Twinn v. Sawridge Band, 2012 ABQB 44

Court of Queen ’ s Bench of Alberta Citation: Twinn v. Sawridge Band, 2012 ABQB 44 Date: 20120118 Docket: 1103 09493 Registry: Edmonton Between: Catherine Twinn, Barrister and Solicitor Respondent - and - Sawridge Band Appellant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.A. Browne _______________________________________________________ Appeal from the Order by R.P.

Wachowich, Master in Chambers Dated the 6 th day of July, 2011 Overview [ 1 ] This is an appeal from a Master’s decision regarding the procedure involved in the “taxation” of a lawyer’s account. It is not a consideration of the merits or the substance of the lawyer’s account.

[ 2 ] Catherine Twinn, a barrister and solicitor in the Province of Alberta, submitted several accounts for legal fees to the Sawridge Band (the Band). The legal fees were incurred in the course of Twinn acting as instructing solicitor in a lawsuit filed by the Band in the Federal Court involving lengthy Charter and constitutional challenges to Bill C-31. Twinn relies on a retainer agreement that dates back to 1984. The sum of all accounts rendered by Twinn to the Band exceeded $5 million dollars. [ 3 ] Early accounts were paid on an orderly basis.

However, the Band stopped making payments to Twinn in January 2011. There are fourteen accounts (the contested accounts) outstanding, totalling $213,959.29. Twinn wishes to rely on the expedited procedure for collection of legal accounts set out in Rule 10.10. The Band objects to that procedure and argues that Twinn must file a Statement of Claim to collect the balance owing. The Band then proposes to argue, in addition to scope of retainer and quantum of the accounts, that the lawsuit was ill conceived and negligent and a drain on the Band’s resources.

They further wish to set off rent issues against any money that might be owing on account. Twinn argues that the latter issues cannot be argued as part of the “taxation”.

Procedural History [ 4 ] On June 10, 2011, Twinn served the Band with: 1. an appointment for review of lawyer’s charges by Assessment Officer scheduled for July 13-14, 2011; and 2. an application to permit review of the accounts to be heard before a Master. [ 5 ] With regard to the latter application, Twinn sought an order directing that the contested accounts be reviewed notwithstanding Rule 10.10(2), which sets a six month time limit for reviewing lawyers’ accounts. In support of this application, Twinn filed an affidavit sworn on June 8, 2011.

The application referred to the fourteen contested accounts rendered from October 31, 2005 to October 19, 2009 totalling $213,959.29. The last payment made by the Band was in January 2011. [ 6 ] Twinn’s application for an order permitting review beyond the Rule 10.10(2) time limit was heard in Master’s Chambers on July 6, 2011. After hearing the parties’ submissions, Master Wacowich granted the following Order: 1. The accounts described in

Schedule “A” hereto may be reviewed by an Assessment Officer notwithstanding the provisions of Rule 10.10. 2. For greater certainty, this Order shall not prejudice any defence that the Respondent may have with respect to the Respondent’s liability to pay any amounts determined reasonable and proper by the Assessment Officer, including any defences arising by virtue of the Limitations Act (Alberta). [ 7 ] In the transcript of the proceedings, Master Wacowich’s reasons for granting the Order are set out at 10/35-40: ... I believe on the authorities produced to me that I do have authority to grant this order.

I am not a hundred percent satisfied that this is the best route, but it protects any limitation periods. It gets the matter moving forward. It gets it before the assessment officer who is dealing with these matters and knows what he wants to do here. I am granting the order. [ 8 ] On July 11, 2011, the Band questioned Twinn on her affidavit, and Twinn gave several undertakings. The responses to the undertakings were sent to the Band’s counsel on the morning of July 13, 2011.

[ 9 ] On July 13, 2011, the parties attended a review hearing before Review Officer J.A.B. Christensen (as served on June 10, 2011). Upon commencing the review, the Review Officer commented on the application for an extension under Rule 10.10 before the Master. This review was adjourned to October 3, 2011, and then adjourned sine die while the Band appealed the Master’s Order. Issues [ 10 ] The parties raise the following issues on appeal: 1. Should new evidence be heard in this appeal? 2. Does Rule 10.10(2) apply to lawyer-initiated reviews of lawyers’ charges? 3.

If Rule 10.10(2) does apply to lawyer-initiated reviews, did the Master err in granting his order to permit review of the accounts? 4. If the review is to proceed, should the Review Officer consider accounts other than the contested accounts and issues of set-off? 1. Should new evidence be heard in this appeal? [ 11 ] Twinn swore an affidavit on June 8, 2011 which was subsequently filed in support of the application before the Master. At the time of the application, the Band had not questioned Twinn on her affidavit.

The Band argues the transcript of the questioning and the answers to the undertakings are “new evidence” that I should consider in this appeal. Twinn opposes admission of the “new evidence” on grounds that it is not relevant to the Master’s decision or this appeal. [ 12 ] On July 13, 2011, Rule 6.14(3) was amended: Alberta Rules of Court Amendment Regulation , Alta Reg 143/2011.

The new Rule 6.14(3) set outs: An appeal from a master’s judgment or order is an appeal on the record of proceedings before the master and may also be based on additional evidence that is, in the opinion of the judge hearing the appeal, relevant and material. [ Emphasis added ] [ 13 ] The July 13, 2011 amendment to Rule 6.14(3) changed the test for admission of new evidence on appeal from a Master’s decision.

Under the new Rule 6.14(3), the party seeking admission of additional evidence is no longer required to establish due diligence, and must only show that the evidence is “relevant and material” as opposed to “prominent and noteworthy.” [ 14 ] The additional evidence in this case is the transcript of the questioning of Twinn on her June 8, 2010 affidavit, as well as the answers to the undertakings from that questioning. This evidence is relevant to the issues of quantum and the Band’s liability for the contested accounts. [ 15 ] The issue in this appeal is the

interpretation of Rule 10.10(2), as it applies to lawyer-initiated reviews of lawyers’ accounts. The transcript of the questioning and the undertakings are neither relevant nor material to the proper

interpretation of Rule 10.10(2). I have not considered this evidence in this appeal. 2. Does Rule 10.10(2) apply to lawyer-initiated reviews of lawyers ’ charges? Legislation

[ 16 ] Rule 10.9 sets out the authority of a review officer to review lawyers’ charges: 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. [ 17 ] Rule 10.10 of the Alberta Rules of Court states: Time limitation on reviewing retainer agreements and accounts 10.10(1) A retainer agreement may not be reviewed if 6 months has passed after the date on which the retainer agreement terminated.

(2) A lawyer’s charges may not be reviewed if 6 months has passed after the date on which the account was sent to the client. [ 18 ] The term “Review Officer” is defined in Rule 10.1 and the authority of Review Officer is set out in the Right of Review Rules, Rules 10.9-10.25. The term “Assessment Officer” refers to the “Review Officer”. Overview [ 19 ] The application before the Master proceeded on the basis that the six month time limit for reviewing lawyers’ charges under Rule 10.10(2) applies when both clients and lawyers request a review.

As set out in the transcript of the proceedings before the Master, Twinn’s counsel submitted (p 1; ll 32-35): [Rule 10.10(2)] provides that the lawyers’ charges may not be reviewed if six months has passed after the date on which the account was sent to the client, and it applies to both clients and lawyers who wish to have accounts assessed. [ 20 ] The issue of the proper

interpretation of Rule 10.10(2) arose at the review hearing on July 13, 2011, when the Review Officer set out his position that Rule 10.10(2) only applies to reviews of lawyers’ charges at the request of a client, and not at the request of a lawyer. After the review hearing was adjourned, Twinn’s counsel requested a copy of the memo concerning the old Rule 647. On August 16, 2011 the Review Officer responded by writing a letter to both parties’ counsel, including excerpts from his earlier memos and from Master Funduk’s memo.

The August 16, 2011 letter is reproduced in full as Appendix A. [ 21 ] We therefore must discuss the effect of Rule 10.10(2) that is worded clearly to proscribe a six month limitation period for review, and the memos from Master Funduk and the Review Officer providing a different

interpretation of that Rule. Master Funduk ’s

Interpretation of Rule 647 [ 22 ] On April 18, 1983, Master Funduk issued a memo to the Bar taking the position that the time limit for “taxation” of lawyers’ accounts under the former Rule 647 should apply only to clients, and not to lawyers. An excerpt of this memo is reproduced in the August 16, 2011 letter from the Review Officer, Mr. James Christensen, attached as Appendix A. [ 23 ] As of 1983, Rule 647 set out the following time restrictions:

647 Unless the court otherwise orders no bill of costs is subject to taxation (

a) after judgment has been obtained in respect thereof, or, (

b) if it is unpaid after one year from the date of delivery thereof, or (

c) if it was fully paid before the completion of the services for which it was rendered, after six months from the date of completionor the delivery of the bill, whichever is later, or, (

d) if it was fully paid following the completion of the services, after six months from delivery. [24] In the1983 memo, Master Funduk notes that there is no reason for a lawyer to “tax” an account after judgment has beenobtained or after the account has been paid. Therefore, Rules 647(a), (c), and (

d) must apply only to clients. Master Funduk sets out thatRule 647(

b) must be considered in the context of the other three sub-clauses, and therefore, must also apply only to clients seekingtaxation of accounts. [25] Master Funduk also notes that a time limit on lawyer-initiated taxation would serve no purpose. Given that a lawyer is able tocollect on accounts until expiration of the limitation period, Master Funduk questions “what logical basis can there be for saying that ifthe bill of costs is unpaid the solicitor must tax it within one year?” (See Appendix A, p 2.) Master Funduk concludes that Rule 647must only apply to clients seeking taxation, and not to lawyers. Review Officer’s

Interpretation of Rule 10.10 [26] In 1994, then Taxing Officer Christensen prepared a memorandum setting out his position as to why the time limit fortaxation (now review) of lawyers’ accounts should not apply to lawyers. In 1997, Mr. Christensen wrote a letter to counsel expanding onthe 1994 memorandum. On August 16, 2011, Mr. Christensen wrote a letter to Twinn’s counsel (copied to the Band’s counsel), againsetting out this position and its application to what is now Rule 10.10. [27] The August 16, 2011 letter includes excerpts from Mr.

Christensen’s earlier letters and memorandums, and also excerpts fromMaster Funduk’s 1983 memo. [28] Mr. Christensen relies on the decision of Fruman J in P & S, Barristers & Solicitors v Legal Aid Society, (AB KB), [1994] 164 AR 208 (QB), which holds that clients and lawyers review accounts for very different reasons. This case stands forthe following: 1. “The provisions in the Rules of Court relating to the taxation of accounts by solicitors are procedural (para 18)and not substantivein nature. 2.

The case law confirms the Court’s inherent jurisdiction to review solicitors’ accounts at the request of the client for public policyreasons. 3. However, those public policy reasons do not apply to lawyers wishing to tax their accounts, hence “the Courts inherentjurisdiction to tax [does not extend] to counsel’s inherent right to use an expedited collection procedure;” (para 21). 4. The public policy in question is summed up as follows (paras. 20-21): The reason for the taxation of legal fees by a client are fundamentally different than the reasons for taxation by a lawyer. The client,

after all, is liable to pay the fees. He or she may be concerned that they are excessive or want independent confirmation that they are reasonable. The client may be legally unsophisticated. He or she might not be able to assess the value of the services received and might contractually agree not to tax an account without fully understanding the implications... Solicitors, on the other hand, elect to have their accounts to their clients taxed as a step in an expedited collection procedure. That is not the only avenue for collection open to them.

I do not think that the same public policy reasons apply. ... [ 29 ] This supports a distinction between the procedure for client-initiated reviews and lawyer-initiated reviews. [ 30 ] Mr. Christensen also sets out a detailed history of the development of rules relating to time restrictions on taxation/review. Mr. Christensen concludes that: ... the historical development of the Rules of Court as they relate to the precursors to former Rule 647 and current Rule 10.10 make it clear that the time limitation for review of bills was never intended to apply to lawyers taxing/reviewing their own accounts.

Parties ’ Positions [ 31 ] As a result of receipt of the memos from Master Funduk and the Review Officer, Twinn now takes the position that Rule 10.10(2) does not apply to lawyer-initiated review of statements of account. Twinn takes the position that the application before the Master to permit a review beyond 6 months set out in Rule 10.10(2) was unnecessary but taken as a precautionary step.

Twinn argues that the proceedings should take place before the Review Officer and that questions outside the jurisdiction of the Review Officer can be made to the Court through the established reference procedure. [ 32 ] The Band argues that Twinn is out of time in bringing an application for review of the contested accounts, and that the application to collect on the outstanding accounts should properly be brought by way of a statement of claim in the Court of Queen’s Bench.

This would open up consideration of all the issues the Band wishes to argue including scope of retainer, quality of work and advice and old and new accounts. The Band argues that the six month limitation period should be enforced as set out in Rule 10.10. Standard of Review [ 33 ] The standard of review on an appeal from a decision of the Master on a question of law is correctness: Janvier v 834474 Alberta Ltd , 2010 ABQB 800 at para 18 . The proper

interpretation of Rule 10.10(2) is a question of law. The appropriate standard of review with respect to the issue of whether Rule 10.10(2) applies to lawyer-initiated review is correctness. Analysis -

Interpretation of Rule 10.10(2) [ 34 ] The wording of Rule 10.10(2) does not distinguish between reviews of fee accounts initiated by clients and reviews initiated by lawyers.

Considering the wording of Rule 10.10(2), the Rule seems to require a lawyer to obtain the Court’s permission to review accounts if more than six months have passed from the date the account was sent to the client. [ 35 ] Master Funduk’s 1983 memo and the memorandums produced by the Review Officer state that the time limits on taxing or reviewing lawyers accounts do not apply to lawyers seeking to tax or review, although the wording of these provisions do not expressly exclude them. I agree with the reasoning in both memos, which I adopt and expand on below.

[36] When interpreting Rule 10.10(2), this Court must consider the purpose of the time limit. It is well established that the reasonsa lawyer initiates a review are fundamentally different from the reasons that a client initiates a review. As set out in P & S, Barristers &Solicitors v Legal Aid Society, (AB KB), [1994] 164 AR 208 (QB) at paras 20-21, clients initiate reviews to obtainindependent confirmation that the fees are reasonable. The client may be unsophisticated or unable to assess the value of the servicesreceived.

Client-initiated reviews serve an important public policy function. [37] On the other hand, lawyers initiate reviews as one step in an expedited collection procedure. To a lawyer, reviews are a faster,less expensive alternative to filing an action against the client for collection of a contractual debt. The same public policy reasons do notapply to lawyer-initiated reviews. [38] The six month time limit for client-initiated reviews makes sense for many reasons. Clients will almost always be aware ofany concerns they may have about lawyers’ fees within six months of receiving the final account.

Client-initiated reviews put lawyers onnotice that a client has concerns. The time limit encourages clients to voice concerns close to the date they arise. This makes it easier forall parties (including the Review Officer) to resolve disputes. This also allows lawyers to anticipate uncollectible receivables within areasonable period of time. [39] The same reasoning does not apply to lawyer-initiated reviews. Clients are put on notice that the lawyer wants to be paidwhen they receive the account.

Placing a time limit on lawyer-initiated reviews would encourage lawyers to start preparing to enforceaccounts soon after the account is rendered. This may place an undue hardship on smaller law firms that have less time and resources todevote to tracking receivables. This would also undermine lawyers’ ability to be flexible with respect to payment and discourage theparties from working out mutually acceptable terms of payment. A six month time limit on lawyer-initiated review would encouragelawyers to file actions against former and current clients.

Taking away the option of review as an expedited collection procedure forlawyers after six months would frustrate the interests of both lawyers and clients. [40] Having regard to the Rule, the

interpretation memos noted above, and the application of common sense, I find that Rule10.10(2) applies only to reviews of lawyers’ charges initiated by a client, and does not apply to lawyer-initiated reviews. Therefore, thesix month limitation period does not apply to restrict a lawyer-initiated review. Therefore, it was unnecessary for Twinn to apply for anorder permitting the review to proceed before the Review Officer. 3.

If Rule 10.10(2) does apply to lawyer-initiated reviews, did the Master err in granting the Order to permit review of theaccounts? [41] Rule 10.10(2) does not apply to lawyer-initiated reviews. It is not necessary to consider whether the Master erred in grantingthe Order permitting the review. Nonetheless, the Band did put forward three grounds of appeal which merit some discussion insofar asthis may clarify the

interpretation of Rule 10.10(2) and the proper procedure to follow in enforcing accounts where both liability andquantum are disputed. Did the Master err in granting the Order before questioning on the affidavit? [42] The Band argues that the Master erred in granting the Order without first allowing the Band to question Twinn on heraffidavit. Twinn argues that the Band did not actually request an adjournment, and in any case, the evidence arising out of thequestioning is irrelevant. [43] As set out above, the evidence arising out of the questioning was neither relevant nor material to the proper

interpretation ofRule 10.10(2) and the issues on this appeal. If the Master erred in granting the Order before questioning took place (which need not bedecided here), this was a harmless error.

Did the Master err in granting the Order before deciding limitations issues? [ 44 ] The Band argues that a lawyer cannot initiate a review of an account if the limitation period for collecting on the account has expired. Therefore, the Band argues the Master erred in granting the Order without first deciding the limitations issues raised. I have decided that the six month time limit under Rule 10.10(2) does not apply to lawyer initiated reviews; therefore, it is unnecessary to decide this issue.

However, this argument raises the important question of whether the limitation period for suing on accounts creates a time limit that prevents lawyers from initiating a review after the limitation period has expired. Some discussion is warranted. [ 45 ] The Limitations Act , RSA 2000, c L-12, s 3 sets out that an action for a “remedial order” must be commenced within either: 1) two years after the claimant knew or ought to have known of the claim; or 2) ten years after the claim arose, whichever period expires first.

This limitation period applies to an action for contractual debt. [ 46 ] The Limitations Act does not restrict the time that a lawyer can commence an action via Statement of Claim (or Civil Claim in Provincial Court). A lawyer is entitled to file a Statement of Claim at any time. If the client establishes that the limitation period expired, the defendant is entitled to plead the Limitations Act as a defence, and is entitled to immunity from liability in respect of the claim: Limitations Act , s 3. In other words, when the defendant establishes that the limitation period has expired, the action is dismissed.

Cost awards are available to indemnify clients subjected to frivolous actions; however, while the issue of expiry of a limitation period is merely contested and not decided, the action will be allowed to continue. [ 47 ] The same principle applies to review hearings. Like filing an action, a lawyer is entitled to initiate a review at any time. If the client establishes that the limitation period with respect to a particular account has expired, review of the account will be unnecessary. The client may be indemnified for unnecessary reviews with costs.

The Limitations Act does not restrict the time that a lawyer can initiate a review. Lawyers are entitled to initiate and proceed with a review even where liability is contested: Peterson, Ross v Kirwood , [1984] 52 AR 284 at para 19 . This applies to the situation where a client alleges that the limitation period has expired for a contested account. [ 48 ] Twinn is entitled to initiate a review, notwithstanding that the Band contests liability with respect to the accounts.

It remains open to the Band to contest liability on the grounds that the limitation period has expired, but there is no authority for the proposition that this issue must be determined before the review of quantum can proceed. The Master did not err in permitting the review to proceed without first deciding whether Twinn’s claims are already barred by the Limitations Act .

The appropriateness of review: did the Master err in granting the Order to permit the review to proceed in the face of numerous issues that are not in the jurisdiction of a Review Officer to decide? [ 49 ] In both applications before the Master and before the Review Officer, there was significant disagreement between the parties about the proper forum and the timing to determine the issues of quantum and liability. The parties continue to disagree about whether the matter should proceed by way of review, or proceed in the Court of Queen’s Bench by way of statement of claim or trial of an issue.

If the matter proceeds by way of review, quantum would be decided first and liability decided by reference to a Justice of the Court of Queen’s Bench.

If the matter proceeds by way of a statement of claim or trial of an issue, all issues could be decided in the Court of Queen’s Bench, or the Queen’s Bench Justice may decide liability then refer the issue of quantum to the Review Officer. [ 50 ] Twinn argues that the matter should proceed to review first, and liability issues should be decided by either having the Review Officer direct a reference to Court, or when Twinn applies to enter the Review Certificate as a judgment.

The Band argues that liability should be decided before a review goes forward, to avoid any unnecessary cost of reviewing accounts that are ultimately uncollectible. The Band argues the Master erred in permitting the review to proceed because the Review Officer does not have jurisdiction to decide liability, and the more appropriate procedure is to direct a trial of the liability issues. [ 51 ] The Master exercised his discretion in granting the Order and permitting the review to proceed first, despite outstanding issues of liability that are outside the Review Officer’s jurisdiction.

The application itself was unnecessary, as neither Rule 10.10(2) nor the Limitations Act require Twinn to obtain the Court’s permission to proceed to review. Nonetheless, this argument raises the important question of what is the proper procedure to follow when a lawyer initiates a review of quantum and the client disputes liability with

respect to the account. [ 52 ] Where a lawyer initiates a review and the client disputes liability, allowing the lawyer to proceed to review is the appropriate procedure to follow. This places the issue of timing before the Review Officer. The Review Officer can decide whether to proceed with the review, or adjourn the review and refer the liability issues to Court for determination. This approach defers to the expertise of the Review Officer and allows for flexibility and case by case solutions.

If there is a risk that the client will incur significant, unnecessary costs by proceeding with a review of accounts that may ultimately uncollectible, it is likely that the Review Officer will refer the liability issues to Court for determination before proceeding with the review. [ 53 ] Furthermore, proceeding first to review gives the Review Officer an opportunity to identify and narrow the liability issues (or direct that the parties do so) before the matter proceeds to Court.

This is the most timely and cost-effective way of resolving disputes, which is in accordance with the foundational Rules 1.2(1) and 1.2(2). [ 54 ] Finally, proceeding to review first does not prejudice any defence the client may wish to advance. The client has the opportunity to contest liability by requesting a reference to Court, and again when the lawyer applies to have the Review Certificate entered as a judgment. The client also has the option of appealing the Review Officer’s decision. [ 55 ] The Master exercised his discretion and permitted the review to proceed.

I agree that this is the appropriate procedure to follow in this case. The Master was correct in granting the Order despite the possibility of issues outside the jurisdiction of the Review Officer. [ 56 ] In future cases, an application to the Master to permit review will be unnecessary; the parties will simply proceed to review. If there are outstanding liability issues outside the jurisdiction of the Review Officer, these issues can be referenced to Court for determination. The Review Officer is in the best position to resolve issues of timing.

It is appropriate to start with the Review Officer when a lawyer initiates review, even where the client contests liability. If the review is to proceed, should the Review Officer consider accounts other than the contested accounts and consider issues of set-off? [ 57 ] If the review is to proceed, the Band requests an order directing the Review Officer to consider all accounts rendered by Twinn to the Band. The Band argues the contested accounts must be considered in the context of the aggregate fees charged and the outcome of the multi-year litigation.

The Band also seeks an order directing the Review Officer to consider issues of set-off relating to rental arrears allegedly owed by Twinn to the Band. [ 58 ] Twinn argues that ordering the Review Officer to undertake a review of all accounts would be tantamount to an abuse of process. Twinn argues the Band, as a client, is subject to Rule 10.10(2) and if they want to initiate a review of certain accounts past the six month deadline they should be required to bring an application under that Rule.

Twinn argues the issue of set-off is without merit, and in any case, outside the Review Officer’s jurisdiction. [ 59 ] Under Rule 10.17(f), the Review Officer has authority to “require details of a retainer agreement, or of the services provided, money collected and expended, disbursements or other charges claimed or any other matter any other matter necessary to understand the agreement or charges and decide whether the agreement or charges, or both, are reasonable.” The Review Officer may consider the other accounts generally, in so far as they are relevant to the reasonableness of the fourteen contested accounts which is within the Review Officer’s jurisdiction. [ 60 ] This is not an order directing the Review Officer review any accounts other than the fourteen contested accounts.

In no way does this create an obligation on the Review Officer to review any further accounts. I can certainly understand the Review Officer’s reluctance to review accounts spanning three decades unless absolutely necessary. The Review Officer is entitled to decline to consider any accounts other than the fourteen contested accounts if he concludes that it would be unwise or unnecessary to do so.

[ 61 ] I decline to grant an Order directing the Review Officer to consider set-off relating to rental arrears. It is open to the Review Officer to consider this issue if he considers it within his jurisdiction.

Summary [ 62 ] Rule 10.10(2) does not apply to lawyer-initiated reviews. Twinn’s application to permit review was perhaps wise, but not necessary. In any event, the Master did not err in granting the Order to permit review. Twinn is entitled to proceed with review of the contested accounts. [ 63 ] The Review Officer may control his own procedure in identifying issues that are within his jurisdiction and issues that he wishes to refer to Court of Queen’s Bench. [ 64 ] There may be issues that are outside the Review Officer’s jurisdiction.

Ultimately, it is the decision of the Applicant, Twinn, to determine the original process. The Review Officer has expertise in this area. Again, the Review Officer can control his own process and his own jurisdiction. If the parties disagree with the Review Officer’s decisions, they have options. The parties may appeal the Review Officer’s decision, request a reference to Court, or raise an issue when Twinn applies to have a Review Certificate entered as a judgment. [ 65 ] Although perhaps unnecessary, the decision of the Master is correct and is upheld on this appeal. The appeal is dismissed.

Costs [ 66 ] Both parties seek costs for the application before the Master and for this appeal. Under Rule 10.33(2)(d), in deciding whether to impose, deny or vary an amount in a costs award, the Court may consider whether any application, proceeding or step in an action was unnecessary. [ 67 ] Twinn explicitly takes the position on appeal that “this application was made out of an abundance of caution having regard to the fact that new Rules of Court had been promulgated” (Twinn’s Brief, para 2).

This position suggests an awareness that the application before the Master was unnecessary, and that Twinn’s application was for her own clarification and peace of mind. [ 68 ] It is significant that the letter of August 16, 2011 from Review Officer Christensen was a significant consideration on this appeal. Neither party was aware of that

interpretation before receiving the memo. Further, although Twinn was the relatively successful party, and although the application was reasonable given the infancy of the new Rules, I accept Twinn’s position that the application was unnecessary and made only out an abundance of caution. Each party will bear their own costs for the application before the Master and for this appeal. Heard on the 15 th day of November, 2011. Dated at the City of Edmonton, Alberta this 18 th day of January, 2012.

B.A. Browne J.C.Q.B.A. Appearances: Gordon R. McKenzie, Q.C. Patty P. Ko for the Appellant Brian P. Kaliel, Q.C. for the Respondent. Appendix “A ”