Moore v. Hildebrand, 2013 ABQB 167

Court of Queen ’ s Bench of Alberta Citation: Moore v. Hildebrand, 2013 ABQB 167 Date: 20130321 Docket: 1201 05448 Registry: Calgary Between: Kirk Moore Plaintiff/Respondent - and - Sandra Hildebrand Defendant/Appellant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Lawyer Hildebrand appeals the decision of the review officer, formerly known as a taxing officer, who held that because the lawyer had not complied with Rule 10.14 when her client had requested an appointment for review, she had forfeited her right to payment from her client. [ 2 ] The appeal is allowed: in the circumstances here, the review officer did not give adequate consideration to whether he

should exercise his discretion under Rule 10.14(3) to relieve the lawyer from forfeiture. [ 3 ] However, despite her success on the appeal, given that it was the lawyer ’ s failure to follow a clear rule that required two court attendances by the client and will require him to attend on a third occasion, the lawyer will pay to the client costs of $300.00 for the CCTV appearance and for this appeal. Cases and authority cited [ 4 ] By the appellant:

Part 1: Foundational Rules, Rules of Court. [ 5 ] By the court: Slater Vechhio LLP v Cashman [2013] BCSC 134; Gallant v Farries 2012 ABCA 98 . Appendix A: Review officer è s decision on forfeiture 1. Background [ 6 ] Mr. Moore asked for a review of his lawyer, Ms. Hildebrand ’ s, account. As I understand it from submissions made on behalf of Ms. Hildebrand, because there was a backlog of such applications in Calgary, Mr. Moore ’ s application was heard using CCTV by a review officer located in Red Deer. Mr.

Moore was not represented by a lawyer either on the review or on this appeal. [ 7 ] Rule 10.14 of Alberta ’ s Rules of Court states: Client-obtained appointment: lawyer ’ s responsibility 10.14(1) If a lawyer is served with notice of an appointment for a review of the lawyer ’ s charges or retainer agreement, or both, the lawyer must file a copy of the account, appropriately signed, in respect of which the client seeks a review, and any retainer agreement, whether or not the lawyer intends to rely on them.

(2) The documents must be filed 5 days or more before the appointment date or within any other period specified by a review officer, and the review officer may vary the period before or after the time limit has passed.

(3) If the lawyer does not comply with this rule, the lawyer forfeits the right to payment of the lawyer ’ s charges in any account that is the subject of a review unless the review officer otherwise directs. (Emphasis added) [ 8 ] The CCTV facility used by the parties for the review is not sufficiently sophisticated to allow the perusal of documents. [ 9 ] Form 42 in

Schedule A of the Rules of Court includes a box, entitled WARNING , in bolded capitals, which reminds lawyers that if they do not, as required, submit a copy of any retainer agreement as required by the Rules, they will forfeit their right to payment unless the review officer otherwise directs. [ 10 ] Without providing any evidence in support of her contention, the appellant lawyer states: It has been determined that the practice within the Judicial Centre of Calgary for some time has not at all been to require the filing of a

It has been determined that the practice within the Judicial Centre of Calgary for some time has not at all been to require the filing of a Retainer Agreement.

The practice within the Judicial Centre of Calgary has been to accept the Statement of Account only, and to allow any further supporting material, including Retainer Agreements, to be submitted at the Review Hearing, if deemed to be relevant. [ 11 ] When the review officer indicated that he was going to forfeit the lawyer ’ s right to payment of her account because of her failure to comply with the Rules, the lawyer did not ask for an adjournment to bring herself into compliance with the Rules. 2.

Did the review officer err in forfeiting the right to payment? [ 12 ] On this appeal, the lawyer raises three arguments: that the review officer erred in law by forfeiting her right to payment without acknowledging that there was an uncontested contractual arrangement between the lawyer and her client; that it was not necessary for her to file anything, notwithstanding Rule 10.14; and that it was unjust and inequitable for her account to be forfeited as a result of not filing the retainer agreement. [ 13 ] Although the first two of those arguments are, for the reasons that follow, wrong, I do agree that, in all the circumstances it was unfair for the review officer to have concluded, without any exploration whatever, that no relief from forfeiture would be granted. (

i) Does the fact that there was a contract between the lawyer and the client prevent the forfeiture of the lawyer ’ s right to payment under that contract? [ 14 ] The lawyer claims: In this case, there was no question with respect to Ms. Hildebrand ’ s contractual right to be paid for the services provided. Accordingly, the right for Ms. Hildebrand to receive fees for legal services rendered to the Respondent was derived from the contractual arrangement as set out within the Statement of Account.

As that contractual arrangement was not contested the Taxation Officer erred in law by forfeiting the account and failing to apply Rule 10.2(1) of the Alberta Rules of Court. [ 15 ] This argument is wrong in law. There are many situations in which the law will not force a party to a contract to make payments under the contract; one simple example is where a claim pursuant to the contract is made outside a limitation period. Another example is where all of the work that is required to be done under a contract has not been done, although some work has been done: Slater Vecchio LLP .

The Rules of Court entitle the court, the profession and the government to establish rules with respect to various aspects of the practice of law in the courts; one of those aspects is the procedure to be followed by lawyer ’ s in making claims for fees. [ 16 ] The lawyer claims that the foundational rules of the Rules of Court assist her in emphasizing that process should be simplified. With respect that argument is wrong in law. As our Court of Appeal emphasized in Gallant , the foundational rules cannot over-ride a specific obligation found elsewhere in the rules.

Here, there is a specific requirement in Rule 10.14 to file a retainer agreement. The foundational rules cannot over-ride that clear requirement. [ 17 ] Moreover, this is a situation in which Rule 10.14 is obviously designed to achieve some of the same objectives as the foundational rules: the quickest way at the least expense for the review officer to get a background context for a fee dispute is to examine, in advance of the review hearing, the basic materials - including the retainer agreement - that will establish the right to recovery.

That objective was particularly important in this case because the review officer was not located in the same room as the litigants, but the litigants were appearing before the officer by way of CCTV. The CCTV facilities available at the courthouse are not sufficiently sophisticated to allow an electronic perusal of documents.

Since the lawyer had not filed the materials in advance of the hearing, it would have been impossible for the lawyer, during the hearing, to have displayed the retainer agreement to the review officer in a way in which the review officer could have read it. [ 18 ] The objectives of the foundational rules to simplify legal process is also well served by Rule 10.14 in this case because the respondent is a self-represented litigant. The Rule spells out clearly for him what he can expect at a review hearing, and he is entitled to rely on the Rule.

(ii) Was it unnecessary for the lawyer to comply with Rule 10.14? [ 19 ] The lawyer claims: In this case the Respondent filed a copy of the Statement of Account, which Statement of Account complies with Rule 10.2(3) of the Alberta Rules of Court . Accordingly, it was redundant and unnecessary for Ms. Hildebrand to file anything, notwithstanding Rule 10.14 of the Alberta Rules of Court. [ 20 ] This argument is wrong in law.

Where there is a written contract between parties, it is impossible to determine if a charge made by one party is a legitimate charge, much less a reasonable one, without referring to the contract. A clear example of the need to refer the written contract is found in this case in relation to the lawyer ’ s consultation fee. At p. 6, line 28 of the transcript of the hearing, the lawyer mentions that she told the client, prior to meeting with him, that her consultation fee was $425.

However, the fee agreement itself stated that the client agreed to be invoiced at a rate of $425.00 per hour for work performed by the lawyer. The lawyer ’ s Statement of Account indicated that the initial consultation meeting with the client took 0.6 hours. Therefore, according to the written contract, the most the appellant could charge for the consultation meeting was $255.00.

A review officer could determine that it was not reasonable for her to even charge that amount for the actual consultation performed, but the review officer certainly could not determine that she was entitled to charge more than $255.00 for the consultation. (iii) Was the review officer correct in summarily forfeiting the right to payment? [ 21 ] With respect to the review officer, I am of the view that he acted too quickly in deciding not to exercise his discretion to protect the lawyer from forfeiture. [ 22 ] One of the options which the review officer should have explored was the possibility of even a short adjournment to allow the lawyer to provide both the review officer and the former client with a copy of the retainer agreement.

An adjournment to another date may not have been appropriate, given the relatively small size of the lawyer ’ s claim and the fact that the client had already appeared on the date set for hearing. However, one of the possibilities the review officer failed to explore was whether a short adjournment of only a few minutes might have been possible to allow the lawyer to fax up to the review officer a copy of the retainer agreement and to have photocopied the retainer agreement for the former client.

A short adjournment would presumably not have cost the former client much prejudice, or indeed any irreparable prejudice, but could have provided to the review officer the basic tools he needed to determine if the lawyer ’ s account was reasonable. 3.

Conclusion [ 23 ] In the result, the appeal is allowed. [ 24 ] However, this is not a matter in which the court can substitute its decision for the decision of the review officer: the hearing before the review officer was truncated as a result of the lawyer ’ s failure to file the retainer agreement. [ 25 ] A review officer may well have issues of reasonableness to explore with the lawyer once the appropriate materials are filed.

The matter is therefore returned to the review officer to consider whether, in light of the retainer agreement which the lawyer will be required to file in compliance with Rule 10.14, the lawyer ’ s statement of account was reasonable. [ 26 ] Given the time that has passed since the hearing before the review officer, and given the fact that the review hearing was held by CCTV, it is probably just as efficient to anticipate a new hearing before a new hearing officer rather than to attempt to return the matter to the Red Deer hearing officer.

4. Costs [ 27 ] In the ordinary way, the winner of an application is entitled to be paid costs by the loser on the application. In the ordinary way, therefore, because the lawyer has been successful on this appeal in obtaining a new hearing with respect to the reasonableness of her account, the client should pay costs of the appeal hearing to the lawyer.

However, in this case I have concluded that it is more fair if the successful lawyer pays costs to the unsuccessful lawyer. [ 28 ] Interestingly, the lawyer herself notes that the Information Note which follows foundational rule 1.5 indicates that “ The Court may also consider a contravention of the rules, non-compliance or irregularity in making a costs award under rule 10.33(2). ” I have concluded that the lawyer ’ s contravention of Rule 10.14 is a sufficient basis on which not only to deny her costs but also to require her to pay her former client a total of $300.00 in costs for his appearances before the review officer and on this appeal.

Heard on the 22 nd day of February, 2013. Dated at the City of Calgary, Alberta this 15 th day of March, 2013. J.B. Veit J.C.Q.B.A. Appearances: Jeffrey D. Wise, Q.C., Wise Scheible Barkauskas for the Appellant, Ms. Hildebrand Mr. Moore, Respondent on his own behalf

Schedule A

Ruling REVIEW OFFICER: Okay, I understand what you are saying. I am not the Law Society, I am the review officer. There is a rule that you have not read, I am afraid, and it is going to be the basis of my decision. And it is rule 10.14 of our Rules of Court and it says that:

(1) If a lawyer is served with notice of an appointment for review of the lawyer ’ s charges or retainer agreement, or both, the lawyer must file a copy of the account, appropriately signed, in respect of which the client seeks a review, and any retainer agreement - - So that is obviously relevant here because there has been a retainer agreement. - - whether or not the lawyer intends to rely on them.

(2) The documents must be filed 5 days or more before the appointment date or within any other period specified by a review officer, and the review officer may vary the period before or after the time limit has passed. So I should have had those documents at least five days ago.

(3) If the lawyer does not comply with this rule, the lawyer forfeits the right to payment of the lawyer ’ s charges in any account that is the subject of a review unless the review officer otherwise directs. I do not so direct. I direct that you forfeit the account and I direct that this review is accordingly decided and that the funds that Mr. Moore has paid you are, in my opinion, to be returned. You have - - subject to an appeal, of course. I will be noting this on my certificate. It will be returned to Calgary in about five to six days. Okay. I think that basically resolves everything. Any questions? MR.

MOORE: No, Sir. MS. HILDEBRAND: No questions, Sir. REVIEW OFFICER: Okay. Thank you very much.

MS. HILDEBRAND: Thank you, Sir.