Samson Cree Nation et al. v. O'Reilly & Associés, (2014) 580 A.R. 181

• Judge: Côté, O'Brien and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 27, 2014
• Citations: (2014), 580 A.R. 181;2014 ABCA 268

Samson Cree Nation v. O'Reilly & Associés (2014), 580 A.R. 181; 620 W.A.C. 181 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.095

The Samson Cree Nation and Chief Marvin Yellowbird, on behalf of himself and all other members of the Samson Cree Nation (appellants/applicants) v. O'Reilly & Associés (respondent/respondent)

(1303-0177-AC)

The Samson Cree Nation and Chief Marvin Yellowbird, on behalf of himself and all other members of the Samson Cree Nation (appellants/applicants) and Parlee McLaws LLP (respondent/respondent)

(1303-0178-AC; 2014 ABCA 268)

Indexed As: Samson Cree Nation et al. v. O'Reilly & Associés

Alberta Court of Appeal

Côté, O'Brien and Veldhuis, JJ.A.

August 26, 2014.

Summary:

In 1989, the Samson Cree Nation (the Nation) commenced multi-phase breach of trust litigation against the Crown in Federal Court (T-2022-89). In December 2009, after two phases of the litigation were completed, the Nation served appointments for taxation on the lawyers, seeking taxation respecting the whole term of their retainer. Those accounts had been rendered periodically (monthly). The most recent were October 31, 2009 (Parlee), and June 19, 2008 (O'Reilly). Parlee and O'Reilly challenged the validity of the appointments, raising limitation period issues. The Nation filed two applications (i.e., the O'Reilly application and the Parlee application), to have the validity of the appointments determined. The Nation claimed that it had sought the appointments within the two year limitation period (Limitations Act, s. 3(1)), and the appointments entitled it to tax all accounts back to the beginning of the retainers. Parlee and O'Reilly argued that each of their accounts was a final account and the Limitations Act applied to each. Therefore, they argued, no accounts before December 2007 were taxable. Issues also arose as to the regulatory limitations on the time for seeking taxation without leave and when leave was required under the Rules of Court (i.e., under pre-2010 (old) rule 647 and 2010 (new) rule 10.10). There was also an issue as to which rules applied.

The Alberta Court of Queen's Bench, in a decision reported 564 A.R. 169, dismissed the Nation's applications, except that the Nation had the right to continue the taxation of the Parlee accounts, dated from January 9 to October 31, 2009. Costs were awarded to the law firms, payable forthwith. In reaching its conclusions, the court determined the following:

"1. The retainers between the Nation and the law firms were oral, except as confirmed in writing as it related to Parlee during the term of the retainer;

"2. The retainers were not whole contract or entire contract retainers, and the periodic (usually monthly) accounts rendered were neither interim nor provisional accounts, and therefore contained no right to tax back to the beginning of the retainer based on the last account issued;

"3. The retainers were continuous, and the rights of taxation were not impacted by any natural breaks in the underlying action;

"4. These continuous retainers expressly provided that the issued periodic accounts were each final as issued;

"5. The rights to taxation of those final accounts were determined based on the following:

a. The Limitations Act, RSA 2000, c L-13 provided a 2 year limitation, and therefore no accounts before December 3 and December 10, 2007, respectively for Parlee and O'Reilly, were subject to taxation;

b. Rule 647 or the pre-2010 rules (i.e., Old Rule), not rule 10.10 of the new Rules (i.e., 2010 Rules), was applicable to determine the regulatory time limitation for taxation based on the date the appointments were filed and served;

c. Based on Old Rule 647, the common law criteria applicable to obtaining an extension, and the evidence, the court found that none of O'Reilly's accounts fell within the limitation date and could not be taxed without an extension of the time limitation under Old Rule 647. Based on the applicable law and evidence, however, the Nation was not entitled to such an extension, thus none of O'Reilly's accounts were eligible for taxation.

d. Under Old Rule 647 and the common law provisions, Parlee's accounts from January 9 to October 31, 2009, were entitled to be taxed without an extension of the time limitation, but the other accounts required extension. Based on the law and facts, however, the Nation was not entitled to tax any other accounts.

e. The law firms were entitled to costs as may be agreed by Counsel, or, failing agreement, as may be assessed under the new Rules."

The Nation appealed respecting both the O'Reilly and the Parlee applications, raising a number of arguments.

The Alberta Court of Appeal dismissed the appeals.

Barristers and Solicitors - Topic 3041

Compensation - Agreements - General - The Alberta Court of Appeal discussed whether a solicitor could contract with a client on the basis for charging fees - The court, per Côté, J.A., stated that "I have seen no authority which suggests that such a contract cannot call for fees based upon the number of hours which the solicitor devotes to the file, at a certain hourly price. And a number of authorities recognize and give effect to just such contracts ..." - See paragraphs 13 to 28.

Barristers and Solicitors - Topic 3167

Compensation - Agreements - The retainer - Nature or type of - In 1989, the Samson Cree Nation commenced multi-phase breach of trust litigation against the Crown - There was no written retainer - Fees were to be based on hours worked and accounts issued at frequent intervals - Those accounts had been rendered periodically (monthly) as recently as 2008 and 2009 - In December 2009, after two phases of the litigation, the Nation sought the taxation of its lawyers' accounts, respecting the whole term of their retainer - The Alberta Court of Appeal affirmed that this was a continuous retainer and the accounts were final - The lawyers involved provided sufficient explanations of the basis on which the accounts were to be billed - See paragraphs 114 to 162.

Barristers and Solicitors - Topic 3203

Compensation - Accounts - Types of accounts distinguished - [See Barristers and Solicitors - Topic 3167 ].

Barristers and Solicitors - Topic 3245

Compensation - Taxation or assessment of accounts - Limitation period - An applications judge held that the two year limitation period in s. 3(1) of the Limitations Act applied to taxation and review of legal accounts in that an appointment for taxation was a remedial order - The Alberta Court of Appeal agreed with that conclusion - See paragraphs 169 to 171.

Barristers and Solicitors - Topic 3245

Compensation - Taxation or assessment of accounts - Limitation period - The Alberta Court of Appeal noted that rule 647 of the Rules of Court provided that an account could not be taxed more than six months from delivery of the bill, if it was fully paid - If a bill was not paid, the time limit was one year - The court also noted that rule 647 allowed the court to extend the time limits in the rule - The court discussed when the court would extend the time limit in rule 647 - See paragraphs 180 to 201.

Barristers and Solicitors - Topic 3245

Compensation - Taxation or assessment of accounts - Limitation period - In 1989, the Samson Cree Nation commenced multi-phase breach of trust litigation against the Crown - There was no written retainer - Letters provided for payment at hourly rates - In December 2009, after two phases of the litigation, the Nation sought the taxation of its lawyers' (Parlee's and O'Reilly's) accounts, respecting the whole term of their retainer - Those accounts had been rendered periodically, predominantly monthly, the most recent being October 31, 2009 (Parlee), and June 19, 2008 (O'Reilly) - Parlee and O'Reilly raised the two year limitation period (Limitations Act, s. 3(1) and the procedural time limits on applying for taxation without leave in the Rules of Court (old rule 647) - An applications judge determined that this was a continuous retainer and the accounts were final - Therefore, only accounts rendered within the two years before filing for the appointments on December 3 and 10, 2009, namely December 3 and December 10, 2007 for Parlee and O'Reilly respectively, were subject to taxation (Limitations Act, s. 3(1)) - In addition rule 647 applied - The court reviewed the accounts and determined which fell within two years of December 3 and 10, 2009, and which were either taxable without leave or not taxable except with leave under rule 647 - As to the latter category, the judge saw no reason to grant an extension of time to apply for taxation under rule 647 - The Nation appealed - The Alberta Court of Appeal dismissed the appeal - See paragraphs 163 to 221.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 8].

McDonald Crawford v. Morrow (2004), 348 A.R. 118; 321 W.A.C. 118; 2004 ABCA 150, refd to. [para. 15, Appendix B].

Steinke et al. v. Hajduk Gibbs LLP (2014), 581 A.R. 91; 96 Alta. L.R.(5th) 155; 2014 ABQB 34, refd to. [para. 17].

Canada Life Casualty Insurance Co. v. Pahl (1997), 207 A.R. 65 (Q.B.), refd to. [para. 25].

Molstad Gilbert v. Douglas Rentals Ltd., [1983] A.J. No. 664 (Q.B. Master), refd to. [para. 27].

Davis & Co. v. Jiwan et al., [2006] B.C.T.C. 658; 2006 BCSC 658 (Registrar), refd to. [para. 37, Appendix B].

Trinier v. Shurnaik (2011), 515 A.R. 148; 532 W.A.C. 148; 2011 ABCA 314, refd to. [para. 81].

Schmidt et a. v. Wood et al. (2014), 569 A.R. 345; 606 W.A.C. 345; 2014 ABCA 80, refd to. [para. 81].

Humphries et al. v. Lufkin Industries Canada Ltd., [2011] A.R. Uned. 613; 68 Alta. L.R.(5th) 175; 2011 ABCA 366, refd to. [para. 82].

MacPherson Leslie & Tyerman LLP v. Moll (2014), 569 A.R. 69; 606 W.A.C. 69; 2014 ABCA 45, refd to. [para. 140].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 141].

CCB Mortgage Investment Corp. v. Rohata Development and Consultants Ltd. et al. (1982), 43 A.R. 137 (Q.B.), refd to. [para. 150].

Yugraneft Corp. v. Rexx Management Corp., [2010] 1 S.C.R. 649; 401 N.R. 341; 482 A.R. 1; 490 W.A.C. 1; 2010 SCC 19, refd to. [para. 167].

Sharma v. 643454 Alberta Ltd. et al. (2006), 392 A.R. 353; 2006 ABQB 119, refd to. [para. 167].

Lappoehn v. Fleming Kambeitz, [2003] A.R. Uned. 375; 37 C.P.C.(5th) 386; 2003 ABQB 497 (Master), refd to. [para. 169].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2007] 3 F.C.R. 245; 357 N.R. 1; 2006 FCA 415, refd to. [para. 175].

Hansraj v. Ao (2004), 354 A.R. 91; 329 W.A.C. 91; 2004 ABCA 223, refd to. [para. 179].

Kehewin Cree Nation v. Mulvey et al. (2013), 556 A.R. 282; 584 W.A.C. 282; 2013 ABCA 294, refd to. [para. 179].

Lewis Estates Communities Inc. et al. v. Brownlee LLP, [2013] A.R. Uned. 572; 2013 ABQB 508, affd. [2013] A.R. Uned. 823; 2013 ABQB 731, refd to. [para. 186].

BA Capital Inc. et al. v. Focused Money Solutions Inc. et al., [2012] A.R. Uned. 386; 2012 ABQB 379, refd to. [para. 186].

Twinn v. Sawridge Band (2012), 531 A.R. 158; 2012 ABQB 44, refd to. [para. 186].

Shreem Holdings Inc. v. Barr Picard, [2014] A.R. TBEd. MR.013; 2014 ABQB 112, refd to. [para. 193].

E., Re (1922), 66 D.L.R. 399 (Alta. C.A.), refd to. [para. 193].

Brosseau & Associates v. Ginther, [1994] A.J. No. 1157, refd to. [para. 219].

Tetterington v. Wiens et al. (1995), 165 A.R. 6; 89 W.A.C. 6 (C.A.), refd to. [para. 220].

1159465 Alberta Ltd. v. Adwood Manufacturing Ltd. et al., [2011] A.R. Uned. 347; [2012] 2 W.W.R. 83; 2011 ABCA 259, refd to. [para. 220].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 220].

Ladner Downs v. Crowley, [1987] 5 W.W.R. 322; 14 B.C.L.R.(2d) 357 (S.C.), refd to. [Appendix B].

Romer, Re, [1893] 2 Q.B. 286 (C.A.), refd to. [Appendix B].

Bull, Housser & Tupper v. Mr. T. International Agencies Ltd. et al. (1999), 126 B.C.A.C. 229; 206 W.A.C. 229; 69 B.C.L.R.(3d) 391; 1999 BCCA 427, refd to. [Appendix B].

Nathanson, Schachter & Thompson v. Inmet Mining Corp. (2009), 276 B.C.A.C. 62; 468 W.A.C. 62; 96 B.C.L.R.(4th) 342; 2009 BCCA 385, refd to. [Appendix B].

Ray et al. v. Henry Electric Ltd., [1982] 5 W.W.R. 60; 37 B.C.L.R. 203 (C.A.), refd to. [Appendix B].

Borden Ladner Gervais LLP v. Cohen (2005), 199 O.A.C. 9 (Div. Ct.), refd to. [Appendix B].

Glanc v. O'Donohue & O'Donohue (2008), 236 O.A.C. 124; 90 O.R.(3d) 309; 2008 ONCA 395, refd to. [Appendix B].

Statutes Noticed:

Rules of Court (Alta), rule 615 [para. 18]; rule 647 [para. 180].

Rules of Court (Alta), 2010, rule 10.5 [para. 23]; rule 10.10 [para. 181].

Authors and Works Noticed:

Cordery on Legal Services (9th Ed.) (2011 Looseleaf Update), p. E-1701, para. 3151 [para. 15].

Lysyk, Kenneth M., Dodek, Adam M., and Hoskins, Jeffrey G., Barristers and Solicitors in Practice (2009 Looseleaf Update), para. 13.49 [Appendix B].

Phipson, Sidney Lovell, The Law of Evidence (18th Ed. 2013), paras. 6-02, 6-03, 6-06 [para. 220].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 98 [para. 141]; 134, 135 [para. 143].

Rotman, Leonard Ian, Fiduciary Law (2005), pp. 324, 332, 456, fn. 191 [para. 148].

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman and Bryant: The Law of Evidence in Canada (4th Ed. 2014), paras. 3.26, 3.28, 3.34 [para. 220].

Wigmore on Evidence (Chadbourn Rev. 1981), vol. 9, paras. 2486 to 2487 [para. 220].

Counsel:

L.D. Andrychuk, Q.C., for the appellants/applicants;

J.S. Peacock, Q.C., for the respondent/respondent, in Appeal #0177-AC;

W.J. Kenny, Q.C., for the respondent/respondent, in Appeal #0178-AC.

This appeal was heard on May 27, 2014, in Edmonton, Alberta, before Côté, O'Brien and Veldhuis, JJ.A., of the Alberta Court of Appeal. The following decision was delivered by Côté, J.A., for the court, on August 26, 2014.