Digest: Cowessess First Nation No. 73 v Phillips Legal Professional Corporation, 2018 SKQB 156

Date:May 18, 2018

Reported as: 2018 SKQB 156

Docket Number: QBG 1100/16 JCR , QB17544

Court: Court of Queen's Bench

Date: 2018-05-18

Judges:

  • Barrington-Foote

Subjects:

  • Statutes � Interpretation � Legal Professions Act, 1990, Section 67, Section 71
  • Professions and Occupations � Lawyers � Fees � Assessment

Digest: The applicant, Cowessess First Nation, applied for an order pursuant to ss. 67 and 71 of The Legal Profession Act, 1990 (LPA), referring certain bills issued by the respondent to the registrar for assessment. The bills totaled $982,560 and were issued in relation to many different files dating from September 2013 to May 2016. Of the bills, 16 were issued in May 2016 and had been previously referred for assessment. The other 67 were received and paid for more than 30 days before the application was filed and therefore could not be referred for assessment, unless the court was satisfied that it was in the interests of justice to do so. The respondent had provided legal services to the band council during a time when it was divided into two political factions. One faction was composed of four councilors who deposed that they were infrequently invited and thus intentionally excluded from most council meetings. There was no formal written retainer agreement with the respondent until June 2015 when the Chief, and the four councilors who supported him, signed one. The retainer stated that the applicant understood that it had the right to have accounts assessed under the LPA but that payment of amounts billed would be consistent with the agreement and that the amounts were reasonable. Three weeks before the band election was held, the Chief and his four councilors signed a Band Council Resolution (BCR) that requested the respondent continue acting as counsel and approved a further retainer agreement. This agreement also contained the right to assess accounts. The BCR and 2016 retainer also dealt with invoices issued prior thereto and stated that the signatories had reviewed invoices attached in schedules A, B and C, that they were fair and reasonable, and they were pleased with the legal services rendered by the respondent. These invoices contained thousands of entries and covered work done from 2013 to February 2016. The schedule A invoices were paid more than 30 days before the application was filed. The schedule B invoices were paid on April 6, 2016 and the schedule C invoices were paid after the application was filed. The election was held on April 27, 2016 and on the following day, the new Chief and councilors terminated the retainer. The applicant argued that it was entitled to apply under s. 67 and to relief based on a stand-alone right to assessment created by s. 71 of the LPA. The issues raised by the parties included whether: 1) an Indian band is a �person� within the meaning of s. 67 of the LPA and therefore entitled to apply for assessment pursuant to s. 67(1)(a); 2) s. 71 of the LPA creates a right to apply for assessment as long as the application is made within 30 days after the date the bill is paid; 3) ss. 67 and 71 of the LPA are inapplicable to the applicant by virtue of the doctrine of interjurisdictional immunity due to their impact on Canada�s jurisdiction regarding Indians and Lands Reserved for Indians pursuant to s. 91(24) of the Constitution Act, 1867? The respondent argued that the ability of the applicant to discharge its obligations pursuant to the Indian Act would be fundamentally impaired if it were not permitted to retain legal counsel to assist it in the conduct of band council meetings, essential to its capacity to self-govern. In addition, the respondent argued that the sections were inoperable in relation to the applicant pursuant to the doctrine of paramountcy as a result of inconsistency with the applicant�s financial bylaw passed by a BCR, a federal regulation. The bylaw confirmed that schedules A, B and C invoices were final and would be not adjusted; and 4) some or all of the disputed accounts should be referred for assessment pursuant to ss. 67 or 71 of the LPA.
HELD: The application was granted. The court found with respect to each issue that: 1) an Indian band is a person within the meaning of s. 67(1)(a)
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