Repchuk v. Silverberg, 2013 ABQB 305

• Judge: Tilleman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 22, 2013
• Citations: 2013 ABQB 305;(2013), 563 A.R. 245 (QB)

Repchuk v. Silverberg (2013), 563 A.R. 245 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JN.109

Tracy Natalia Repchuk (also known as Tracy Natalia Mierzewski)

(appellant) v. Christine E. Silverberg (respondent)

(1201 02949)

Shellette Lesley Scheidt (also known as Shellette Lesley Heins and Shellette Lesley Shields)

(appellant) v. Christine E. Silverberg (respondent)

(1201 03471; 2013 ABQB 305)

Indexed As: Repchuk v. Silverberg

Alberta Court of Queen's Bench

Judicial District of Calgary

Tilleman, J.

June 3, 2013.

Summary:

These were appeals from a Review Officer's assessment of a lawyer's accounts in two high conflict family law disputes. The lawyer was the same in both accounts. The Review Officer had granted significant reductions in the lawyer's accounts. The lawyer asked for costs of the appeal and interest against each client in accordance with the Judgment Interest Act. She did not file a cross-appeal. The appeals were heard concurrently.

The Alberta Court of Queen's Bench dismissed both appeals. Under rule 10.27(1)(a), the court confirmed the decision of the Review Officer in each appeal. Under rule 10.20, each decision of the Review Officer was to be entered as a judgment of the court. Given the results, the lawyer was entitled to judgment interest.

Barristers and Solicitors - Topic 3243

Compensation - Taxation or assessment of accounts - Jurisdiction - [See fourth and fifth Barristers and Solicitors - Topic 3257 ].

Barristers and Solicitors - Topic 3252

Compensation - Taxation or assessment of accounts - Where hourly rate agreed upon - [See eighth Barristers and Solicitors - Topic 3257 ].

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - Two clients appealed from a Review Officer's assessment of a lawyer's accounts - The clients argued that the Review Officer erred by failing to give them adequate time for their submissions - The Alberta Court of Queen's Bench found that the clients were afforded an adequate opportunity to present their case - "Once the parties have laid out the facts and made their points, further repetition and elaboration on stated positions will not enhance fairness, but only increase cost, and delay resolution. ... While the Review Officer encouraged the clients to be careful with their use of time, he held long hearings to ensure each client had the opportunity to present their case. The Review Officer placed no hard limit on the time for submissions. The records shows that the extensive argument before the Review Officer simply began to repeat itself. It is telling that, on appeal, counsel did not point to any submission that either client might have made, but was unable to make because of a restriction on submissions." - See paragraphs 46 to 50.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - Two clients appealed from a Review Officer's assessment of a lawyer's accounts - An issue was whether the Review Officer erred in failing to provide a fair hearing by failing to review all of the lawyer's accounts and consider the clients' submissions - The Alberta Court of Queen's Bench stated that there was no point to requiring adequate time for submissions if the decision maker had no obligation to consider them - The Review Officer's reasons revealed that he was alert to the submissions of the parties and considered those submissions in arriving at a decision - In reviewing the accounts, the Review Officer need not go line by line, as that would defeat the purposes of the review procedure - The parties drew his attention to the relevant matters and it was clear he became familiar with the accounts in issue and the problems presented - See paragraphs 51 and 52.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - Two clients appealed from a Review Officer's assessment of a lawyer's accounts - Given the breadth of the accounts, the Review Officer issued oral reasons - The Alberta Court of Queen's Bench addressed the question of whether the Review Officer erred by failing to give adequate reasons for his decision - "Where reasons are required, they should demonstrate 'justification, transparency and intelligibility' in the decision-making process ... A review officer is an expert decision maker and is presumed to know the principles applicable to a review proceeding. Therefore, a review officer's reasons need not be extensive. ... Because of their nature, review awards are perhaps subject to the appearance of arbitrariness, although they may not actually be arbitrary or unfair." - The reasons demonstrated an understanding of the issues and the law to be applied - Combined with the record before the Review Officer, they were sufficient to demonstrate his reasoning - "While it is impossible to determine to what degree each factor precisely impacted his analysis, this is not required and it is clear that the Review Officer appreciated the dynamics of each file and concerns of the clients" - The reasons justified the decision, gave transparency to the process and demonstrated decision making that resulted in large deductions in favour of the clients - See paragraphs 53 to 59.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - The Alberta Court of Queen's Bench stated that "Review officers cannot interpret retainer agreements. ... It is important to emphasize that the jurisdictional limit which prevents a review officer from interpreting a retainer agreement does not mean that every time a retainer agreement exists the review officer must make a court reference. That is not what the Rules intend and, indeed, would undermine the ability for a review to be a 'faster, less expensive alternative' to filing a statement of claim ... [A] review officer need not refer to this Court a question on the interpretation of a retainer agreement where the meaning of the retainer agreement is clear on its face or the parties agree on its meaning." - See paragraphs 63 to 66.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - Clients appealed from a Review Officer's assessment of a lawyer's accounts - The clients argued that the Review Officer erred in jurisdiction by interpreting, or failing to interpret, the retainer agreement - Each retainer agreement contained the following wording under Costs and Expenses: "Our invoices will include an administrative charge of 10% of professional fees in lieu of customary charges for such expenses" - At the review hearings, it was argued that the 10% charge, in particular on top of the lawyer's $500 per hour rate, was excessive and unreasonable - The Alberta Court of Queen's Bench held that the 10% charge provision did not require judicial interpretation - The meaning of the clause was clear - In reviewing for reasonableness, the Review Officer agreed with the clients that the 10% costs charge was too high - That was a reasonable conclusion given the 10% charge amounted to $50 per hour billed by the lawyer - The Review Officer applied the provision by determining whether certain work came within its scope - This was interpreting the work, not the clause - The Review Officer reviewed the retainer agreement for reasonableness, as rule 10.9 required, and properly took objection to the quantum of charges that would result from such a provision, incorporating that objection into the award granted - See paragraphs 67 to 76.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - Clients appealed from a Review Officer's assessment of a lawyer's accounts - An issue was whether the Review Officer failed to apply a necessary factor or applied one or more incorrect factors in assessing quantum - The Alberta Court of Queen's Bench stated that "[t]here are a wide variety of factors that a review officer should consider when reviewing a lawyer's account. Rule 10.2 provides direction on the relevant factors to apply, which has been confirmed by the Courts ... That rule lists a number of factors including 'any other factor that is appropriate to consider in the circumstances.' Case law and the Law Society of Alberta, Code of Conduct are sources that help identify other potentially relevant factors" - The Review Officer specifically referred to some of the factors he was considering - The Review Officer did not exclude the application of any factor, but in certain cases found that a factor had no great influence on his award - The court found that the Review Officer considered and applied relevant factors in assessing the quantum to allow on the accounts, and properly directed himself on the law he should apply in reviewing the accounts, disclosing no error of principle - See paragraphs 78 to 82.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - Clients appealed from a Review Officer's assessment of a lawyer's accounts - The clients argued that "specific invoice issues" should invite review - The Alberta Court of Queen's Bench stated that those matters should properly have been raised in front of the Review Officer, rather than before the court - Those issues involved, for one client, the lawyer's time charged for discussions with the client's previous lawyer along with the charges for that lawyer's time, some $18,817 in time said to be for a letter regarding parenting, and time spent making notes and annotations of client materials - The other client raised the "specific invoice issues" of billing for 23 hours in one day and billing $27,562 for research into judicial bias and appeals - The significant reduction by the Review Officer was indicative that he took concerns about the utility to the client of the work done "very seriously" - In any case, the Review Officer granted significant reductions on the accounts - Neither client had been able to show an error of principle or fact with regard to any "specific invoice issues" - See paragraphs 83 to 87.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - A Review Officer granted significant reductions on a lawyer's accounts in two high conflict family law cases: $48,754.87 in one case, and $100,000 in the other - Each client appealed, arguing that the reductions were inordinately low with the result that the accounts allowed were inordinately high - The Alberta Court of Queen's Bench held that the scale of the awards did not betray an error of principle - The lawyer, called to the bar in 2005, had significant experience in a policing background and not directly related to family law - On the other hand, the files were complex, high-conflict and demanding - Both files had the involvement of the RCMP - The clients had urgent requirements - The results achieved were mixed - The clients agreed to pay $500 per hour - The lawyer cautioned the clients about the potentially significant fees - Sizeable work was done on the accounts - Nevertheless, the clients brought valid concerns about the value of the lawyer's work and her management of the files - Application of the relevant factors justified a significant reduction in the lawyer's accounts - Given the competing factors, the significant reductions in the accounts and the resulting awards were reasonable - See paragraphs 88 to 94.

Barristers and Solicitors - Topic 3303

Compensation - Measure of compensation - Relevant considerations - [See sixth Barristers and Solicitors - Topic 3257 ].

Barristers and Solicitors - Topic 3405

Compensation - Particular matters - Family matters - [See eighth Barristers and Solicitors - Topic 3257 ].

Cases Noticed:

Rath & Co. v. Sweetgrass First Nation (2013), 559 A.R. 12; 2013 ABQB 165, refd to. [para. 38].

Fraser Milner Casgrain LLP v. Kristof Financial Inc. et al. (2012), 541 A.R. 245; 215 A.C.W.S.(3d) 1010; 2012 ABQB 359, refd to. [para. 38].

McLennan Ross v. Keen Industries Ltd. (No. 2) (1988), 86 A.R. 311 (C.A.), refd to. [para. 38].

Panther Petroleum Ltd. v. Code Hunter, [2002] A.R. Uned. 232; 112 A.C.W.S.(3d) 225; 2002 ABQB 158, refd to. [para. 38].

MacKimmie Matthews v. Hector (1998), 219 A.R. 163; 179 W.A.C. 163 (C.A.), refd to. [para. 38].

Anderson v. Alberta Securities Commission (2008), 437 A.R. 55; 433 W.A.C. 55; 2008 ABCA 184, refd to. [para. 38].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 42].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 42].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 42].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 43].

Twinn v. Sawridge Band (2012), 531 A.R. 158; 2012 ABQB 44, refd to. [para. 44].

Boshra v. Canada (Attorney General) (2011), 398 F.T.R. 60; 2011 FC 1128, refd to. [para. 48].

Carr & Co. v. Markdale Ltd. (1996), 197 A.R. 6 (Q.B.), refd to. [para. 51].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 53].

Brown v. Snyder & Associates (2004), 364 A.R. 266; 2004 ABQB 899, refd to. [para. 54].

Boles (Pamela S.) Law Corp. v. Mathisen, [1998] B.C.T.C. Uned. 574; 19 C.P.C.(4th) 78; 79 A.C.W.S.(3d) 168 (S.C.), refd to. [para. 55].

McLennan Ross v. Keen Industries Ltd. (1987), 83 A.R. 322 (C.A.), refd to. [para. 56].

Lameman et al. v. Alberta et al. (2013), 553 A.R. 44; 583 W.A.C. 44; 2013 ABCA 148, refd to. [para. 57].

Cookish v. Lee (Paul) Associates Professional Corp. (2013), 305 O.A.C. 359; 2013 ONCA 278, refd to. [para. 64].

McDonald Crawford v. Morrow (2004), 348 A.R. 118; 321 W.A.C. 118; 2004 ABCA 150, refd to. [para. 78].

MacDonald & Freund v. Chernetski (1987), 81 A.R. 142 (Q.B.), refd to. [para. 79].

509703 Alberta Ltd. v. Witten Binder, 2000 ABQB 729, refd to. [para. 79].

Morrison v. Pantony (Rod) Professional Corp. (2008), 429 A.R. 259; 421 W.A.C. 259; 2008 ABCA 145, refd to. [para. 79].

Mide-Wilson v. Hungerford Tomyn Lawrenson and Nichols, [2013] B.C.T.C. Uned. 374; 2013 BCSC 374, refd to. [para. 95].

Statutes Noticed:

Rules of Court (Alta.), 2010, rule 10.10 [para. 97].

Counsel:

Christian S. Ouellette, for the appellants;

Christine E. Silverberg, respondent, on her own behalf.

These appeals were heard on April 22, 2013, before Tilleman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision, dated June 3, 2013.