Repchuk v Silverberg, 2013 ABQB 305

Court of Queen ’ s Bench of Alberta Citation: Repchuk v Silverberg, 2013 ABQB 305 Date: 20130604 Dockets: 1201 02949, 1201 03471 Registry: Calgary Between: Docket: 1201 02949 Tracy Natalia Repchuk (also known as Tracy Natalia Mierzewski) Appellant - and - Christine E. Silverberg Respondent and Between: Docket: 1201 03471 Shellette Lesley Scheidt (also known as Shellette Lesley Heins and Shellette Lesley Shields) Appellant - and - Christine E. Silverberg Respondent _______________________________________________________

Memorandum of Decision of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Appeal from the Decisions by Mr. J. Morin, Review Officer Dated the 24 th day of July, 2012 (Docket: 1201 02949) Dated the 25 th day of July, 2012 (Docket: 1201 03471) Introduction [ 1 ] These are two appeals from a Review Officer ’ s assessment of two lawyer accounts.

The appeals were ordered to be heard separately, but back to back. [ 2 ] The files are remarkably similar: the review decisions were issued in short succession, the lawyer is the same in both accounts reviewed and the pleadings and argument virtually mirror each other. As time constraints loomed, both appeals were heard concurrently. [ 3 ] The clients in these appeals are Tracy Repchuk and Shellette Scheidt. Both faced high conflict family law disputes. Previously, both retained other lawyers for their family cases prior to retaining Christine Silverberg through Christine E.

Silverberg Professional Corporation to act as their counsel. [ 4 ] Ms. Silverberg ’ s unique background offers an explanation for why both clients were attracted to her legal services. Ms. Silverberg, before changing her career path, was once Chief of the Calgary Police Service. Since then, she has attended law school and was called to the bar in 2005. [ 5 ] That the clients desired, and could put confidence in, a lawyer with Ms. Silverberg ’ s background, is understandable.

The underlying files included complaints about the beheading of a goat, breaking of locks, low flying planes, abuse by former partners and the alienation of children (specific reference of these complaints to each file has been intentionally omitted). Unfortunately, their cases reflect unenviable family law disputes. [ 6 ] There is little point in expanding on the underlying merits of the clients ’ files and, out of respect for the parties, only limited details will be committed to these reasons. Although it is clear Ms. Repchuk and Ms.

Scheidt are acquainted with each other and have shared litigation resources in similar appeals against Ms. Silverberg, it is unclear and irrelevant when or how they became acquainted with each other. History of the files [ 7 ] Ms. Scheidt came to Ms. Silverberg on June 8, 2010. Shortly thereafter, Ms. Silverberg took carriage of Ms. Scheidt ’ s family law matter. On December 23, 2011, Ms. Silverberg filed a Notice of Withdrawal.

[ 8 ] There were relatively few payments on Ms. Scheidt ’ s behalf to Ms. Silverberg through the life of their retainer. $20,000 was paid to Ms. Silverberg in July, 2010, $50,000 on November 12, 2010 and $4,326.22 on November 15, 2011. By the date of the review, Ms. Silverberg claimed total lifetime billings consisting of fees amounting to $309,430, “ costs ” and disbursements amounting to $42,834.64 and GST of $17,597.69. At the review hearing, Ms. Silverberg reduced her claim to $293,402.31 (from $329,984.20). The balance claimed by Ms.

Silverberg as of February 29, 2012 ($329,984.20), combined with payments made on the account, meant lifetime billings of $404,310.42 prior to the reduction. [ 9 ] Ms. Repchuk retained Ms. Silverberg on January 8, 2010. Their relationship continued until March 1, 2012, when Ms. Silverberg filed a Notice of Withdrawal. [ 10 ] On Ms. Repchuk ’ s file, Ms. Silverberg billed a total of $325,031.37, consisting of fees in the amount of $276,969.25 and “ costs, ” disbursements and GST amounting to $48,062.12. Unlike Ms. Scheidt, Ms. Repchuk generally kept her account with Ms.

Silverberg current, but by the time the review hearing came about, Ms. Silverberg claimed arrears of $35,451.37. Procedural history before the Review Officer [ 11 ] Each file has a lengthy procedural history. Ms. Silverberg filed forms initiating the review process on March 5, 2012 for Ms. Repchuk ’ s file and March 15, 2012 for Ms. Scheidt ’ s file. Ms. Repchuk initiated her own review of Ms. Silverberg ’ s accounts on June 13, 2012 (QB Action Number 1201-07481); by consent, both of Ms.

Repchuk ’ s proceedings were heard together. [ 12 ] Following difficulties with service, the Scheidt matter was heard on June 20, July 17 and July 25, 2012. At the opening of the hearing on June 20, Ms. Scheidt immediately requested an adjournment in order to retain counsel, having apparently been out of town on business for the previous six weeks (Scheidt transcript p 2, ll 16-18, p 4, ll 1-2). Ultimately, Ms. Scheidt acknowledged receipt of the package of materials from Ms.

Silverberg on April 13 (Scheidt transcript p 7, l 16) and indicated she had begun looking for a lawyer to represent her immediately, but her efforts were stifled by her travels (Scheidt transcript p 6, ll 1-15). Ms. Scheidt persisted in asking for a one month adjournment, explaining she had an appointment with a lawyer that afternoon, Ms. Cooney-Burk (Scheidt transcript p 11, ll 37-40, p 36, ll 4-5). [ 13 ] The Review Officer granted a peremptory adjournment to July 17, 2012 so Ms. Scheidt could retain counsel (Scheidt transcript p 34, ll 22-24, p 35, ll 6-7, p 39, ll 10-11).

The review hearing reconvened July 17, 2012 with Ms. Scheidt legally represented by Lyle Wilson (Scheidt transcript p 47, l 8). Unfortunately, the review could not be completed on July 17 and the parties returned on July 25, 2012. The review then proceeded into the evening before the Review Officer took a break to review documents, with a decision rendered around 8 PM. [ 14 ] The Repchuk matter did not experience the same service or logistical difficulties. It was heard on July 24, 2012 and, following a lengthy hearing, the Review Officer rendered a decision later that day.

Procedural history before this Court [ 15 ] A Notice of Appeal was filed by each client on August 23, 2012. Each appeal was set to be addressed in front of the presiding Justice in chambers on September 27, 2012. [ 16 ] On September 27, 2012, Justice Horner heard from counsel for Ms. Scheidt, Docken & Company, who had been retained the day prior (Scheidt transcript of September 27, 2012, p 1, ll 34-35). Having heard Ms. Silverberg ’ s additional concerns (Scheidt transcript of September 27, 2012, p 6, ll 6-8), Justice Horner ordered Ms.

Scheidt to complete the record for appeal by filing a transcript of the review hearing. The appeal was to be heard in special chambers on an expedited basis, be on the record and be without viva voce evidence, in accordance with Alberta Rules of Court , Alta Reg 124/2010 r 10.26(2) [ Rules ]. Justice Horner reasonably expected both lawyers to attend at the clerk ’ s office, saying (Scheidt transcript of September 27, 2012, p 14, ll 5-7):

Obviously, Ms. Johnston and Ms. Silverberg, you should attend at the Clerk ’ s Office now to get those dates, but I leave that up to you. Okay? [ 17 ] The court records reveal the Repchuk matter was adjourned sine die on September 27, 2012. [ 18 ] The Scheidt matter came before me on October 19, 2012. Somehow, I also received the box for the Repchuk file. Expecting to hear the merits of both appeals that day, I familiarized myself with the significant amount of materials in the court files. A day before the hearing, on October 18, 2012, a flurry of communication came from Counsel, with counsel for Ms.

Scheidt requesting an adjournment, writing: I am writing to ask that this matter be adjourned. This date was not confirmed. Our client is out of the country and we do not have instructions to proceed with the Application tomorrow. [ 19 ] The Court convened on October 19, 2012. Fortunately, despite only Ms. Scheidt ’ s matter having been scheduled for that date, Ms. Repchuk had also retained Docken & Company. Given Ms.

Scheidt ’ s counsel was unprepared to go ahead on October 19, 2012, and out of an abundance of caution, I adjourned the matter to February 22, 2013, and set it to be heard back to back with the Repchuk matter, which was also adjourned to the same date. That date was set peremptorily against the appellants, with an expectation that no further adjournment would be granted. I remained seized of the matter. [ 20 ] On February 20, 2013, an adjournment request came from Christian Ouellette, who both appellants retained as new counsel on February 13, 2013.

The parties appeared before me on February 22, 2013 with both clients seeking an adjournment, claiming Docken & Company failed to adequately prosecute or prepare for their appeals (it should be made abundantly clear that these allegations were never tested or proven in any manner). Notwithstanding the date had been set peremptorily, a further adjournment was granted out of an abundance of caution. I offered to unseize myself, but the parties asked that I hear the matter. Counsel agreed that given the similarity of the files only one half day should be required.

Thus, I remained seized of the matters and made the further adjournment once again peremptory against the appellants for my first available half day (transcript of February 22, 2013, p 87, ll 15-16). To facilitate efficient oral argument, I allowed written argument in addition to that filed earlier. [ 21 ] On April 16, 2013, my

schedule changed and time became available on April 22, 2013. On April 18, I received a letter indicating that Ms. Scheidt was out of the country until May 22, 2013, and therefore both her and Mr. Ouellette were unavailable. Counsel appeared before me later that day and Mr. Ouellette properly acknowledged there would be “ absolutely nothing unfair ” about proceeding on April 22, 2013. Counsel for Ms. Silverberg suggested that Ms. Scheidt be permitted to listen to the proceedings by teleconference. [ 22 ] April 22, 2013 arrived and the hearing proceeded as expected.

The Court, despite numerous attempts, was unable to reach Ms. Scheidt for the teleconference. Substantive history [ 23 ] In the Repchuk matter, the transcript of the review hearing amounts to 146 pages while the transcript in the Scheidt matter is 211 pages. [ 24 ] Through the course of the review hearings, both clients made numerous submissions. Their submissions included: 1. Ms.

Silverberg ’ s hourly rate, at $500 per hour, was excessive given her relatively junior status as a lawyer and her limited experience with family law (Repchuk transcript p 30, ll 6-8, p 37, ll 28-29, p 55, ll 14-16, p 113, ll 20-22; Scheidt transcript p 124, ll 14- 16, p 157, ll 13-18);

2. Ms. Silverberg ’ s 10% charge, on top of fees, for “ costs ” was excessive, especially given her high fee (Repchuk transcript p 109, ll 37-38, p 110, ll 23-24; Scheidt transcript p 158, ll 7-12, p 186, ll 39-41); 3. Ms. Silverberg ’ s 10% charge for “ costs ” includes the work of all non-legal staff along with law students (Repchuk transcript p 110, ll 17-18; Scheidt transcript p 38, ll 33-35, p 99, ll 1-6, p 126, ll 28-30, p 127, ll 21-22, 27-29, p 157, ll 27-38); 4. Ms.

Silverberg failed to achieve the results desired (Repchuk transcript p 110, 40-41, p 134, ll 29-30; Scheidt transcript p 23, ll 34-39, p 153, ll 36-38, p 195, ll 16-20); 5. Ms. Silverberg relied on Ms. Repchuk ’ s previous lawyer to instruct her on family law, which Ms. Silverberg should have known, with Ms. Repchuk paying for both Ms. Silverberg ’ s and her previous counsel ’ s time (Repchuk transcript p 37, ll 19-26, p 49, ll 4-10); 6. Ms. Silverberg double billed by billing both her and a students ’ time when giving the student instructions (Scheidt transcript p 158, ll 34-37); 7. Ms.

Silverberg failed to take adequate steps at the start of each client ’ s retainer, complicating their conflicts and causing protracted litigation (Repchuk transcript p 83, ll 1-3, p 102, ll 14-18, p 112, ll 7, 19-22, p 113, ll 26-29; Scheidt transcript p 92, ll 13-14, p 93, ll 12-32, p 94, ll 20-24, p 130, ll 5-7, p 148, ll 27-28, p 159, ll 3-7, p 197, ll 25-26); 8. Ms.

Silverberg failed to follow instructions and acted without instructions (Repchuk transcript p 25, ll 28-30; Scheidt transcript p 28, ll 26-33, p 93, ll 12-32, p 96, ll 28-32, p 104, ll 24-25, 30-31, p 109, l 26, p 155, ll 6-7, 11-12, p 197, ll 18-26); 9. Ms. Silverberg failed to meet the standard required of a lawyer/was negligent in delivering legal services (this theme continued throughout the transcripts, e.g., Repchuk transcript p 83, ll 1-3, p 112, l 7; Scheidt transcript p 29, ll 17-18, p 151, ll 25-29, p 159, ll 3-7); 10. Ms. Silverberg forced Ms.

Scheidt to sign a false statement (Scheidt transcript pp 132-134); 11. Ms. Silverberg failed to take adequate care of trust funds held on Ms. Scheidt ’ s behalf, releasing funds prematurely to her client ’ s detriment (Scheidt transcript p 153, ll 25-38, p 156, ll 19-20); 12. Ms. Silverberg failed to wear her hearing aids on numerous occasions, and was unable to hear parts of proceedings and respond in a timely manner (Scheidt transcript p 156, ll 22-24); and 13.

The review process failed to give sufficient time for a detailed review of the accounts (Scheidt transcript p 158, ll 14-15). [ 25 ] Both parties claimed significant fees could have been avoided by, to use the words of Ms. Repchuk, “ meeting the bull head on ” (Repchuk transcript p 112, l 7). Ms. Scheidt argued that Ms.

Silverberg promoted litigation (Scheidt transcript p 29, ll 17-18), but also failed to appeal an order of May 18, 2010, which she viewed as the source of the majority of her difficulties in the file (Scheidt transcript p 21, ll 16-21, p 88, ll 14-15, p 93, l 12, p 94, ll 8-10, p 97, ll 37-38, p 130, ll 5-7, p 151, l 2, p 197, ll 9-11, 25-26). [ 26 ] For her part, Ms. Silverberg argued that both clients had very difficult files. She said they were both very demanding clients, who would require responses from their lawyer on very short notice. Ms.

Repchuk, it was argued, was a very detail oriented client, amplifying the cost to provide services. Ms. Scheidt, Ms. Silverberg said, had a habit of sending a series of short and incomplete text messages which, between

interpretation, clarification, and response, would rack up billable time.

[ 27 ] Silverberg argued she warned both clients at the outset that a failure to manage the process and seek to resolve outstanding matters would result in very significant fees. Specifically, Ms. Silverberg said she advised Ms. Repchuk that her matter could cost between $250,000 and $350,000 and Ms. Scheidt that her matter could cost between $250,000 and $500,000 (Repchuk transcript p 13, l 28; Scheidt transcript p 12, ll 23-27). [ 28 ] While the clients disagree, Ms.

Silverberg claimed she achieved significant success on both files, within the context of the very difficult situations in which the clients found themselves. Ms. Silverberg observed that she kept Ms. Scheidt out of contempt of court (Scheidt transcript p 8, ll 34-36, p 16, ll 21-22, 26-27, p 23, ll 12-13, p 58, ll 14-21, p 64, ll 18-19, p 176, ll 14-15, p 182, ll 29-32). [ 29 ] In making his decision, the Review Officer observed that he is unable to deal with many of the issues relating to negligence (Repchuk transcript p 139, ll 6-17; Scheidt transcript p 205, l 4).

The Review Officer addressed enumerated items 1 through 6, while items 7 through 12 generally fell outside the Review Officer ’ s jurisdiction. Of course, remarks relevant to both “ groups ” of arguments are not isolated - for example, results could be poor because a lawyer was negligent. Item 13, relating to the fairness of the review proceedings, is shown by the procedures adopted by the Review Officer, and reviewable by this Court. [ 30 ] The Review Officer granted significant reductions : $48,754.87 (15% of lifetime billings) for Ms. Repchuk ’ s account and $100,000 for Ms.

Scheidt ’ s account (Repchuk transcript p 144, ll 13-15; Scheidt transcript p 209, ll 17-19). Positions of the parties on appeal to the Court of Queen ’ s Bench Clients [ 31 ] Multiple documents give insight into the concerns the clients wish for this Court to address. In their briefs of argument, both filed August 23, 2012, the clients substantially reargue their submissions before the Review Officer. In the first written submissions of counsel who acted for the clients at the hearing before me, issues raised were: A. Did Ms.

Silverberg bill the client in accordance with the terms of her retainer agreement with the client? a. Is the “ (Direct) Costs ” billing of 10% enforceable under the retainer agreement? b. Is any billing of secretaries or paralegals enforceable under the retainer agreement? B. Was Ms. Silverberg entitled to bill the client $500 per hour given her limited experience in family law and litigation generally? a. Does Ms. Silverberg have the requisite experience in family law to bill at $500 per hour in that field? b. Does Ms.

Silverberg ’ s experience as a Calgary city police officer somehow add to her competence as a lawyer and supplant any lack of experience and expertise in her capacity of counsel? C. Were there any specific invoice issues which, prima facie , ought to invite review (and possible reduction) by the court? D. Was the review process sufficient in its scope and depth to satisfy the threshold requirements of that process regarding the review of this account? a.

If the answer to “ D ” above is no, should the court direct that the review assessment be sent back for a review de novo , or, in the alternative, be reviewed de novo by the court. [sic] [ 32 ] In oral argument and further written argument, the concerns above were elaborated and expanded upon. Counsel for the

clients suggested that there was no backward limit to the review of lawyer accounts and asked this Court to make further reductions tothe accounts allowed or, in the alternative, direct a de novo hearing with fresh evidence on the issues of Ms. Silverberg’s $500 hourly rateand “specific invoice issues” where it is urged there is “obvious account padding”. Additionally, counsel for the clients raised concernsthat the Review Officer failed to deal with all the lawyer’s accounts and, specifically, failed to consider the submissions of the parties. Silverberg [33] Ms.

Silverberg points to the deferential standard afforded to review officers and argues that the primary question on appeal iswhether the Review Officer made an error of principle. Ms. Silverberg argues that the parties were required to put their best case beforethe Review Officer and are not entitled to reargue their case.

She submits that the Review Officer’s award should be entitled to curialdeference because he gave adequate time for submissions, fully considered the positions of each party, and weighed the relevant factorsbefore coming to a decision. [34] With regard to the suggestion that the Review Officer interpreted, or failed to interpret, the costs clause of the retaineragreement, Ms. Silverberg argued in her final written submissions: [T]he Lawyer submits that the Costs and Expenses (Other Charges) were not outside the retainer agreement, the Review Officer did notinterpret and had no need to refer the matter of

interpretation, and he correctly considered the reasonableness of the retainer agreementand the reasonableness of the lawyer’s charges in that context. ... At no time did the Review Officer face a need to resolve any question about the retainer agreement that would require a court reference. [Emphasis in original.] [35] Accordingly, Ms. Silverberg argues that the Review Officer’s decision should be upheld and entered as a judgment of thisCourt.

She asks for costs of the appeal and interest against each client in accordance with the Judgment Interest Act, RSA 2000, c J-1 ss4(2)-(3), 6(2) [Judgment Interest Act]. [36] Finally, despite the significant reductions in her accounts, Ms. Silverberg has not filed a cross-appeal. Issues [37] At the end of the day, the clients believe Ms. Silverberg was negligent - and they have indicated their intention to sue forsuch negligence.

The Review Officer properly acknowledged his inability to deal with allegations of professional negligence and fraud. [38] A review officer may fall into error in at least the following ways: 1. erring in fact, for which a party must demonstrate that the fact as found is “clearly in error”: Sweetgrass First Nation v Rath &Company, 2013 ABQB 165 at para 27 [Rath & Co], FMC v Kristof Financial Inc, 2012 ABQB 359 at para 17, 215 ACWS (3d) 1010[FMC], McLennan Ross v Keen Industries Ltd (No 2) (1988), 1988 ABCA 224 , 86 AR 311 at para 7 (CA) [McLennan Ross2]; 2. erring in principle (law), which will be shown if a party can demonstrate that the review officer proceeded on an erroneousprinciple, failed to apply a required principle or that the award of the review officer is so high or low as to betray an error of principle:Rath & Co at para 27, McLennan Ross 2 at paras 6, 13; 3. erring in true questions of jurisdiction (law), for which a standard of correctness will apply: Rath & Co at para 20, Panther

Petroleum Ltd v Code Hunter, 2002 ABQB 158 at para 16, 112 ACWS (3d) 225, MacKimmie Matthews v Hector (1998), 1998 ABCA278 , 219 AR 163 at para 7 (CA); and 4. failing to provide a hearing that is procedurally fair, for which a standard of correctness will apply: Anderson v AlbertaSecurities Commission, 2008 ABCA 184 at para 30, 437 AR 55 [Anderson]. [39] First, there was no complaint that the Review Officer misapprehended facts. [40] Second, as to a new hearing before me, an appeal from a review officer is not a trial de novo of the lawyer’s accounts: Rath& Co at para 26.

As Justice Yamauchi aptly stated in FMC at para 18, “the parties must put forward their ‘best case’ to the reviewofficer; not to the court hearing the appeal.” This hearing is limited to reviewing the Review Officer’s exercise of authority. [41] Having parsed the various submissions of the parties, this Court will address the following questions: 1.

Whether the Review Officer erred in failing to provide a fair hearing by: a. failing to give the parties adequate time for their submissions; b. failing to review all of the lawyer’s accounts and consider the submissions of the parties; or c. failing to give adequate reasons for his decision. 2. Whether the Review Officer erred in jurisdiction by interpreting, or failing to interpret, the “costs” clause in the retaineragreement. 3.

Whether the Review Officer erred in principle by: a. failing to apply a necessary factor or applying one or more incorrect factors in assessing quantum; b. awarding an inordinately high or low sum; or c. failing to apply Rule 10.10.

Analysis and application Whether the Review Officer erred in failing to provide a fair hearing [42] A review officer adjudicates the “rights, privileges or interests of an individual” not in a legislative context and owes at leastsome duty of procedural fairness to the parties in a review hearing: Cardinal v Director of Kent Institution, (SCC),[1985] 2 SCR 643 at 653; see also Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police,

(SCC), [1979] 1 SCR 311 at 324 and Canada (Attorney General) v Mavi, 2011 SCC 30 at para 38, [2011] 2 SCR 504. [43] The true question is not whether the procedure must be fair, but what must be done so that the procedure is fair in the contextof review proceedings. Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817[Baker] is the seminal case in this regard. A review of the factors in Baker indicates that while review proceedings are important, theywill not attract the most stringent of procedural protections.

Baker at para 22 is a reminder to: ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory,institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully andhave them considered by the decision-maker. [44] Review hearings are meant to be an expedited process which confirms for clients the reasonableness of fees and for lawyersallows expedited collection of unpaid accounts: Twinn v Sawridge Band, 2012 ABQB 44 at paras 36-37, 531 AR 158 [Twinn].

While itis important that decisions be fair, and efficienct, finality also play a significant role in advancing the goals of review proceedings. Thecontent of the duty of fairness will also reflect the reality that, because of the nature of review proceedings, additional proceduralprotections are squared up against decisions made in a necessarily subjective area. [45] Ensuring a minimum standard of procedural fairness is reviewable on a correctness standard: Anderson at para 30.

Whether the Review Officer erred by failing to give the parties adequate time for their submissions [46] It is important that a person whose case is decided by a review officer has “a meaningful opportunity to present their casefully and fairly”: Baker at para 30. From the record, it almost seems the clients were unprepared for the review proceedings.Nevertheless, despite the disorganization, each client was able to finish their submissions, notwithstanding that in Ms.

Scheidt’s case sheargued she hadn’t received sufficient time to do so (Scheidt transcript p 158, ll 14-15). [47] At no point did the Review Officer cut either client off. The Scheidt hearing spanned across three days with the ReviewOfficer delivering his award in the evening of the final day. In the Repchuk matter, Ms.

Repchuk’s lawyer at the review hearingcommented, 54 pages before the end of the 146 page transcript, “I don’t think there’s much left, in terms of the significant issues”(Repchuk transcript p 92, ll 18-19). [48] Once the parties have laid out the facts and made their points, further repetition and elaboration on stated positions will notenhance fairness, but only increase cost, and delay resolution.

In Boshra v Canada (Attorney General), 2011 FC 1128, 398 FTR 60, theFederal Court determined that a 10 page restriction on arguments submitted to the Canadian Human Rights Commission was acceptable,even though the limit cut off a letter the Applicant desired to submit. [49] While the Review Officer encouraged the clients to be careful with their use of time, he held long hearings to ensure eachclient had the opportunity to present their case. The Review Officer placed no hard limit on the time for submissions. The records showsthat the extensive argument before the Review Officer simply began to repeat itself.

It is telling that, on appeal, counsel did not point toany submission that either client might have made, but was unable to make because of a restriction on submissions. [50] In both cases the clients were afforded an adequate opportunity to present their case. Whether the Review Officer erred by failing to review all of the lawyer’s accounts and consider the submissions of the parties [51] There is no point to requiring adequate time for submissions if the decision maker has no obligation to consider them.

Areview officer must consider the submissions of the parties at a review hearing: Carr & Co v Markdale Ltd (1996),

(AB KB), 197 AR 6 at para 17 (QB). [52] The Review Officer’s reasons, discussed below, reveal that he was alert to the submissions of the parties and considered thosesubmissions in arriving at a decision. In reviewing the accounts, the Review Officer need not go line by line through 13 boxes in theRepchuk matter and 10 boxes in the Scheidt matter (Repchuk transcript p 13, l 13; Scheidt transcript p 10, ll 13-14) - this would defeatthe purposes of the review procedure. The parties drew his attention to the relevant matters and it is clear he became familiar with theaccounts in issue and the problems presented.

Whether the Review Officer erred by failing to give adequate reasons for his decision [53] Where reasons are required, they should demonstrate “justification, transparency and intelligibility” in the decision-makingprocess: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 1,[2011] 3 SCR 708 [Newfoundland and Labrador Nurses’ Union]. [54] A review officer is an expert decision maker and is presumed to know the principles applicable to a review proceeding.Therefore, a review officer’s reasons need not be extensive.

In Brown v Snyder & Associates, 2004 ABQB 899 at para 25, 364 AR 266,Acton J stated: [T]he case law is clear that taxing officers are not required to give extensive reasons... . While a complete lack of reasons may begrounds to refer a matter back to the taxing officer, as found in Penonzek v.

Cerra, 2001 ABQB 271, any deficiencies in the articulationof the Taxing Officer’s reasons in this case are not a sufficient basis for me to interfere with his decision. [Citations omitted.] [55] Because of their nature, review awards are perhaps subject to the appearance of arbitrariness, although they may not actuallybe arbitrary or unfair.

The British Columbia Court of Appeal in Pamela S Boles Law Corp v Mathisen (1998), 19 CPC (4th) 78 at para22, 79 ACWS (3d) 168 accepted “an element of arbitrariness” in the reviewed account because reviewing a lawyer’s bill “is anassessment, not merely a mathematical exercise.” [56] In McLennan Ross v Keen Industries Ltd (1987), 1987 ABCA 174 , 83 AR 322 at paras 5-6 (CA) [McLennan Ross1], the Alberta Court of Appeal confirmed the reasons of a taxing officer were adequate where they were “several pages in length” butexpressed all relevant factors and made findings of fact on disputed points.

The Court said there is no need for a precise articulation toshow the balancing of the relevant factors. [57] With reference to Newfoundland and Labrador Nurses’ Union, the Alberta Court of Appeal recently wrote about theadequacy of reasons in Lameman v Alberta, 2013 ABCA 148 at para 57: In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 12, [2011] 3 SCR708, the Supreme Court of Canada stated that a reviewing court is entitled to consider what reasons a decision-maker could have given.So long as her reasoning path is evident, her reasons are adequate to inform the litigant and are capable of adequate appellate review:para 16.

See also R v REM, 2008 SCC 51 at paras 24-25, [2008] 3 SCR 3. [58] Attention should also be drawn to Newfoundland and Labrador Nurses’ Union at para 12, where the Supreme Court ofCanada emphasizes that, before finding reasons inadequate, the Court should seek to supplement reasons with those reasons which couldhave been offered in support of a decision. [59] Given the breadth of the accounts, the Review Officer issued oral reasons. The reasons demonstrate an understanding of theissues and the law to be applied.

Combined with the record before the Review Officer, they are in my view sufficient to demonstrate hisreasoning. While it is impossible to determine to what degree each factor precisely impacted his analysis, this is not required and it isclear that the Review Officer appreciated the dynamics of each file and concerns of the clients. The reasons justify the decision, givetransparency to the process and demonstrate decision making that resulted in large deductions in favour of the appellants.

Whether the Review Officer erred in jurisdiction by interpreting, or failing to interpret, the retainer agreement [ 60 ] The retainer agreement with Ms. Repchuk contains the following wording: (

b) Costs and Expenses The Code of Professional Conduct allows us to recover certain costs and expenses for non-legal services, which are overhead-type expenses. These costs are the direct costs of providing legal services and include file opening and closing; secretarial and paralegal assistance; regular postage; telephone and fax charges; use of electronic legal databases for necessary research; word-processing charges; printing and reproduction costs, including use of other supplies, services and equipment such as scanning.

Our invoices will include an administrative charge of 10% of professional fees in lieu of customary charges for such expenses and will be billed to you in addition to the legal fees and disbursements both as described above. Costs and Expenses will be stated separately on the invoices. [ 61 ] Ms. Scheidt ’ s retainer is the much the same, except that: use of electronic legal databases for necessary research; is replaced by: use of electronic legal databases for necessary [sic] by our firm; [ 62 ] At the review hearings, it was argued that the 10% charge, in particular on top of Ms.

Silverberg ’ s $500 per hour rate, was excessive and unreasonable. Both clients argued that the clause should include the services of articling students, summer law students, and all work done by non-legal staff, for example scanning and sorting of documents in preparation for disclosure to the opposite side (this was, in large part, the reason for which a non-lawyer employee ’ s work was billed to the clients). I must determine whether the Review Officer interpreted this part of the retainer agreement and, in so doing, exceeded his jurisdiction. [ 63 ] Review officers cannot interpret retainer agreements.

I recently determined in Rath & Co at paras 37-38 that: [t]he interplay between rules 10.18(1)(

a) and 10.9 works as follows. First, the retainer agreement must be understood. Either its 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 doubts about the

interpretation, the Court must ascertain its meaning. Thus, when the retainer agreement is properly understood, the review officer may consider if the retainer agreement is reasonable. However, when a review officer faces the need to resolve a “ question arising about the terms of a retainer agreement ” , rule 10.18(1)(

a) requires a court reference. See also the cases cited therein. [ 64 ] The Ontario Court of Appeal has recently confirmed, in Cookish v Paul Lee Associates Professional Corp , 2013 ONCA 278 , (para 20 ) that:

... an assessment officer [the equivalent of a review officer] has no jurisdiction to determine disputes relating to the existence, nature, terms or extent of a retainer agreement where the order is obtained on requisition [a process initiated by the parties]. There are only two exceptions to this proposition: (

i) where there is really no legitimate dispute regarding the retainer; or (ii) where the dispute relates only to the quantum of the bill ... [Emphasis added] This reflects the law in Alberta; where the meaning of a clause in a retainer agreement is clear on its face, there is no legitimate dispute about

interpretation. [ 65 ] It is important to emphasize that the jurisdictional limit which prevents a review officer from interpreting a retainer agreement does not mean that every time a retainer agreement exists the review officer must make a court reference. That is not what the Rules intend and, indeed, would undermine the ability for a review to be a “ faster, less expensive alternative ” to filing a statement of claim: Twinn at para 37 . [ 66 ] As discussed in Rath & Co , a review officer need not refer to this Court a question on the

interpretation of a retainer agreement where the meaning of the retainer agreement is clear on its face or the parties agree on its meaning. [ 67 ] I now turn to the comments made by the Review Officer apropos of this issue. At pp 207-208 of the Scheidt transcript: With respect to the 10 percent costs charge, I am not personally aware of any direction from the law Society; I have never looked into it. This is the first I have heard of it, but they may well have said that 10 percent is acceptable.

But the task of this office is to try to look at the various relevant circumstances and try to I guess adapt the fee to the amount of work done. Ten percent is higher than I see and especially when the hourly rates are significant and it is a lengthy file. These costs just add up very rapidly with there being roughly $31,000 in costs here. With respect to Ms. Fraser -- and it sort of ties into this cost issue again -- Ms. Shields feels that Ms. Fraser ’ s time should be subsumed in the 10 percent and Ms. Silverberg concedes that there may be a paralegal component to Ms.

Fraser ’ s work and she thinks that would be in the neighbourhood of $18,182 and I think in essence is saying that Ms. Shields should not have it both ways; that if there is a disallowance of Ms. Fraser ’ s time being billed separately, then the cost component of the charges should be allowed and vice versa. I struggled somewhat with this I guess both conceptually and in terms of quantification, but I think there should be adjustments of both, the 10 percent -- as I have said I find to be high as an administrative charge -- and the very significant total charges of Ms. Fraser.

Some of the services would clearly be paralegal and arguably captured in the retainer letter and in the paragraph about there not being an additional charge for paralegals. And I think Ms. Shields should be afforded some benefit of the doubt. It is not – the heavier onus should not be on her to interpret the retainer agreement, but it should be clear as to who is being charged at what rate for what purpose; who is captured by the 10 percent admin charge and who is not. [ 68 ] And, at p 142 of the Repchuk transcript: Another factor that – this was a disputed point between the parties, the 10 percent cost fee.

It ’ s clearly in the retainer agreement. It ’ s disclosed. Retainer agreements are to be allowed just to the extent that – that they ’ re fair and reasonable. Ten percent, and I ’ m going by memory, but I don ’ t believe I ’ ve ever seen a 10 percent administrative cost type of fee employed, or any sort of cost fee like that is – is uncommon. The ones I have seen would be numbers – one firm in particular where I ’ ve seen a number of their accounts, it ’ s a fee of 1 ½ percent.

So I think – again I ’ m trying to put this in context when a senior – a senior counsel on the file has a significant hourly rate like $500 an hour, that the fees just add up so quickly, and then 10 percent of that – of that fee (INDISCERNIBLE).

There ’ s a dispute about characterization of some of the party ’ s billing, I guess particularly the summer student and Ms. Fraser. There ’ s some ambiguity in my mind regarding characterization. The retainer letter, as I recall, talks about the – the legal professionals. Certainly I – I know from Ms. Silverberg ’ s perspective from her description that experience and use on the file she viewed Ms. Fraser as somebody outside the category of paralegal for the most part with some concession of her in that regard today – in today ’ s proceedings, and Ms. Repchuk ’ s view is that Ms. Fraser was simply a paralegal.

Again, based on what I ’ ve seen Ms. – Ms. Fraser offers more than, I ’ ll say a more average paralegal in terms of her experience and skills, but I – I don ’ t know that a client should be fully expected to – to appreciate that, so there could have been more clarity in the retainer letter as to – as to how Ms. Fraser fits in. It was disclosed on each account that she was being billed separately. [ 69 ] The 10% charge provision does not require judicial

interpretation. The meaning of the clause is clear: the costs of office equipment, supplies, postage, etc. along with services rendered in the office as an adjunct to the legal services provided on an hourly rate are included in the charge.

The cost of services not performed as an adjunct to the legal services provided on an hourly basis is not addressed by the charge. [ 70 ] Excerpts from both transcripts indicate that the Review Officer performed two tasks in connection with the costs charge: review for reasonableness and application. [ 71 ] In reviewing for reasonableness, the Review Officer agreed with the appellants; he felt the 10% costs charge was too high. That was a reasonable conclusion given the 10% charge amounted to $50 per hour billed by Ms.

Silverberg. [ 72 ] The Review Officer applied the provision by determining whether certain work came within its scope. This is interpreting the work, not the clause. In the Repchuk transcript at p 142, ll 26-33, the Review Officer discusses the characterization of a summer student and Ms. Fraser, more particularly the work they did. With regard to Ms.

Fraser, some of her work fell within the charge while some of it did not. [ 73 ] In the Scheidt matter, the Review Officer notes the distinction between paralegal work covered by the charge and work that is not covered by the charge: Scheidt transcript p 207, ll 38-41: [Regarding] the very significant total charges of Ms. Fraser. Some of the services would clearly be paralegal and arguably captured in the retainer letter and in the paragraph about there not being an additional charge for paralegals. And I think Ms.

Shields should be afforded some benefit of the doubt. [ 74 ] Some work was the type of work caught by the clause, other work was not.

The Review Officer ’ s discusses the wording of the clause in the Scheidt transcript p 208, ll 2-4: It is not – the heavier onus should not be on her to interpret the retainer agreement, but it should be clear as to who is being charged at what rate for what purpose; who is captured by the 10 percent admin charge and who is not. [ 75 ] Here the Review Officer reviewed the retainer agreement for reasonableness, as rule 10.9 requires. [ 76 ] The Review Officer properly took objection to the quantum of charges that would result from such a provision, incorporating that objection into the award granted.

Whether the Review Officer erred in principle [77] The traditional formulation is that an error in principle is proven by directly showing an error in principle or proving that theaward is so high or low as to betray an error of principle: McLennan Ross 2 at paras 6, 13. Accordingly, absent direct evidence on therecord showing that a review officer applied an incorrect principle or was ignorant to a required principle, a review officer will beafforded significant deference.

Did the Review Officer fail to apply a necessary factor or applying one or more incorrect factors in assessing quantum [78] There are a wide variety of factors that a review officer should consider when reviewing a lawyer’s account. Rule 10.2provides direction on the relevant factors to apply, which has been confirmed by the Courts: Rath & Co at para 76, McDonald Crawfordv Morrow, 2004 ABCA 150 at para 11, 348 AR 118.

That rule lists a number of factors including “any other factor that is appropriate toconsider in the circumstances.” Case law and the Law Society of Alberta, Code of Conduct [Code of Conduct] are sources that helpidentify other potentially relevant factors. [79] Factors potentially relevant to an assessment of quantum include: Rule 10.2(1) factors include: the nature, importance and urgency of the matter; 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 which the services are performed; and the skill, work and responsibilityinvolved.

Common law factors include: the difficulty of the matter; the monetary value at stake; the competence of the lawyer; the resultsachieved; the client’s expectations regarding fees; the client’s ability to pay; the solicitor’s bill, which is the solicitor’s conscientiousestimate of the value of the work performed; and an agreement between lawyer and client: Rath & Co at para 77, MacDonald & Freundv Chernetski (1987), (AB KB), 81 AR 142 at paras 21-26, 29-46 (QB), 509703 Alberta Ltd v Witten Binder, 2000ABQB 729 at paras 27-30, McLennan Ross 1 at para 9; Morrison v Pantony (Rod) Professional Corp, 2008 ABCA 145 at para 26, 429AR 259 [Rod Pantony Corp] Code of Conduct r 2.06(1) commentary factors (excluding those already listed) include: the time and effort required and spent; anyspecial skill or service that has been required and provided; fees authorized by statute or regulation; special circumstances; the likelihood,if made known to the client, that acceptance of the retainer will result in the lawyer’s inability to accept other employment; theexperience and ability of the lawyer; any estimate or range of fees given by the lawyer; and the client’s prior consent to the fee. [80] The Review Officer specifically referred to some of the factors he was considering.

He did what he was supposed to do. InMs. Repchuk’s case, he referred to the experience, skill and background of the lawyer (Repchuk transcript p 138, ll 32-35, p 140, ll 28-30), the existence and terms of the retainer agreement (p 139, ll 23-24, p 142, ll 14-18), an estimate of fees said to be given to the client(p 143, ll 8-12), complexity (p 139, ll 25, 34-38), urgency (p 139, l 25, p 139, l 40 to p 140, l 4), importance to the client (p 139, l 25),difficulty of the matter (p 140, ll 6-9), results (p 140, ll 11-24) and the unusual relationship that existed with the client’s previous lawyer(p 141, ll 5-23).

The Review Officer did not exclude the application of any factor, but in certain cases found that a factor had no greatinfluence on his award. With reference to what factors he must consider, the Review Officer acknowledged that the factors “are set out inthe rules of court and the code of conduct and as amplified in – in the various decisions of the court” (p 139, ll 26-27). [81] In Ms.

Scheidt’s case, he referred to results (Scheidt transcript p 205, ll 16-30), value to the client (p 205, ll 32-38), urgency(p 205, ll 40-41), importance to the client (p 206, ll 1-2), the amount of time spent on the file (p 206, ll 4-6), ability to pay (p 206, ll 6-9),the source of funds (or lack thereof) (p 206, ll 11-16), the client’s expectations regarding fees reflected in the agreed-to hourly rate (p206, ll 33-36), the experience and skills of the legal staff involved (p 206, l 36 to p 207, l 18), the difficulty of the matter with regards tothe demands placed on the lawyer by the client (p 208, ll 14-36) and the difficulty of the matter generally (p 208, ll 38-41). [82] The Review Officer considered and applied relevant factors in assessing the quantum to allow on the accounts; I find that theReview Officer properly directed himself on the law he should apply in reviewing the accounts, disclosing no error of principle.

[ 83 ] The clients also argued that “ specific invoice issues ” should invite review. These matters are not conveniently discussed here as they should properly have been raised in front of the Review Officer, and these are not best before this Court on the basis that the Review Officer misapplied a principle, shown in the context of that specific issue. For Ms. Repchuk, those issues involved Ms. Silverberg ’ s time charged for discussions with Ms. Repchuk ’ s previous lawyer along with the charges for that lawyer ’ s time, approximately $18,817 in Ms.

Silverberg ’ s time said to be for a letter regarding parenting, and Ms. Silverberg ’ s time spent making notes and annotations of client materials. [ 84 ] Likewise, Ms. Scheidt raised the “ specific invoice issues ” of Ms. Silverberg billing for 23 hours in one day and billing $27,562 for research into judicial bias and appeals. Again, these matters are properly put before the Review Officer, rather than before this Court. The significant reduction by the Review Officer is indicative that he took concerns about the utility to the client of the work done very seriously.

The 23 hours docketed in one day was raised before the Review Officer (Scheidt transcript p 15, ll 30-31). A review of the lawyer ’ s billings indicates this was a time intensive period and it is entirely possible that an entry recorded to one day reflects work spanning into another day, for example, if Ms. Silverberg worked past midnight. [ 85 ] With regard to the unique relationship between Ms. Silverberg and Ms. Repchuk ’ s previous lawyer, the transcript reveals that the Review Officer was alert to this relationship and considered it when setting the award (Repchuk transcript p 141, ll 5-23).

The time spent on a letter and notes are matters properly raised before the Review Officer and not raised as new arguments before this Court. Yet, and in any case, the Review Officer was well aware of the significant fees on the file and granted a significant reduction on the accounts. [ 86 ] Neither client has been able to show an error of principle or fact with regard to any “ specific invoice issues. ” [ 87 ] In neither case have the clients pointed to the Review Officer ’ s application of an inappropriate factor or failure to consider a factor that should have been applied.

No error of principle has been shown. Whether the Review Officer erred by awarding an inordinately high or low sum [ 88 ] As stated above, the Review Officer granted significant reductions on the accounts -$48,754.87 in the case of Ms. Repchuk and $100,000 in the case of Ms. Scheidt.

The clients argue that, nevertheless, the reductions are inordinately low with the result that the accounts allowed are inordinately high, betraying an error in principle. [ 89 ] In order to determine whether the accounts as allowed by the Review Officer are inordinately high, some reference to the underlying facts is needed - not a re-weighing exercise, but rather, to determine whether the award is so ghastly as to reveal it could not have been arrived at by a reasonable review officer. [ 90 ] Silverberg rendered detailed bills for all accounts.

The Review Officer recognized that the detail provided was quite good (Repchuk transcript p 143, ll 18-40, Scheidt transcript p 208, l 28). [ 91 ] I have reviewed the records. It is clear that Ms. Silverberg had significant experience, but much of that experience was in a policing background and not directly related to family law. On the other hand, the files were complex, high-conflict and demanding. Both files had the involvement of the RCMP. Both clients had urgent requirements and important matters. The results achieved were mixed. [ 92 ] Certainly with regard to Ms. Scheidt, Ms.

Silverberg ought to have known funds were limited, given the accounts that accumulated. Both clients were aware of the fees to be charged and their understanding would soon have been confirmed by Ms. Silverberg ’ s regular issue of accounts. The clients agreed to pay $500 per hour for Ms. Silverberg ’ s service, an important factor, because “ the courts should not set aside agreements between solicitors and clients without good cause ” : Rod Pantony Corp at para 26 . Ms.

Silverberg stated she cautioned the clients during the initial stages of their relationship about the potentially significant fees. [ 93 ] It is clear that, despite the differences between lawyer and client, sizeable work was done on the accounts. Nevertheless, the

clients brought significant and valid concerns about the value of Ms. Silverberg ’ s work and her management of the files. Application of the relevant factors justified a significant reduction in the lawyer ’ s accounts. [ 94 ] Given the competing factors, the significant reductions in the accounts by the Review Officer, and the resulting awards, are reasonable. There are logical paths by which the Review Officer could arrive at the quanta awarded. The large reductions reflect that each client ’ s concerns were viewed with validity and given significant weight.

All of this is to say, the scale of the awards do not betray an error of principle. [ 95 ] Counsel for the clients referred me to Mide-Wilson v Hungerford Tomyn Lawrenson and Nichols , 2013 BCSC 374 [ Hungerford ] , a decision which overturned the review by a registrar of a lawyer ’ s account on the basis that the error in quantum was “ so gross as to indicate an error in principle ” : para 174. Counsel drew attention to para 178, which reads: In order to maintain the integrity of the legal profession, a legal account must have some relationship to the actual work carried out.

To allow the fees awarded in this case given the work the Solicitors actually did would call into question the integrity of the profession. [ 96 ] I agree with Justice Goepel that a “ legal account must have some relationship to the actual work carried out ” : Hungerford at para 178 . In Hungerford , a contingency fee arrangement resulted in an initial billing by the law firm of $17 million dollars.

Here, as the accounts were billed hourly and reduced to reflect their peculiar difficulties, they have “ some relationship to the actual work carried out. ” Whether the Review Officer erred in principle by failing to apply rule 10.10 [ 97 ] Rule 10.10 reads as follows:

(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. [ 98 ] Rule 10.10(1) is clearly inapplicable, but rule 10.10(2) may apply. Justice Browne recently issued a detailed review of the application of the limitation rule in Twinn . At para 40, Justice Browne concludes that the rule applies only to client-initiated reviews and not to lawyer-initiated reviews: I find that Rule 10.10(2) applies only to reviews of lawyers ’ charges initiated by a client, and does not apply to lawyer-initiated reviews.

Therefore, the six month limitation period does not apply to restrict a lawyer-initiated review. [ 99 ] The Scheidt review hearing was lawyer-initiated while the Repchuk review hearing was initiated by both lawyer and client. Does the time bar operate against the client even though the lawyer initiated the review? The question need not be addressed on this appeal for two reasons. First, Ms. Silverberg has not cross-appealed in either case and does not seek relief through rule 10.10, even after the Court drew attention to that rule. Second, with specific reference to the Repchuk matter, Ms.

Silverberg in her final written submissions admits the review of accounts “ from the first interim account dated February, 2010" proceeded by consent. Conclusion [ 100 ] Both appeals are dismissed. Accordingly, under Rule 10.27(1)(a), I confirm the decision of the Review Officer in each appeal. Under Rule 10.20, each decision of the Review Officer is to be entered as a judgment of this Court.

Costs [ 101 ] Costs may be spoken to if necessary. Interest [ 102 ] Ms. Silverberg seeks judgment interest under the Judgment Interest Act . Given the results, she is entitled to that interest. Heard on the 22 nd day of April, 2013. Dated at the City of Calgary, Alberta this 3 rd day of June, 2013. W.A. Tilleman J.C.Q.B.A. Appearances: Christian S. Ouellette for the Appellants Christine E. Silverberg for the Respondent