. The Review Officer was correct to assess the legal fees on a quantum meruit basis. The assessment demonstrated no reversible error in fact or principle.

Barristers and Solicitors - Topic 3041

Compensation - Agreements - General - In this particular case, there was no written retainer agreement or retainer letter, and no interim billing that was rendered between the period of 2008 and 2013 - A Review Officer assessed the legal fees on a quantum meruit basis - The Alberta Court of Queen's Bench, in dismissing the client's appeal, stated that "[a]s a general rule of practice, it is in both a lawyer's and client's best interest to have a written retainer agreement in place without delay. As recommended by the commentary under Item 2.06(1) of the Code of Conduct, lawyers should, as best practice, provide to the client in writing before or within a reasonable time after commencing a representation as much information regarding fees and disbursements, and interest, as is reasonable and practical in the circumstances, including the basis on which fees will be determined. A lawyer should also confirm with the client in writing the substance of all fee discussions that occur as a matter progresses, and a lawyer may revise an initial estimate of fees and disbursements. This is even more crucial in complicated, long-term cases to avoid situations such as this one." - See paragraphs 152 to 154.

Barristers and Solicitors - Topic 3243

Compensation - Taxation or assessment of accounts - Jurisdiction - On this appeal, the client argued that the Review Officer erred in jurisdiction by resolving the dispute as to the existence of a retainer agreement, rather than referring the dispute to the Court - The Alberta Court of Queen's Bench held that the Review Officer did not act without jurisdiction in assuming there was no dispute, and was entitled to proceed by way of quantum meruit assessment under rule 10.2(1), in the absence of a retainer agreement as to fees - The client's evidence before the Review Officer consistently indicated that there was no retainer agreement in place as to fees or method of billing - "The Rules prevent the assessment officer from answering any question about 'the terms of a retainer agreement': Rules, r. 10.18(1)(a). If there are no terms, there can be no questions. Thereby, the Review Officer did not exceed her jurisdiction in failing to refer any dispute as to terms to the court. Furthermore, because the retainer agreement did not provide otherwise (as it did not exist), the Review Officer properly applied quantum meruit under r. 10.2(1) of the Rules to assess the reasonableness of legal accounts charged by the Firm." - See paragraphs 93 to 119.

Barristers and Solicitors - Topic 3253

Compensation - Taxation or assessment of accounts - Where lawyer withdraws or is discharged - On this appeal, the client argued that the Review Officer erred in the quantum meruit assessment under rule 10.2, specifically by failing to take into account that the lawyer violated items 2.06 and 2.07 of the Code of Conduct by withdrawing representation - The client had declined a settlement offer against the lawyer's advice - The Alberta Court of Queen's Bench declined to find that the Review Officer committed an error in principle - The lawyer did not unilaterally withdraw representation; the choice was left with the client - The Review Officer, in determining reasonable fees, considered the lawyers' skill and competence, and even made a deduction to compensate for withdrawal of services - Additionally, the Review Officer took into consideration and made a further deduction for the fact that the client had to take her file to new counsel - See paragraphs 139 to 143.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - The appellant client filed a Notice of Appeal and Record of Proceedings on January 20, 2014, but failed to serve the Notice of Appeal on the respondent Law Firm until February 11, 2014, beyond the one month time-period as prescribed in rule 10.26 - The Law Firm contended that the client was precluded from appealing - The Alberta Court of Queen's Bench declined to dismiss the appeal on the basis of timeliness of service - The delay in serving the Notice of Appeal caused no prejudice, as conceded by the Firm - The delay was short, did not appear to be deliberate on the facts, and did not work irreparable harm to the Firm - There was also merit to the client's position on appeal; she raised arguments that required examination, or at least were arguable - Denying an appeal in this instance would be an overly technical approach to the Rules of Court - See paragraphs 78 to 92.

Barristers and Solicitors - Topic 3304

Compensation - Measure of compensation - Quantum meruit - Reasonable charges - A Review Officer assessed legal fees on a quantum meruit basis - The client appealed - The Alberta Court of Queen's Bench held that the Review Officer properly considered and applied all relevant factors under rule 10.2(1), and correctly identified sources for assessing the reasonableness of the accounts - She considered the complexities and nature of the particular proceeding, the particular stage of the file, the potential risks associated with ongoing litigation, and the prudence and reasonableness of work done - The Review Officer also considered the client's submissions regarding time spent and work done, alleged lack of involvement, lack of timeliness in requests for information, her issues with the settlement offer and alleged withdrawal of service, and came to reasoned decisions - Although the Review Officer did not expressly consider the timing and disclosure of fees under item 2.06 of the Code of Conduct, she had no jurisdiction to do so in any event - The Review Officer also made an appropriate deduction for new counsel having to review the file - The final certificate of taxation was not so high as to disclose an error in principle - See paragraphs 128 to 151.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - [See Barristers and Solicitors - Topic 3257 ].

Cases Noticed:

Cairns v. Cairns et al., [1931] 4 D.L.R. 819; 26 Alta. L.R. 69 (C.A.), refd to. [para. 66].

Ashraf v. Zinner Law Office (2013), 578 A.R. 334; 2013 ABQB 730, refd to. [para. 71].

Repchuk v. Silverberg (2013), 563 A.R. 245; 2013 ABQB 305, refd to. [para. 71].

Peterson v. Kirwood (1984), 52 A.R. 284; 25 A.C.W.S.(2d) 238 (Q.B. Master), refd to. [para. 72].

Fraser Milner Casgrain LLP v. Kristof Financial Inc. et al. (2012), 541 A.R. 245; 2012 ABQB 359, refd to. [para. 73].

Morrison v. Pantony (Rod) Professional Corp. (2008), 429 A.R. 259; 421 W.A.C. 259; 2008 ABCA 145, refd to. [para. 75].

Rath & Co. v. Sweetgrass First Nation (2013), 559 A.R. 12; 2013 ABQB 165, refd to. [para. 76]; dist. [para. 113].

Smoky Lake General and Auxiliary Hospital and Nursing Home District No. 73 (Board of Directors) v. Higdon (1983), 50 A.R. 185; 29 Alta. L.R.(2d) 215 (C.A.), refd to. [para. 90].

Johnston et al. v. Hader et al. (2010), 487 A.R. 101; 495 W.A.C. 101; 2010 ABCA 47, refd to. [para. 90].

Strilets v. Vicom Multimedia Inc. (2000), 274 A.R. 6; 2000 ABQB 616, refd to. [para. 90].

McDonald Crawford v. Morrow (2004), 348 A.R. 118; 321 W.A.C. 118; 2004 ABCA 150, refd to. [para. 97].

Lennie, DeBow & Martin v. Richter (1984), 55 A.R. 26; 25 A.C.W.S.(2d) 352 (Q.B. Master), refd to. [para. 100].

MacKimmie Matthews v. Hector (1998), 219 A.R. 163; 179 W.A.C. 163; 1998 ABCA 278, refd to. [para. 101].

Rusnak v. Commodity Investors Syndicate of Canada Limited (1984), 48 A.R. 311 (Q.B.), refd to. [para. 102].

Bhojani v. Ruff, [1997] A.R. Uned. 56 (C.A.), refd to. [para. 102].

Linton v. Prusak (1999), 241 A.R. 392; 1999 ABQB 241, refd to. [para. 102].

509703 Alberta Ltd. v. Witten Binder, 2000 ABQB 729, refd to. [para. 102].

Samson Cree Nation et al. v. O'Reilly & Associés (2013), 564 A.R. 169; 2013 ABQB 350, refd to. [para. 111].

Brown v. Snyder & Associates (2004), 364 A.R. 266; 2004 ABQB 899, refd to. [para. 126].

MacDonald & Freund v. Chernetski (1987), 81 A.R. 142; 6 A.C.W.S.(3d) 7 (Q.B.), refd to. [para. 132].

Fontaine v. Veylan et al. (2002), 307 A.R. 390; 2002 ABQB 327, refd to. [para. 140].

Tran v. Co-operators General Insurance Co., [2004] OFSCD No. 11 (Ont. Financial Services Commission), refd to. [para. 144].

Chagpar v. Minsos & Co. (1999), 254 A.R. 118 (Q.B.), refd to. [para. 146].

Russell & Dumoulin v. Farrell, [1997] B.C.T.C. Uned. 447 (S.C. Master), refd to. [para. 146].

MacIsaac and Co. v. Frayne, [2007] B.C.T.C. Uned. G02; 2007 BCSC 1620 (Reg.), dist. [para. 147].

LeBlanc v. Gilbert et al. (2013), 401 N.B.R.(2d) 258; 1041 A.P.R. 258; 2013 NBQB 75 (T.D.), dist. [para. 147].

Statutes Noticed:

Rules of Court (Alta.), 2010, rule 10.2(1) [paras. 53, 94]; rule 10.18(1)(a) [para. 98]; rule 10.26, rule 13.5(2) [para. 83].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Encyclopedia (2003), vol. 1, pp. 18-19, 18-20 [para. 85].

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2014), vol. 1, pp. 10-28 [para. 84]; 13-13 [paras. 85, 86].

Counsel:

David Cowling, for the appellant;

John Carpenter (Chivers Carpenter), for the respondents.

This appeal was heard on May 9, 2014, before Schutz, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons, dated at Edmonton, Alberta, on August 11, 2014.