Rath & Co. v. Sweetgrass First Nation, (2013) 559 A.R. 12 (QB)

• Judge: Tilleman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 16, 2013
• Citations: (2013), 559 A.R. 12 (QB);2013 ABQB 165

Rath & Co. v. Sweetgrass First Nation (2013), 559 A.R. 12 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.145

Rath & Company (appellant) v. Sweetgrass First Nation (respondent)

(1201 00570; 2013 ABQB 165)

Indexed As: Rath & Co. v. Sweetgrass First Nation

Alberta Court of Queen's Bench

Judicial District of Calgary

Tilleman, J.

March 15, 2013.

Summary:

A law firm represented the Sweetgrass First Nation (SFN) for several years for a variety of legal work. Most accounts were billed at hourly rates. A treaty litigation account was subject to a contingency fee agreement, which provided for compensation at an hourly rate if SFN discharged the firm before the litigation was completed. SFN discharged the law firm. The law firm's accounts totalled $263,668.75 billed hours plus disbursements. SFN sought a review of the accounts. A Review Officer reduced the accounts by $151,931.25 to $124,196.81 inclusive of disbursements, a 55% reduction of the total amount billed. The law firm appealed.

The Alberta Court of Queen's Bench allowed the appeal and remitted the accounts for a new review. Where necessary, questions of interpretation would need to come back to the court for resolution. The Review Officer interpreted the retainer agreements, which he had no jurisdiction to do. Once he found that there was a "question arising about the terms of a retainer agreement", rule 10.19(1)(a) required that the matter be referred to the court for resolution. The Review Officer did not do so. That affected his assessment of the quantum of those reviewed accounts. The court opined that "Review Officers are afforded substantial deference but, in these particular circumstances, I would have found the reasons inadequate to support what are, at face value, very significant reductions to the accounts in question".

Practice - Topic 7605

Costs - Taxation of costs - Powers of taxing officer - At issue was a Review Officer's jurisdiction to interpret a retainer agreement - Rule 10.18(1)(a) provided that a review officer "must refer any question arising about the terms of a retainer agreement to the court for a decision or direction", but rule 10.9 provided that "the reasonableness of a retainer agreement and the reasonableness of a lawyer's charges are subject to review by a review officer in accordance with these rules, despite any agreement to the contrary" - The Alberta Court of Queen's Bench held that a Review Officer had no jurisdiction to interpret a retainer agreement - The court stated that "the interplay between rules 10.18(1)(a) and 10.9 works as follows. First, the retainer agreement must be understood. Either its meaning is clear on its face or the parties may agree in front of the review officer as to the meaning; however, if there are doubts about the interpretation, the court must ascertain its meaning. Thus, when the retainer agreement is properly understood, the review officer may consider if the retainer agreement is reasonable." - See paragraphs 30 to 40.

Practice - Topic 7618

Costs - Taxation of costs - Reasons of taxing officer - A law firm represented the Sweetgrass First Nation (SFN) for several years for a variety of legal work - Most accounts were billed at hourly rates - A treaty litigation account was subject to a contingency fee agreement, which provided for compensation at an hourly rate if SFN discharged the firm before the litigation was completed - SFN discharged the law firm - The law firm's accounts totalled $263,668.75 billed hours plus disbursements - SFN sought a review of the accounts - A Review Officer reduced the accounts by $151,931.25 to $124,196.81 inclusive of disbursements, a 55% reduction of the total amount billed - The treaty litigation account itself was reduced by 63% - The Alberta Court of Queen's Bench allowed the law firm's appeal and remitted the accounts for a new review - Where necessary, questions of interpretation would need to come back to the court for resolution - The Review Officer interpreted the retainer agreements, which he had no jurisdiction to do - Once he found that there was a "question arising about the terms of a retainer agreement", rule 10.19(1)(a) required that the matter be referred to the court for resolution - The Review Officer did not do so - That affected his assessment of the quantum of those reviewed accounts - Apart from the jurisdictional error, the court opined that "Review Officers are afforded substantial deference but, in these particular circumstances, I would have found the reasons inadequate to support what are, at face value, very significant reductions to the accounts in question" - See paragraphs 41 to 100.

Practice - Topic 8361

Costs - Appeals - Appeals from taxation - General (incl. standard of review) - A law firm appealed a Review Officer's reduction of its billed accounts by 55% - At issue was the standard of review - The Alberta Court of Queen's Bench held that whether a Review Officer proceeded with jurisdiction was a true question of jurisdiction subject to the correctness standard of review - Where a Review Officer acted within his jurisdiction, the standard of review was different: "an appeal from a review officer's decision to this court is not de novo; it is an appeal on the record. ... A decision of a review officer should not be interfered with unless some improper principle was relied upon, the quantum of the reviewed account is so inordinately high or low as to reveal a mistaken principle, the review officer fails to consider the evidence and representations before the officer, or a finding of fact is clearly in error ... In ascertaining value, the courts have again held that the review officer employs a specialized expertise and is entitled to deference ... But, where interference with a review officer's decision is justified, the court may reassess the account itself or return it for a new assessment, among other possible remedies" - See paragraphs 19 to 29.

Cases Noticed:

Lennie, DeBow & Martin v. Richter (1984), 55 A.R. 26 (Q.B. Master), refd to. [para. 31].

Peterson v. Kirwood (1984), 52 A.R. 284 (Q.B. Master), refd to. [para. 31].

MacKimmie Matthews v. Hector (1998), 219 A.R. 163; 179 W.A.C. 163 (C.A.), refd to. [para. 32].

Rusnak v. Commodity Investors Syndicate of Canada Ltd. (1982), 48 A.R. 311 (Q.B.), refd to. [para. 32].

Bhojani v. Ruff, [1997] A.R. Uned. 56 (C.A.), refd to. [para. 32].

Panther Petroleum Ltd. v. Code Hunter, [2002] A.R. Uned. 232; 112 A.C.W.S.(3d) 225; 2002 ABQB 158, refd to. [para. 32].

Darichuk v. Currie, [1999] A.J. No. 2 (Taxing Officer), refd to. [para. 39].

Vass v. Engelking (1997), 215 A.R. 201 (Taxing Officer), refd to. [para. 40].

Yang et al. v. Overseas Investments (1986) Ltd. et al. (1995), 166 A.R. 178 (Q.B.), refd to. [para. 47].

Granville Savings and Mortgage Corp. v. Slevin et al., [1993] 4 S.C.R. 279; 160 N.R. 243; 88 Man.R.(2d) 145; 51 W.A.C. 145, refd to. [para. 47].

051766 N.B. Ltd. v. Wilbur et al. (2010), 357 N.B.R.(2d) 75; 923 A.P.R. 75; 2010 NBQB 34, refd to. [para. 47].

Omers Energy Inc. v. Energy Resources Conservation Board (Alta.) et al. (2011), 513 A.R. 292; 530 W.A.C. 292; 2011 ABCA 251, refd to. [para. 57].

R. v. D.I., [2012] 1 S.C.R. 149; 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, refd to. [para. 60].

Canada Life Casualty Insurance Co. v. Pahl (1998), 207 A.R. 65 (Q.B.), refd to. [para. 72].

Braithwaite, Boyle and Associates et al., Re (1995), 171 A.R. 76 (Q.B.), refd to. [para. 72].

MacDonald & Freund v. Chernetski (1987), 81 A.R. 142 (Q.B.), refd to. [para. 77].

William v. British Columbia et al. (2012), 324 B.C.A.C. 214; 551 W.A.C. 214; 33 B.C.L.R.(5th) 260; 2012 BCCA 285, refd to. [para. 80].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 81].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 82].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 86].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 87].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 87].

R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; 200 N.R. 321; 80 B.C.A.C. 269; 130 W.A.C. 269, refd to. [para. 87].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 87].

R. v. Morris (I.) et al., [2006] 2 S.C.R. 915; 355 N.R. 86; 234 B.C.A.C. 1; 387 W.A.C. 1; 2006 SCC 59, refd to. [para. 87].

Statutes Noticed:

Rules of Court (Alta.), rule 10.9 [para. 35]; rule 10.18(1)(a) [para. 33].

Authors and Works Noticed:

Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples Volume 1: Looking Forward, Looking Back (1996), p. 33 [para. 83].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 165 [para. 59].

Counsel:

Edward H. Molstad, Q.C., and Jeffrey R.W. Rath, for the appellant;

J. Trina Kondro, for the respondent.

This appeal was heard on January 16, 2013, before Tilleman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 15, 2013.