Schober v. Walker, 2008 BCCA 19

• Judge: Rowles, Hall and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 27, 2007
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 19;(2008), 253 B.C.A.C. 77 (CA)

Schober v. Walker (2008), 253 B.C.A.C. 77 (CA);

    425 W.A.C. 77

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JA.043

Kathleen Walker (respondent/solicitor) v. Bernhard Beat Schober (appellant/client)

(CA033510; 2008 BCCA 19)

Indexed As: Schober v. Walker

British Columbia Court of Appeal

Rowles, Hall and Levine, JJ.A.

January 18, 2008.

Summary:

The client initiated a review of his lawyer's fees under s. 70 of the Legal Profession Act (B.C.).

A Registrar of the British Columbia Supreme Court, in a decision reported [2004] B.C.T.C. 1542, reduced the lawyer's fees from $21,055 to $6,000. The Registrar found that the lawyer's conduct had been "most discreditable". The lawyer appealed, arguing that the Registrar made palpable and overriding errors of fact and that he exceeded his jurisdiction in finding the lawyer's conduct "most discreditable".

The British Columbia Supreme Court, in decisions reported [2005] B.C.T.C. 1648 and [2006] B.C.T.C. Uned A53, allowed the appeal. The client appealed.

The British Columbia Court of Appeal allowed the appeal and restored the Registrar's decision. The Registrar made no errors of fact, and did not exceed his jurisdiction in commenting on the lawyer's conduct in the context of a review of the lawyer's accounts.

Barristers and Solicitors - Topic 3243

Compensation - Taxation or assessment of accounts - Jurisdiction - In a strategy described by the client's lawyer herself as "surreptitious", the lawyer proceeded by default and obtained a desk divorce and an order for corollary relief - These were eventually set aside - Contested proceedings then took place, which granted relief resembling more or less that granted in the desk order - The lawyer billed the client $21,055 - A Registrar reduced the bill to $6,000, finding that the lawyer's conduct had been "most discreditable" - A chambers judge quashed the decision but the British Columbia Court of Appeal restored it - The Registrar did not exceed his jurisdiction (and thus encroach on the British Columbia Law Society's jurisdiction respecting professional conduct) in commenting on the lawyer's conduct - All of the Registrar's findings were made within the context of deciding whether the client had "authorized" the services and whether they were "necessary and proper" within the meaning of s. 71(2) of the Legal Profession Act (B.C.) - See paragraphs 43 to 51.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - In a strategy described by the client's lawyer herself as "surreptitious", the lawyer proceeded by default and obtained a desk divorce and an order for corollary relief - These were eventually set aside - Contested proceedings then took place, which granted relief resembling more or less that granted in the desk order - The lawyer billed the client $21,055 - A Registrar reduced the bill to $6,000, finding that the lawyer's conduct had been "most discreditable" - A chambers judge quashed the decision, ruling that the Registrar had exceeded his jurisdiction and that he had made palpable and overriding errors of fact - The British Columbia Court of Appeal restored the Registrar's decision - The chambers judge failed to apply the proper standard of review, which entailed a deferential approach to findings of fact by a taxation officer, and he engaged in new fact finding, including drawing new inferences - In doing so, the chambers judge seemingly misapprehended some of the evidence - See paragraphs 34 to 42.

Barristers and Solicitors - Topic 3302

Compensation - Measure of compensation - Conduct disentitling lawyer to fees in whole or in part - [See Barristers and Solicitors - Topic 3243 ].

Family Law - Topic 2200

Custody and access - Practice - Ex parte proceedings - [See Family Law - Topic 4192 ].

Family Law - Topic 4192

Divorce - Practice - Judgments and orders - Default judgment or order - The British Columbia Court of Appeal stated that in matters of custody and access, where the best interests of the child was the question for the court, ex parte proceedings should be reserved for cases where there was a real urgency - If ex parte proceedings were taken in matters of custody and access, the applicant had to inform the court of all material facts - See paragraphs 52 and 53.

Cases Noticed:

Hoem v. Law Society of British Columbia (1985), 63 B.C.L.R. 36 (C.A.), consd. [para. 25].

Boles (Pamela S.) Law Corp. v. Mathisen, [1998] B.C.T.C. Uned. 574; 19 C.P.C.(4th) 78 (S.C.), consd. [para. 34].

Wilson v. Law Society of British Columbia (1986), 9 B.C.L.R.(2d) 260 (C.A.), refd to. [para. 43].

Solicitor, Re (1995), 65 B.C.A.C. 196; 106 W.A.C. 196; 14 B.C.L.R.(3d) 100 (C.A.), refd to. [para. 43].

Access Law Center et al. v. Ferriman, [2006] B.C.T.C. Uned. 311; 2006 BCSC 661, consd. [para. 49].

Statutes Noticed:

Legal Profession Act, S.B.C. 1998, c. 9, sect. 71(2) [para. 17].

Counsel:

M. Clemens, Q.C., and G. Walker, for the appellant;

G. Turriff, Q.C., for the respondent.

This appeal was heard at Vancouver, B.C., on November 27, 2007, by Rowles, Hall and Levine, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered at Vancouver, B.C., on January 18, 2008, by Levine, J.A.