Sweetgrass First Nation v Rath & Company, 2013 ABQB 165

Court of Queen ’ s Bench of Alberta Citation: Sweetgrass First Nation v Rath & Company, 2013 ABQB 165 Date: 20130315 Docket: 1201 00570 Registry: Calgary Between: Rath & Company Appellant - and - Sweetgrass First Nation Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W. A. Tilleman _______________________________________________________ Appeal from the unfiled Decision by Mr. G. Wanless, Review Officer Dated the 14 th day of June, 2012 [ 1 ] This is an appeal from a review officer ’ s assessment of a lawyer ’ s accounts.

The impugned accounts involve one account with a written retainer agreement and a group of accounts where, it is urged by the lawyer, there was an express oral or implied retainer agreement.

[ 2 ] The decisive procedural question on this appeal is the authority of a review officer to interpret retainer agreements. [ 3 ] For the reader ’ s convenience, a

summary of the accounts reviewed has been included as Appendix A and the relevant rules have been attached in Appendix B. Background [ 4 ] For several years, Sweetgrass First Nation ( “ Sweetgrass ” ) retained Rath & Company ( “ Rath & Co ” ) for a variety of legal work.

By the end of 2011 or early in 2012, Sweetgrass decided to go elsewhere for legal services. [ 5 ] On January 10, 2012, Sweetgrass filed an Appointment for Review of Retainer Agreement and Lawyer ’ s Charges in relation to a number of accounts it had with Rath & Co. [ 6 ] On June 14, 2012, a review officer from the Red Deer judicial district gave his decision on the subject accounts, granting a wide range of reductions from the billed amounts. One account saw no reduction, and a few accounts saw little reduction.

In other cases, reductions were large - in the case of one account, over 60% of the amount that Rath & Co had originally billed Sweetgrass. [ 7 ] In all, the accounts reviewed totalled $263,668.75 of billed time plus $12,459.31 in disbursements, or $276,218.06 total. Globally, the accounts were reduced by $151,931.25 to $124,196.81, inclusive of disbursements. The overall reduction is 55% of the total amount billed, or 57.6% of the amount for billed time. [ 8 ] Sweetgrass retained Rath & Co on a variety of terms.

Most accounts were billed based on hourly rates while one, the treaty litigation account, had a written contingency fee agreement. In that agreement, clause 3.9 purported to deal with compensation for Rath & Co in the event Sweetgrass terminated the relationship before the conclusion of the matter. The meaning of that clause, and the jurisdiction to establish the meaning of that clause, is one matter in dispute between the parties.

The clause reads: If this Agreement is terminated, by the Client, before this matter is resolved, the Client shall pay the Firm all outstanding disbursements made on behalf of the Client, along with interest, and legal fees calculated as the greater of: a. the applicable percentage as described above, of any advance and any offer made by or on behalf of the Defendants, or b. the total time spent by the Firm multiplied by an [sic] hourly rates of the lawyers of the firm charged in the normal course of business.

Positions of the Parties Rath & Co [ 9 ] Rath & Co submits that the Review Officer made numerous reviewable errors and asks that the accounts be allowed in full or, in the alternative, that the accounts be sent back to be reviewed by another review officer, ideally one from Calgary, rather than Red Deer where the impugned review took place. [ 10 ] Among the errors it alleges, Rath & Co argues that the Review Officer embarked upon the review using the wrong legal principles.

Citing Alberta Rules of Court , Alta Reg 124/2010 r 10.2(1) [ Rules ], Rath & Co argues that a retainer agreement is an exception to the rule providing for a lawyer to be compensated a “ reasonable amount. ” Rath & Co submits that, under rule 10.9, it is the

reasonableness of the retainer that is subject to review and, pursuant to rule 10.19(2), the retainer agreement should be considered in light of the circumstances present at the time the retainer agreement was entered into.

Thus, it argues that the retainer agreement is a key factor and that, in any case, inadequate deference was given to it. [ 11 ] Rath & Co argues that the Review Officer: 1. failed to appreciate the significance of the retainer agreement, contrary to rule 10.2(1), which provides that a retainer agreement is an exception to the reasonableness of lawyer charges; 2. failed to give adequate weight to the lack of any prior complaint by Sweetgrass, which indicated knowledge and acceptance of Rath & Co ’ s hourly rates; 3. made an arbitrary decision by disallowing Rath & Co ’ s charges for travel expenses; 4. took into consideration irrelevant and improperly adduced evidence, including opposing counsel ’ s hourly rate; 5. made an unreasonable and arbitrary reduction on the accounts by making an unreasonable determination that the hourly rates charged for particular lawyers were too high and failing to promulgate an appropriate rate; 6. was unfamiliar with aboriginal law and made an unreasonable determination that a legal issue involving fiduciary duties was “ not complex ” ; 7. interpreted clause 3.9 of the contingency fee agreement contrary to rule 10.18(1)(a); and 8. made arbitrary, lump-sum, reductions to the accounts in issue. [ 12 ] Generally, Rath & Co submits that the Review Officer ’ s gross reductions on some accounts, without sufficient reason, are themselves errors.

Rath & Co argues that the improper decision results from several errors, including the characterization of one account as the mere drafting of a statement of claim and the failure to recognize that Rath & Co, having operated under the assumption it would be compensated pursuant to a contingency fee agreement, had an economic incentive to operate efficiently, by taking steps that would advance the litigation so it could be paid, while avoiding steps that did not justify the investment of the law firm ’ s time.

Sweetgrass [ 13 ] On the other hand, Sweetgrass argues that the Review Officer ’ s decision should be upheld. In particular, Sweetgrass submits that: 1. the

interpretation of the retainer agreement was not relevant to the decision of the Review Officer; 2. the Court should give deference to the Review Officer because there is some evidence on which he could arrive at his decision; and 3. the transcript shows that the Review Officer considered his proper role and jurisdiction, indicating an appreciation for the legal standards he must apply.

[ 14 ] Thus, Sweetgrass ’ submissions relate mostly to standard of review: that the decision of the Review Officer should be afforded substantial deference, and that in this case Rath & Co has not shown that it should be upset. Preliminary Comments [ 15 ] The decision under appeal is the result of parties that are very far apart. There was a lot of material to review. This was a large, challenging file placing a plethora of demands on the Review Officer.

Without doubt, the Review Officer faced a difficult task in trying to assess these accounts. [ 16 ] Rath & Co raises many complaints about the Review Officer ’ s decision, both jurisdictional and substantive. Were Rath & Co ’ s submissions accepted in full, it would seem the Review Officer had done nothing correctly. Sweetgrass, in its submissions at the review hearing, mounted a similar attack on Rath & Co ’ s work. [ 17 ] I have determined that the Review Officer in this case proceeded to interpret the retainer agreements without jurisdiction to do so. For that reason I return the accounts for a new review.

As I hope my reasons will show, the Review Officer was alert to the fact that he lacked jurisdiction to interpret the retainer agreement. While he correctly applied this rule in one instance, at other times he forged ahead, providing

interpretations that are very much material to the assessment of quantum. [ 18 ] Had the

interpretation matter not been in issue, I would be faced with the difficult task of deciding whether to uphold the Review Officer ’ s assessment. 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. Standard of Review [ 19 ] The starting point for an appeal is a determination of the appropriate standard of review. [ 20 ] A review officer may only proceed with jurisdiction.

Thus, true questions of jurisdiction are reviewable on a correctness standard: Canada (Canadian Human Rights Commission) v Canada (Attorney General) , 2011 SCC 53 at para 18 , [2011] 3 SCR 471 . Assessing jurisdictional limits involves a consideration of the tribunal ’ s grant of authority: Dunsmuir v New Brunswick , 2008 SCC 9 at para 59 , [2008] 1 SCR 190 . [ 21 ] Assuming a review officer is akin to a tribunal and proceeds with jurisdiction, when should a review decision be upset? Reviews of lawyer accounts proceed under

Part 10 of the Rules , which came into effect in 2010. There are few written decisions on assessing lawyer accounts under the new Rules . [ 22 ] Despite the new Rules , the old jurisprudence remains instructive. The change in name from “ taxing officer ” under the old Alberta Rules of Court , Alta Reg 390/1968 [ Old Rules ] to “ review officer ” under the new Rules is consistent with the goal of increasing usability and simplifying complex language: Alberta Law Reform Institute, Rules of Court Project , Final Report No 95 (Edmonton: ALRI, 2008) at para 9.

In that report ’ s rule concordance table, there is consistency that old rules regarding “ taxation ” concord with new rules regarding “ review. ” In Champagne v Sidorsky , 2012 ABQB 522 at para 26 , 220 ACWS (3d) 708 [ Champagne ] , Justice Jones found “ that the term ‘ litigation representative ’ under the Rules replaces and is inclusive of ‘ next friend ’ and ‘ guardian ad litem ’ under the Old Rules ” .

Likewise, I find that a “ review officer ” replaces a “ taxing officer ” and a “ review ” replaces a “ taxation. ” [ 23 ] In many instances this Court has turned to jurisprudence from the Old Rules to inform its

interpretation of the Rules . Champagne is one example where Jones J, again at para 26, found the existing jurisprudence, “ at the very least, highly influential. ” [ 24 ] Under the Old Rules , appeals of a taxing officer ’ s decision were not a de novo hearing. Rather, deference was owed to the

decisions made by a taxing officer. In McLennan Ross v Keen Industries Ltd (No 2) (1988), 1988 ABCA 224 , 86 AR 311 atpara 12 (CA) [McLennan Ross 2], the Alberta Court of Appeal said: There are practical grounds for not making the hearing before the reviewing judge a de novo hearing. In the first place, the taxing officerwill often hear evidence and examine material which gives rise to questions of credit or weight. A chambers judge cannot effectivelysubstitute his views on such questions.

Moreover, the taxing officer's function is a specialized one and he may have to bring his ownexperience and expertise to bear.

It is thus unlikely that the standard of review should be "de novo". [25] At para 13, the Court of Appeal found: In my view in Alberta the primary question on review of a quantum fixed by a taxing officer is (as in many other jurisdictions) whetherhe has made an error of principle, or whether the award is inordinately high or low. [26] This rule was, and remains, consistently applied: Anderson v Brink (BV) Professional Corp (1990), 1990 ABCA 103, 107 AR 143 at para 2 (CA) [Ben Vanden], 509703 Alberta Ltd v Witten Binder, 2000 ABQB 729 at para 19 [Witten Binder].New rule 10.26(2) specifies that an appeal from a review officer’s decision to this court is not de novo; it is an appeal on the record.After reviewing and confirming the deferential standard of review applicable to an appeal from a review officer’s decision, JusticeYamauchi in FMC v Kristof Financial Inc, 2012 ABQB 359 at para 18, 215 ACWS (3d) 1010 [FMC] stated “the parties must putforward their ‘best case’ to the review officer; not to the court hearing the appeal.” [27] A decision of a review officer should not be interfered with unless some improper principle was relied upon, the quantum ofthe reviewed account is so inordinately high or low as to reveal a mistaken principle, the review officer fails to consider the evidence andrepresentations made before the officer, or a finding of fact is clearly in error: McLennan Ross v Keen Industries Ltd (1987), 1987ABCA 174 , 83 AR 322 at para 6 (CA) [McLennan Ross 1], McLennan Ross 2 at paras 6 and 13, Carr & Co v Markdale Ltd(1996), 197 AR6 at para 17 (QB) [Carr & Co], Pacholok v Nichols (Neil

W) Professional Corp (1991), 1991 ABCA 85 , 117AR 300 at para 19 (CA), Pentz v Salmon, 1996 CarswellAlta 320 at para 5, [1996] AWLD 496 (CA), Witten Binder at para 19, FMC atpara 17, Carter v Blake (1982), 41 AR 418 at para 7 (NWT CA).

These are reversible errors. [28] In ascertaining value, the courts have again held that the review officer employs a specialized expertise and is entitled todeference: Carr & Co at para 20, Morrison v Pantony (Rod) Professional Corp, 2008 ABCA 145 at para 30, 429 AR 259 [Rod PantonyCorp], FMC at para 16. [29] But, where interference with a review officer’s decision is justified, the Court may reassess the account itself or return it for anew assessment, among other possible remedies: McLennan Ross 2 at para 6, Ben Vanden at para 4, rule 10.27(1).

Jurisdiction to Interpret Retainer Agreements [30] A jurisdictional question is raised by this appeal. It must be addressed first, because if the Review Officer lacked jurisdictionto proceed, that ends this appeal. In this case, probing questions are whether the Review Officer interpreted part of the retaineragreements and, if so, whether he had jurisdiction to do so.

If the Review Officer interpreted a retainer agreement and had no jurisdictionto do so, I must determine the remedy. [31] Under the Old Rules, a taxing officer had jurisdiction to determine quantum, but not to determine the method by whichquantum would be determined - referred to by Master Funduk in Lennie, DeBow and Martin v Richter (1984), 55 AR 26 (AB Master)and Peterson, Ross v Kirwood (1984), 52 AR 284 at para 25 (AB Master) as the “measuring stick to be used in assessing quantum.” [32] The Alberta Court of Appeal confirmed in MacKimmie Matthews v Hector (1998), 1998 ABCA 278 , 219 AR 163at para 7 (CA) that “[t]he taxation officer is limited to questions relating to a quantum alone and cannot resolve other issues which mayarise between the parties.” Other cases supporting this proposition include Rusnak v Commodity Investors Syndicate of Canada Limited(1982), 48 AR 311 at para 18 (QB), Bhojani v Ruff, [1997] AJ No 240 at para 3 (CA) and Witten Binder at para 16.

Very much onpoint, in Panther Petroleum Ltd v Code Hunter, 2002 ABQB 158 at para 16, 112 ACWS (3d) 225, Justice Rooke (as he then was)

“found that the Taxing Officer had erred because she had no jurisdiction to determine the terms of the retainer agreement”. [33] This limitation on the authority of a review officer is codified in rule 10.18(1)(a): 10.18(1) A review officer (

a) must refer any question arising about the terms of a retainer agreement to the Court for a decision or direction, and [34] The rule is not permissive, it is mandatory. A review officer must refer to the Court any question arising about the terms of aretainer agreement. The retainer agreement, when present, is a critical “measuring stick” used to assess the amount that should beallowed on an account. Questions of

interpretation are not for a review officer to hear and decide; where there is a dispute about terms,that dispute must be referred to the Court. [35] But, rule 10.9 gives jurisdiction to a review officer to make determinations of the reasonableness of a retainer agreement: 10.9 The reasonableness of a retainer agreement and the reasonableness of a lawyer’s charges are subject to review by a review officer inaccordance with these rules, despite any agreement to the contrary. [36] Rules 10.9 and 10.18(1)(

a) must be read together. In so doing, there is another rule that is helpful and broad - rule 10.18(1)(b). During a review proceeding, if in doubt, a review officer may turn to this permissive rule allowing reference to this Court of anymatter arising during a review. [37] The interplay between rules 10.18(1)(

a) and 10.9 works as follows. First, the retainer agreement must be understood. Eitherits 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 doubtsabout the

interpretation, the Court must ascertain its meaning. Thus, when the retainer agreement is properly understood, the reviewofficer may consider if the retainer agreement is reasonable. [38] However, when a review officer faces the need to resolve a “question arising about the terms of a retainer agreement”, rule10.18(1)(

a) requires a court reference. [39] Taxing Officer Christensen (now a Review Officer) aptly summarized the jurisdictional limits in Darichuk v Currie, [1999]AJ No 2 at paras 38-39 (QB Taxing Officer) [Darichuk]: It is beyond the jurisdiction of the Taxing officer to resolve a dispute as to the

interpretation of the terms of a retainer agreement, writtenor otherwise. ... While a taxing officer does not have the authority to hear and weigh evidence, and to rule upon fact and law as they relate to theexistence or non-existence of a retainer agreement or the disputed

interpretation of a retainer agreement's terms, [old] Rule 619specifically empowers a judge or clerk (taxing officer) to review a contingent fee agreement for the purpose of ensuring that it has beenentered into fairly and that its terms are reasonable. [40] In that case, Taxing Officer (now Review Officer) Christensen referred the resolution of an

interpretation issue to the Court.In another case involving contingency agreements, Vass v Engelking (1997), (AB KB), 215 AR 201 at para 40,

Taxing Officer Christensen correctly said “ [r]esolving disputes between parties regarding the terms of their retainer agreement is outside my jurisdiction as a taxing officer and the matter would have to be referred to this Honourable Court. ” Application to the Non-Treaty Litigation Accounts [ 41 ] With these principles in mind, I will now consider the record, which shows how the Review Officer interpreted the retainer agreement.

I begin with the non-treaty litigation accounts then turn to the treaty litigation account. [ 42 ] The non-treaty litigation accounts, Rath & Co strongly argues, were subject to an express oral or otherwise implied retainer agreement. None were the subject of a written retainer; that is the reason for their grouping.

Understandably, without a written retainer agreement, there is a dispute about the terms under which Rath & Co was retained. [ 43 ] Prior to the review proceeding, in a letter dated March 12, 2012 from Rath & Co to Sweetgrass, Rath & Co stated: With regard to all of the accounts rendered to Sweetgrass First Nation, with the exception of the account rendered pursuant to our Contingency Fee Agreement, accounts were rendered pursuant to an express or implied verbal agreement between the Chief and Council of the Sweetgrass First Nation and Rath & Company.

Evidence of this Agreement includes that all of our accounts (with the exception of the accounts rendered with [sic] the applicable six month limitation) were reviewed by the previous Chief and Council and paid as agreed. The nature of that Retainer Agreement was that Rath & Company was to bill at the prevailing hourly rates of its lawyers, students-at-law, legal researchers and paralegals as set from time to time and that these accounts including fees and disbursements would be paid by the Sweetgrass First Nation when rendered.

This Retainer Agreement prevailed in every account rendered with the exception of the account rendered pursuant to the Contingency Fee Agreement referenced above. It was agreed and understood by the Chief and Council of the Sweetgrass First Nation that accounts were due upon receipt and were final accounts with regard to the work described in each bill. [ 44 ] The Review Officer recognized that letter and the dispute over terms immediately before deciding that the terms of the retainer agreement were “ unspecified ” .

At p 201 of the review hearing transcript, he said: Rath and Company says that there is a retainer agreement, it ’ s a – set out, or I just summarized in a letter of March 12th, 2012, that has been filed with the materials. Rath and Company would bill at the prevailing hourly rates of its lawyers, and the accounts were paid, the First Nation did not complain, and that point has been made on numerous occasions respecting the accounts in question.

I wish to point out that that agreement and subsequent accounts arising from that agreement , as summarized in the letter of March 12th, 2012, are subject to being reviewed for reasonableness, but more so given the unspecified terms of the agreement , they are also subject to being assessed on a quantum meruit basis. [Emphasis added.] [ 45 ] So, the existence of a retainer agreement appears not to have been in dispute, though the specific terms of the agreement were.

Yet, the Review Officer found that the retainer agreements ’ terms were “ unspecified ” and the accounts were subject to being assessed as if there were no retainer agreements. [ 46 ] An express retainer does not need to be present.

While there are obvious benefits to reducing the relationship between a solicitor and client to writing, the definition of “ retainer agreement ” in the Appendix to the Rules provides for implied retainer agreements: “ retainer agreement ” means an express or implied agreement between a lawyer and a client with respect to the payment by the client of lawyer ’ s charges, and includes a contingency fee agreement[.]

[47] In Alberta, Justice Ritter (as he then was) said in Yang v Overseas Investments

(1986) Ltd (1995), (ABKB), 166 AR 178 at para 87 (QB): The law is clear that a retainer may be oral or written or inferred from conduct. (Jackson and Powell on Professional Negligence, 3rdEd., Sweet and Maxwell, London, 1992; Dean v. Wade [1885], 2 T.L.R. 157 (C.A.); Blythe v.

Flatgate, [1891] 1 Ch. 337; Groom v.Crocker, [1939] 1 K.B. 194 (C.A.)) Further, in a situation where the parties act as if the relationship of a solicitor and client exists,although there is no express agreement to that effect, the Court will readily hold that there is an implied retainer to be inferred from theparties conduct. (Pachet et al. v.

Law Society of British Columbia et al., supra) See also Granville Savings & Mortgage Corp v Slevin, (SCC), [1993] 4 SCR 279 and 051766 NB Ltd v Wilbur, 2010NBQB 34. [48] Despite the need to resolve a “question arising about the terms of a retainer agreement”, the Review Officer did not refer thematter to the Court. Instead, he interpreted the agreement. He found that he could not give meaning it, and found its terms “unspecified.”To do so required interpreting its terms, at least in part. [49] I do not have the benefit of full argument and full evidence on the question of what the retainer agreements’ terms were.

Theterms of a retainer agreement are a very significant factor in the proper assessment of the quantum to which a lawyer is entitled: rule10.2(1) and see the discussion later in these reasons. Thus, I am not satisfied that these accounts can be properly assessed without firstproperly understanding the terms of the retainer agreements. [50] In the result, these accounts will be remitted for a new review and, where necessary, questions of

interpretation will need tocome back to this Court. Application to the treaty litigation account [51] The largest account reviewed was the treaty litigation account. It is in this account that a written retainer agreement existed. [52] Rath & Co rendered a bill following termination by Sweetgrass, pursuant to a clause in the retainer agreement allowing Rath& Co to bill for the work done up to that point based on its normal hourly rates. The account rendered was $207,086.25 plusdisbursements.

The Review Officer decreased this amount to $76,000 plus disbursements, a total reduction of $131,086.25, or 63% ofbilled time. [53] The work on the treaty file resulted in a statement of claim.

The Review Officer allowed $17,500 for research (presumablylegal research), $7,500 for historical research, $35,000 for drafting the 69 page statement of claim, $12,500 for drafting a 20 page reply,and $3,500 for “court work.” At p 214 of the transcript, the Review Officer asked if any party has a calculator and states that his“intention is to have a global amount on this account of $76,000.” [54] Again, I must first consider whether the Review Officer exceeded his jurisdiction by interpreting the retainer agreement.

Rath& Co argues that the Review Officer did so by interpreting clause 3.9. [55] In his decision, from ps 206 to 210 of the transcript, the Review Officer discusses and contemplates the utility and effect ofcontingency fee agreements. To be fair, much of this discussion could be considered to be an analysis of the reasonableness of theretainer agreement, which is within the jurisdiction of a review officer pursuant to rule 10.9.

At p 208, the Review Officer said: I know that the clause speaks of the total time spent by the firm times [sic] hourly rates of the lawyers of the firm charge [sic] in thenormal course of business, no specific hourly rates are identified, and in many of these clauses often a dollar amount, a set dollar amount,

is stipulated. That wasn ’ t done here. In my view, reasonableness is to be read into the clause as follows: total time reasonably incurred, so was it put to reasonable work by the firm times reasonably – or times reasonable hourly – hourly rates of the lawyers of the firm. [sic] charged in the normal course of business. In other words, reasonable time being posted, and that the charges for that time would be reasonable. [Emphasis added.] [ 56 ] What is “ reading in ” ?

Is it interpreting the retainer agreement, to resolve a question arising about its terms, or something else? [ 57 ] In Omers Energy Inc v Energy Resources Conservation Board (Alta) , 2011 ABCA 251 , 513 AR 292 [ Omers ] , the Alberta Court of Appeal reviewed the Energy Resources Conservation Board ’ s ( “ ERCB ” )

interpretation of a gas well lease. The question was whether it was proper for the ERCB to interpret the gas well lease by reading in the words “ in meaningful quantities ” after “ capable of producing the leased substances ” , the literal words contained in the lease. [ 58 ] At para 33, the Court of Appeal said that “ [a] tribunal, interpreting such a contract, must search for the intention of the parties by examining the specific words used with regard to the whole contract and the demonstrated intention of the parties ” . This was an interpretive exercise, to determine the meaning of the lease.

In that case, unlike this one, there was no dispute that the ERCB was entitled to interpret the contract in question. [ 59 ] “ Reading in ” is a recognized tool of statutory

interpretation, an area which informs contractual

interpretation. In the leading text on statutory

interpretation, Sullivan on the Construction of Statutes , 5th ed (Markham: LexisNexis, 2008), Ruth Sullivan wrote at 165, “ [t]he terms ‘ reading down ’ and ‘ reading in ’ are used in both statutory

interpretation and Charter application. In statutory

interpretation, they refer to interpretative techniques designed to give effect to the intended scope of legislation ” . In Omers there are references to “ reading in ” as an interpretive technique at paras 49, 51, 56, 72, 76 and 77. [ 60 ] In R v DAI , 2012 SCC 5 at para 25 , [2012] 1 SCR 149 , McLachlin CJ speaks of interpreting section 16(3) of the Canada Evidence Act , RSC 1985, c C-5. In doing so, she rejects “ reading in ” a requirement. [ 61 ] I am satisfied that reading words into a contract is an interpretive technique. But it could also be more or have a different effect.

Sullivan, at 165 and 168, acknowledges an alternative understanding of reading words into a document: amendment. In that case, the effect is no longer to simply interpret a document but, the bigger step, to change it, which is inconsistent with r 10.18(1)(a). To use the language of that rule, amending, as interpreting, would answer a “ question arising about the terms of a retainer agreement ” . [ 62 ] I am satisfied that, by adding his own words to clause 3.9, the Review Officer has answered a “ question arising about the terms of a retainer agreement ” .

The Review Officer embarked on the same activity as the ERCB in Omers -

interpretation of a contract. Unlike in Omers , where the ERCB had jurisdiction to interpret the gas well lease, the Review Officer lacked that jurisdiction. [ 63 ] Confusingly, and notwithstanding his reference to reasonableness, the Review Officer was alert to his jurisdictional limits and aware there was a need to interpret the terms of the agreement. [ 64 ] At p 138 of the transcript, the Review Officer addressed

interpretation of clause 3.9: So what did your client understand, and I am just dealing right now with the – I want to get this

interpretation out or this dispute about

interpretation, what did your clients understand 3.9 to mean? [ 65 ] But, at p 140, the Review Officer recognized his jurisdictional limits by asking counsel to press it: But if you want to press that issue, you could certainly advise me at the end of these proceedings; and depending on what we do, I

certainly can do a reference because I have no jurisdiction over interpreting the agreement, though I think I do have jurisdiction over saying what is reasonable to enforce the agreement and that ’ s between the client and the lawyer. [ 66 ] Referring again to the

interpretation of clause 3.9 at p 186, the Review Officer queried: The second point is that what you comment, clause 3.9 is to protect the solicitor or one of the reasons, to protect the solicitor, right? What is your comment about the generality in 3.9 in that it refers to hours and what it is our normal hourly rates or something. It uses a general phrase on the hourly rates. Let ’ s get it right. [ 67 ] While alive to jurisdictional limits regarding

interpretation, and the need to ascertain the meaning of clause 3.9, in the end, the Review Officer seems to have applied his understanding of jurisdictional limits only to the question of when amounts might be due.

In his concluding remarks at p 215, he acknowledged the continuing problem: I looked at my – my role as assessing the – the accounts, it is now up to counsel to take the next step, obviously if you have to, to take it to the court, and at that point in time if there ’ s issues as to what the agreement says, because I know that you ’ ve had some issues about what it – you know, the monies included, if there ’ s issues about timing of payment that will be dealt with by the court, I hope, on that application. Those issues of

interpretation or practice under the agreement were unnecessary for me to look at because I was just to review the agreement vis-a-vis, this is the account we produced under it, is the account reasonable, I ’ ve done that. ... – and – and it ’ s up to you, the – the counsel now, to work out the next steps, which if you can ’ t agree, well it would be court, and then let the court consider timing issues and

interpretation issues . [Emphasis added.] [ 68 ] It was necessary to properly understand the terms of the retainer before the Review Officer could assess the quantum of the account. [ 69 ] It could be argued that the Review Officer, by inserting words about reasonableness, has not interpreted the retainer agreement any further than was inevitable, for under rule 10.9 a retainer agreement is subject to review for reasonableness. Thus, it would be argued, even though the Review Officer embarked on an interpretive journey, no miscarriage of justice has occurred.

Indeed, Sweetgrass has argued this point. [ 70 ] But a review for reasonableness of a retainer agreement must proceed in the context of the whole retainer agreement, and only after it is properly and carefully understood. A relevant consideration to the

interpretation, for example, is clause 3.15 of the retainer agreement (numbered in error as there are two clauses numbered 3.15): As the Firm is sharing the risks of the action with the Client and the Firm receives no compensation for the Firm ’ s services unless Claim Proceeds become payable to the Client, the compensation prescribed above may be higher than would otherwise be charged if the Firm was retained on a normal fee basis. [ 71 ] This clause accurately describes some of the risk undertaken by the lawyer in a contingency fee arrangement.

Given the nature and risks of contingency fee agreements, reviewing such an agreement for reasonableness may be different from reviewing a non- contingency retainer agreement. Courts are cautious in displacing the intention of the parties to a retainer agreement. In 2008, the Alberta Court of Appeal said, in Rod Pantony Corp at paras 26-28 :

[T]he courts should not set aside agreements between solicitors and clients without good cause. ... A client cannot without good reason be allowed to negotiate and sign an agreement, stand by and permit the solicitor to invest his or hertime and money in the file, and then at the last minute refuse to pay the negotiated compensation.

Whatever duties there are on a solicitorwhen entering into a retainer agreement with a client, those duties should not allow an ungrateful client to deprive the solicitor oflegitimate compensation. [72] In Canada Life Casualty Insurance Co v Pahl (1997), (AB KB), 207 AR 65 at para 15 (QB), JusticeCôté (as he then was) said “[t]he solicitor and client can make any express contract which they desire (subject to express Rules of Courtabout liability, filing and review under such contracts).” See also Braithwaite, Boyle and Associates, Re (1995), (ABKB), 171 AR 76 at para 7 (QB Taxing Officer). [73] I observe that rule 10.5 states that a retainer agreement may result in an entitlement for the lawyer in a “greater or lesser”amount than a review under rule 10.2 would, had no retainer agreement existed.

Interpreting (or, amending) “hourly rates... charged inthe normal course of business” as (to be) “reasonable hourly rates” may create a very different result than that anticipated when theparties entered the agreement. [74] The review of the treaty litigation account must be set aside and the account returned to a review officer for a new reviewconsistent with the above-listed principles. Proper Review of Lawyer Accounts [75] I have concluded above that the Review Officer proceeded without jurisdiction per rule 10.18(1)(a). There are other reasonsto refer the accounts back, quite apart from the

interpretation issue.

While I focus on the treaty litigation account, this analysis isapplicable to all eight accounts reviewed. [76] Rule 10.2(1) provides that “[e]xcept to the extent that a retainer agreement otherwise provides, a lawyer is entitled to be paida reasonable amount for the services the lawyer performs for a client” considering, at least, the nature, importance and urgency of thematter; the client’s circumstances; the trust, estate or fund, if any, out of which the lawyer’s charges are to be paid; the manner in whichthe services are performed; and the skill, work and responsibility involved. [77] Common law factors to be included under rule 10.2(1) include the difficulty of the matter; the monetary value at stake; thecompetence of the lawyer; the results achieved; the client’s expectations regarding fees; and the client’s ability to pay: MacDonald &Freund v Chernetski (1987), (AB KB), 81 AR 142 at paras 21-26, 29-46 (QB) [MacDonald], Witten Binder at paras27-30.

Understandably, the solicitor’s bill, which is the solicitor’s conscientious estimate of the value of the work performed, is animportant consideration in a review proceeding: McLennan Ross 1 at para 9. [78] Principles of contractual

interpretation suggest the interpretive principle of contra proferentem applies to retainer agreementsand their reasonableness is considered in the context of the circumstances known to the parties at the time the agreement was signed:Rod Pantony Corp at paras 12, 21 and 29, rule 10.19(2). Application [79] Taking the treaty litigation account as an example, the end product was a statement of claim along with general preparationfor litigation. Some statements of claim may merit only a relatively limited amount of preparatory work.

Decided cases suggestaboriginal treaty litigation often requires a great deal of time and work. It may require intensive research into historical documents inorder to establish the foundation for claims. In this specialized area of the law, many documents are old and missing, and litigation can

be long and complicated. [80] To illustrate, the trial in Xeni Gwet’in First Nations v British Columbia, 2012 BCCA 285, 33 BCLR (5th) 260 occupied 339court days over nearly five years: para 24. Twenty-four Tsilhqot’in witnesses were called and expert evidence in the fields ofanthropology, archeology, cartography and biology was heard.

The British Columbia Court of Appeal, at para 26, noted that the casepresented “very complex and difficult litigation” and that it could “set important precedents for Aboriginal title and rights claims.” Atpara 27, the Court noted that “[t]he trial was a massive undertaking for the parties, their counsel, and for the trial judge.” [81] Delgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010 at para 5 [Delgamuukw] required 374 daysof trial time. Oral histories and legends were presented. During the trial, the court heard from experts in genealogy, linguistics,archeology, anthropology and geography.

The Court had to delineate the boundaries of land claims: para 27. [82] In Delgamuukw at para 83, citing R v Van der Peet, (SCC), [1996] 2 SCR 507 at para 62 [Van der Peet],Lamer CJ noted that because “many aboriginal societies did not keep written records at the time of contact or sovereignty, it would beexceedingly difficult for them to produce (at para. 62) ‘conclusive evidence from pre-contact times about the practices, customs andtraditions of their community’.” At para 84, the Court noted that Canadian courts must: adapt the laws of evidence so that the aboriginal perspective on their practices, customs and traditions and on their relationship with theland, are given due weight by the courts.

In practical terms, this requires the courts to come to terms with the oral histories of aboriginalsocieties, which, for many aboriginal nations, are the only record of their past. [Emphasis added.] [83] At para 85, Lamer CJ quoted with authority the Royal Commission on Aboriginal Peoples, Report of the Royal Commissionon Aboriginal Peoples Volume 1: Looking Forward, Looking Back (Ottawa: Canada Communication Group, 1996) at 33: The aboriginal tradition in the recording of history is neither linear nor steeped in the same notions of social progress and evolution [as inthe non-Aboriginal tradition].

Nor is it usually human-centred in the same way as the western scientific tradition, for it does not assumethat human beings are anything more than one - and not necessarily the most important - element of the natural order of the universe.Moreover, the Aboriginal historical tradition is an oral one, involving legends, stories and accounts handed down through the generationsin oral form. ... Oral accounts of the past include a good deal of subjective experience.

They are not simply a detached recounting of factual events but,rather, are “facts enmeshed in the stories of a lifetime”. [84] The concept that aboriginal histories are different than what common law courts are used to is not unique to one case. This isa background that the Supreme Court of Canada, in Delgamuukw and Van der Peet, used to determine legal rules, largely aboutevidence.

These rules, then, demonstrate that aboriginal cases may be difficult to prove, because of the rich history from centuries goneby, often passed down orally and without a written record and in languages spoken by small numbers of people (and thus requiring aninterpreter). Moreover, these histories - the evidence which will give substance to a case - is in a different, often more subjective, formthan courts are familiar with.

In Delgamuukw at para 87, Lamer CJ recognized that the evidence must be reviewed “on a case-by-casebasis.” [85] In aboriginal rights, the law, it seems, is always in flux; in Delgamuukw at para 79, Lamer CJ acknowledged that problems“can arise in quickly evolving areas of law such as the jurisprudence surrounding s. 35(1).” On filing such a case, the result sought maybe a new legal precedent. The lawyer must consider how to prove claims while relying on evidence in a form the common law courts areunfamiliar with.

Van der Peet and Delgamuukw stand for the proposition that courts must accommodate different forms of evidence.The corollary is that the barrister embarking upon such a case will have to consider how to present evidence in a convincing manner.While a statement of claim is not evidence, it begins the claim, which will be proven with evidence.

[86] The result is that aboriginal rights litigation is evolving, time consuming and expensive. Settling a statement of claim is a keypart of every case.

Indeed, to allow these cases to proceed, the Supreme Court of Canada has affirmed the right, in proper cases of publicinterest, to public financing by way of interim costs payable by the Crown: British Columbia (Minister of Forests) v Okanagan IndianBand, 2003 SCC 71, [2003] 3 SCR 371. [87] There are many more examples: R v Sparrow, (SCC), [1990] 1 SCR 1075, R v Badger, (SCC), [1996] 1 SCR 771, R v NTC Smokehouse Ltd, (SCC), [1996] 2 SCR 672, R v Marshall, (SCC), [1999] 3 SCR 456 and R v Morris, 2006 SCC 59, [2006] 2 SCR 915 are to name but a few. Mr.

Rath’s testimony before theReview Officer indicates he has been involved in many of Canada’s leading aboriginal law cases. [88] Admittedly, the mere fact that aboriginal litigation is often difficult, protracted and expensive, on its own, does not answerthe question of how much work is justified to be able to file pleadings, in this case a statement of claim. In a case like this, with so manyboxes of evidence, I do not know the answer and am not deciding what was reasonable to charge; that is a decision for a review officer,not me.

However, in determining the appropriate amount, the context, including the nature and importance of the matter, is relevant: rule10.2(1)(a). [89] Still, this much is known: Sweetgrass produced the Statement of Claim generated by Rath & Co at tab 5 of its “Documents ofSweetgrass First Nation” book. As a brief and incomplete

summary, the 69 page Statement of Claim addresses: 1. the basis of an aboriginal treaty claim; 2. an annuity payment claim on a per capita basis, accounting for inflation; 3. compensation for land taken up; 4. compensation for other written and oral obligations under the treaty; 5. Indian status claims; 6. breach of trust and fiduciary obligations; 7. timber harvesting rights; and 8. legal rights stemming from international law. [90] The Statement of Claim seeks: 1. declaratory remedies (with at least 22 different declarations sought); 2. monetary damages; 3. an accounting of profits;

4. injunctive relief; 5. interest; 6. other equitable and legal remedies; and 7. costs on a solicitor-client basis. [ 91 ] Claims are made for 1,686 members of Sweetgrass and 500 additional potential members which, it is argued, are entitled to status under the Indian Act , RSC 1985, c I-5. [ 92 ] The statement of claim is the foundation for litigation based upon a theory of the case. Arguments are correspondingly developed based on legal and historical research.

Regarding historical research, the Review Officer stated at p 212 of the transcript: [W]hen it comes to the research, binders 12 and 14 have a collection of handwritten historical documents in them as well as some other matters, articles and that type of thing, and it is clear, and this point was made by Rath – Mr. Rath and Molstad at the hearing, that there was more than just the – the legal research legally speaking, there was some historical research which means presumably the potential for some evidence, and I note that, and these documents, these historical documents, will have some value.

Now I don ’ t know what the value is going to be, that ’ s unknown, I – I would only be speculating, but they ’ re likely to have some – some value. [ 93 ] The Statement of Claim discloses a significant conflict. There are many legal issues at play, involving a significant amount of land and money claimed on behalf of over 2,100 individuals. Breach of trust and fiduciary obligations is alleged; an action like this is no small matter. [ 94 ] In the context of key procedural issues, I question how the Review Officer valued the significant historical research.

I turn to comments made by the Review Officer at p 205 of the transcript, where he understandably states that the treaty litigation is “ a major complex piece of litigation [that could] carry on for a decade. ” The Review Officer scoffed at Mr.

Rath ’ s suggestion that the litigation could take “ maybe five or seven years ” calling that “ optimistic. ” In the decade that the Review Officer expected the case could take, he said, at ps 205-206 of the transcript: the law could change, court rulings will evolve, and the risk here is that they may be involved as we all know, they may evolve on bad cases, the lawyers that, you know, as we would talk between ourselves, we all know the expression, that bad facts make bad law, and – and there ’ s a risk that as these – as this time goes by that the law could evolve, it could evolve negatively beyond the control of the parties that are on this review, and certainly could evolve in a bad way.

So the law could evolve, it could help, or it could hinder the case. ” [ 95 ] At p 206, the Review Officer called the litigation “ truly a gamble ” that required “ the First Nation and Rath and Company [to deal] with how they were going to fund this litigation, fund the gamble ” .

Then, based on reasoning that was not apparent to me given his comment about the gamble the Review Officer, at p 210, found that “ the problem ” , which is addressed in the 69 page Statement of Claim “ is neither new nor novel ” . [ 96 ] Thus, on the face of the record, the approximate $152,000 reduction leaves the quantum allowed inordinately low and thus, to use the words of the Court of Appeal in McLennan Ross 2 at para 6, “ betrays an error of principle. ” [ 97 ] I acknowledge the comments of Justice Hall in Scott v Shea Nerland Calnan LLP (13 September 2012), Calgary, 1201 01288 (Alta QB):

I also find that the amount of the reduction is inordinate. A reduction of two-thirds of an account – or two-thirds of the value of an account for services rendered at – at an agreed hourly rate, at least for the principal lawyer, must be considered by this Court to [sic] inordinate. [ 98 ] In this case, the reduction on the accounts, 63% on the treaty litigation account, falls in the range of reduction (almost 2/3) consistent with Justice Hall ’ s remarks.

This reduction is both prima facie inordinate and raises concerns of principle as I have addressed above. [ 99 ] I want to make it clear that I am not deciding the final number. Indeed, there may be reasons to justify this quantum.

Sweetgrass, at the review hearing, at p 169 of the transcript, argued that despite the apparent complexity of the Statement of Claim, the matter “ is a pretty straightforward piece of litigation ” , that there was “ nothing new in [the] claim ” and, rather, that the “ issues have been raised before, undoubtedly they will be raised again. ” At p 170, Sweetgrass argued that Rath & Co used inefficient drafting techniques and filed the Statement of Claim before engaging in a comprehensive review of the evidence to support the claim. [ 100 ] Nevertheless, I would find there is an insufficient mix of evidence and reasons on the record to justify the reduction, given the nature of the retainer agreement (without having determined a particular

interpretation); the conscientious estimate of the amount payable that is Rath & Co ’ s bill; the nature and importance of the matter; the client ’ s circumstances as an aboriginal group with a claim vested in a complex area of law; the skill, work and responsibility involved; the monetary value at stake; and the difficulty of the matter. Remedy and Conclusion [ 101 ] For the reasons listed above, this matter is returned under rule 10.27(1)(

c) for a rehearing consistent with the principles listed above. Acknowledging Rath & Co is situated in Priddis, Alberta, but counsel for both sides are based in Edmonton, and also acknowledging the desire to have this matter concluded as soon as possible, pursuant to rules 10.12(1) and (3), the new review should take place as soon as it can be arranged, in either Calgary or Edmonton. Costs [ 102 ] If the parties cannot agree on costs, written submissions of up to 3 pages may be submitted within 60 days of this decision being signed. Heard on the 16 th day of January, 2013. Dated at the City of Calgary, Alberta this 15 th day of March, 2013. W.A. Tilleman J.C.Q.B.A. Appearances:

Edward H. Molstad, QC Jeffrey R.W. Rath for the Appellant J. Trina Kondro for the Respondent Appendix A Overview of accounts reviewed.

Account Invoice # Billed legal fees Billed disbursements Total billed On review reduced to Reduction Reduction as a % of billed fees Reduction as a % of total billed General Matters 2651 14,557.50 779.45 15,336.95 6,891.95 8,445.00 58.0% 55.1% General Matters 2671 2,460.00 417.19 2,877.19 1,977.19 900.00 36.6% 31.3% Taxation bylaw 2652 14,380.00 5.75 14,385.75 9,385.75 5,000.00 34.8% 34.8% Taxation bylaw 2672 7,480.00 158.25 7,638.25 4,138.25 3,500.00 46.8% 45.8% Oil & gas joint venture 2654 12,480.00 43.00 12,523.00 11,023.00 1,500.00 12.0% 12.0% Treaty 6 litigation 2740 207,086.25 11,000.62 218,086.87 87,000.52 131,086.25 63.3% 60.1% Taxation bylaw 2752 4,060.00 41.85 4,101.85 2,601.85 1,500.00 36.9% 36.6% Oil & gas joint venture 2785 1,165.00 13.20 1,178.20 1,178.20 0.00 0.0% 0.0% Total 263,668.75 12,459.31 276,128.06 124,196.81 151,931.25 57.6% 55.0% Appendix B Alberta Rules of Court , Alta Reg 124/2010.

Part 10 Lawyers ’ Charges, Recoverable Costs of Litigation, and Sanctions Division 1 Lawyers ’ Charges, Retainer Agreements and Right of Review

Definitions 10.1 In this Part, (a) “assessment officer” means the court clerk for the judicial centre in which the action is located; (b) “review officer” means an assessment officer who, in the opinion of the clerk of the Court, has for the purpose of reviewing contingency fee or retainer agreements and lawyers’ charges (

i) an acceptable degree in law, and (ii) sufficient experience in the practice of law, and who is designated as a review officer by (iii) the clerk of the Court for the judicial centre in which the action is located, or (iv) if there is no clerk of the Court for the judicial centre in which the action is located, the Minister. Subdivision 1 Lawyers ’ Charges Payment for lawyer ’ s services and contents of lawyer ’ s account 10.2(1) Except to the extent that a retainer agreement otherwise provides, a lawyer is entitled to be paid a reasonable amount for the services the lawyer performs for a client considering (

a) the nature, importance and urgency of the matter, (

b) the client’s circumstances, (

c) the trust, estate or fund, if any, out of which the lawyer’s charges are to be paid, (

d) the manner in which the services are performed, (

e) the skill, work and responsibility involved, and (

f) any other factor that is appropriate to consider in the circumstances. ... Subdivision 2 Retainer Agreements Retainer agreements 10.5(1) A lawyer may make an agreement with a client about the amount and manner of payment of the whole or any part of past or future lawyer’s charges for services performed by the lawyer.

(2) The amount a lawyer is to be paid may be determined in any appropriate way, including

(

a) a gross sum, (

b) commission, (

c) percentage, (

d) salary, or (

e) an hourly rate.

(3) The amount payable may be at the same or at a greater or lesser rate than the rate to which the lawyer would be entitled under rule 10.2 if no retainer agreement were entered into. ... Subdivision 3 Contingency Fee Agreements Contingency fee agreement requirements [Rule 10.7 specifies technical requirements for contingency fee agreements.] ...

Subdivision 4 Right of Review Reasonableness of retainer agreements and charges subject to review 10.9 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. Time limitation on reviewing retainer agreements and charges 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. ... Location of review 10.12(1) Where a lawyer carries on business in Alberta, the lawyer’s charges may be reviewed by a review officer at the judicial centre nearest to where the lawyer carries on business.

(2) Where a lawyer does not carry on business in Alberta but the client resides in Alberta, the lawyer’s charges may be reviewed by a review officer at the judicial centre nearest to where the client resides.

(3) Notwithstanding subrules (1) and (2), and in any other case, the Court may designate a location for the review of the lawyer’s charges.

... Review officer ’ s authority 10.17(1) For the purpose of conducting a review under this Division, a review officer may do all or any of the following: (

a) take evidence either by affidavit or orally under oath, or both; (

b) direct the production of records; (

c) require notice of the appointment for the review to be served on persons who may be affected by the review or who have an interest in the trust, estate, fund or property from which the lawyer’s charges are or may be paid or charged; (

d) give directions about how notice of the appointment for the review is to be served; (

e) allow a party to be represented by a lawyer; (

f) require details of a retainer agreement, or of the services provided, money collected and expended, disbursements or other charges claimed or any other matter necessary to understand the agreement or charges and decide whether the agreement or charges, or both, are reasonable; (

g) validate service of the notice of the appointment or, if service is impractical or impossible, dispense with service.

(2) A review officer may not review either a retainer agreement or a lawyer’s charges that have previously been reviewed by a review officer unless the Court so orders or the parties agree. Reference to Court 10.18(1) A review officer (

a) must refer any question arising about the terms of a retainer agreement to the Court for a decision or direction, and (

b) may refer any question arising about a lawyer’s charges to the Court for a decision or direction.

(2) The review officer may do all or any of the following: (

a) require one party to serve another party or other interested person with notice of the reference; (

b) specify how a reference to the Court is to be prepared and by whom; (

c) prescribe time limits; (

d) specify any other matter for the effective and efficient disposition of the reference.

(3) On considering a question referred to it, the Court may make any order it considers appropriate in the circumstances, including (

a) an order to enforce a direction given under rule 10.17, or (

b) with respect to a review of the terms of a retainer agreement, an order approving the agreement or varying or disallowing the agreement in whole or in part.

(4) If a contingency fee agreement is disallowed, the amount payable to the lawyer for the lawyer’s charges must be determined under rule 10.2. Review officer ’ s decision 10.19(1) A review of a lawyer’s charges must take into consideration the factors described in rule 10.2, except to the extent that a retainer agreement otherwise provides.

(2) A review of a retainer agreement must be based on the circumstances that existed when the retainer agreement was entered into.

(3) The review officer may, in a review of a lawyer’s charges, allow the charges, or vary, reduce or disallow all or any of the charges, and certify the amount payable for and against each party, and may issue an interim certificate.

(4) A review officer’s decision must be given by an interim or final certificate, which may be endorsed on a copy of the lawyer’s account, and the certificate must (

a) certify the amount to be paid by each party or person, (

b) certify any special circumstance and the amount to be paid by each party or person with respect to the special circumstance, and (

c) be dated and signed by the review officer.

(5) An interim or final certificate of a review officer that meets the requirements set out in subrule (4) is conclusive proof of the amount that a party or person who had notice of the review must pay. ... Subdivision 5 Appeal from Review Officer ’ s Decision Appeal to judge 10.26(1) A party to a review officer’s decision under this Division may appeal the decision to a judge.

(2) The appeal from a review officer’s decision is an appeal on the record of proceedings before the review officer. ... Decision of judge 10.27(1) After hearing an appeal from a review officer’s decision, the judge may, by order, do one or more of the following: (

a) confirm, vary or revoke the decision; (

b) revoke the decision and substitute a decision; (

c) revoke all or part of the decision and refer the matter back to the review officer or to another review officer; (

d) make any other order the judge considers appropriate.

(2) If the amount of lawyer’s charges payable pursuant to the decision of the review officer has been paid and, after payment, is reduced on appeal, the lawyer may be ordered to return the excess and, if the lawyer fails to do so, the lawyer, in addition to being liable for that amount, may be found guilty of a civil contempt. ... APPENDIX

DEFINITIONS In these rules, ... “retainer agreement” means an express or implied agreement between a lawyer and a client with respect to the payment by the client of lawyer’s charges, and includes a contingency fee agreement;