Niam v. Silverberg, 2015 ABQB 682

• Judge: Brooker, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 20, 2015
• Citations: 2015 ABQB 682;[2015] A.R. TBEd. NO.021

Niam v. Silverberg, [2015] A.R. TBEd. NO.021

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. NO.021

Nouracham Niam (applicant) v. Christine Silverberg (respondent)

(1401 10012; 2015 ABQB 682)

Indexed As: Niam v. Silverberg

Alberta Court of Queen's Bench

Judicial District of Calgary

Brooker, J.

October 28, 2015.

Summary:

The applicant entered into a contingency fee agreement (CFA) with the respondent solicitor to defend a forfeiture application made by the Crown regarding shares that the applicant owned. The applicant challenged the enforceability of the CFA, arguing that while the physical shares had been returned, the value of the those shares had not been.

The Alberta Court of Queen's Bench held that the CFA was valid and enforceable. The court interpreted the CFA and agreed with the respondent that while the money value of the shares was intended to constitute the contingent compensation, the contingent event was the return of the shares. The court held that the applicant failed to act in a commercially reasonable manner by not divesting adequate shares on the open market in order to satisfy the respondent's account. Further, the applicant's obligation to satisfy that account was not suspended by the intervening actions of the U.K. Serious Fraud Office which seized the shares. The court held that, on the unique, exceptional, rare facts of this case, the applicant was not able to rely on rule 10.8 to set aside the CFA, notwithstanding that she was never formally served by the respondent with a fully executed copy of the agreement. The applicant was not the typical contingent fund client that the rules were designed to protect. In addition to possessing financial means, she was worldly, politically connected and highly educated. Further, she had independent legal counsel advocating on her behalf during the drafting and execution of the CFA. On November 4, 2013, the applicant and her U.S. counsel had a fully executed copy of the CFA. In fact, the applicant had the original one signed by her (an electronic version of the fully executed CFA having been returned to the respondent). The court held that November 4, 2013, was the effective date of service. To void the CFA simply because the respondent did not, upon receipt of the fully executed document from the applicant on November 4, 2013, turn around and resend the same document back to the applicant would be a triumph of form over substance.

Barristers and Solicitors - Topic 3126

Compensation - Agreements - Contingent fees - General - See paragraphs 1 to 141.

Barristers and Solicitors - Topic 3133

Compensation - Agreements - Contingent fees - Invalid or unenforceable agreements - See paragraphs 108 to 140.

Contracts - Topic 7416

Interpretation - General principles - Most commercially reasonable interpretation - See paragraphs 47 to 50 and 70 to 98.

Practice - Topic 8

General principles and definitions - Effect of noncompliance with rules - See paragraphs 108 to 140.

Practice - Topic 2657

Service - Validation - Nunc pro tunc - See paragraphs 108 to 140.

Words and Phrases

Action proceeds - The Alberta Court of Queen's Bench interpreted the meaning of this phrase as found in a contingency fee agreement - See paragraphs 33 to 51.

Words and Phrases

As a result of either negotiations or the prosecution and defence of the action - The Alberta Court of Queen's Bench interpreted the meaning of this phrase as found in a contingency fee agreement - See paragraphs 65 to 69.

Words and Phrases

Commercially reasonable - The Alberta Court of Queen's Bench discussed the meaning of this phrase as found in a contingency fee agreement - See paragraphs 70 to 107.

Words and Phrases

Negotiations - The Alberta Court of Queen's Bench interpreted the meaning of "negotiations" as found in a contingency fee agreement - See paragraphs 52, 53 and 60 to 64.

Words and Phrases

Prompt - The Alberta Court of Queen's Bench interpreted the meaning of "prompt" as found in a contingency fee agreement - See paragraphs 70 to 98.

Words and Phrases

Prosecution and defence of the action - The Alberta Court of Queen's Bench interpreted the meaning of this phrase as found in a contingency fee agreement - See paragraphs 52, 54 to 59.

Counsel:

Darin Hannaford and Debra Curcio Lister, for the applicant;

Kenneth F. Baily, Q.C., for the respondent.

This application was heard on February 20, 2015, by Brooker, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on October 28, 2015.