Equitable Trust Company v Doxi, 2013 ABQB 406

Court of Queen ’ s Bench of Alberta Citation: Equitable Trust Company v Doxi, 2013 ABQB 406 Date: 20130717 Docket: 1103 16521 Registry: Edmonton Between: The Equitable Trust Company Plaintiff - and - Jennifer Doxi Defendant _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice R.P. Marceau _________________________________________ ______________ Introduction [ 1 ] This is an appeal from the Review Officer’s decision to reduce certain fees and disbursements claimed by the Plaintiff on its Bill of Costs on a residential foreclosure action.

Standard of Review [ 2 ] The latest statement on the standard of review is set out at para. 38 of Tilleman J.’s decision in Repchuk v Silverberg , 2013 ABQB 305 :

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 Ross 2]; 2. erring in principle (law), which will be shown if a party can demonstrate that the review officer proceeded on an erroneous principle,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 & Coat 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 PetroleumLtd v.

Code Hunter, 2002 ABQB 158 at para 16, 112 ACWS (3d) 225, MacKimmie Matthews v. Hector (1998), 1998 ABCA 278, 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. Alberta SecuritiesCommission, 2008 ABCA 184 at para 30, 437 AR 55 [Anderson ]. Decision of Review Officer [3] The Review Officer reduced the Plaintiff’s Bill of Costs on the foreclosure in several areas. [4] First, the Plaintiff claims fees of $1,485.50 for sale of the property.

The Review Officer referenced AGF Trustco v Soos,2012 ABQB 747 where at para. 14 Master Smart wrote: This is particularly so as a foreclosure conveyance is covered by the virtually mandatory

Schedule A which makes it clear the property issold “as is” with no representations and warranties of any kind whatsoever and no requirement for other documentation like RPR’s andcompliance certificates. Essentially all that need be tendered is the Order along with the appropriate trust letter and a statement ofadjustments. Furthermore, the “minefield” of potential liability simply doesn’t exist. Regardless, the amount generally allowed inEdmonton is $250 to $350 for fees. In light of the correspondence with the previous owners counsel and the need to tender documentstwice, I would allow the upper end of $350.

I see nothing remarkable or significant that would warrant an overall increase in fees per se. [5] Following that guideline, the Review Officer reduced the fees from $1,485.50 to the upper end as per the Soos case of$350.00. Actually, Mr. Maggisano, at the hearing before the Review Officer stated “we’re going to reduce the sale of subject propertyfrom $1,485.00 to $350.00.” The Plaintiff cannot now complain of this reduction. [6] Secondly, the fees to the Order Nisi were reduced from $3,225.00 to $2,300.00.

It is not clear why the Review Officerreduced that fee but in context it was apparent she simply took the position $2,300.00 was a usual fee to that point and there was nothingso unusual as to warrant the significant increase in the usual fee. As stated by Master Smart in the Soos, the work is not particularlydifficult as 95 per cent of it can be handled by paralegals and no expertise beyond that of a three-year associate is necessary.

I will extendcurial deference to the Review Officer’s decision on this point. [7] The third reduction was a reduction from $2,150.00 to $1,840.00, a $310.00 reduction for the item “to order for sale andvesting title”. My comments with respect to the Order Nisi apply and I will not interfere with a review officer’s conclusion. [8] Fourthly, there were two claims for inspection fees during the foreclosure totalling $945.00. Plaintiff’s counsel stated thesefees were for inspection which during the winter might be as often as weekly because of the danger of a freeze up.

Counsel for theDefendant pointed out that the Defendant was in possession right up to and actually a few days after the Order for Vacant Possessiontook effect. At all times the Defendant had equity in the property and was trying to sell the property on her own to maximize the return toher. There was no preservation order. The Review Officer reduced the inspection fees to $200.00 in total.

It seems to me that a couple ofinspections should have satisfied the inspector that the Defendant was indeed in the home, was ensuring the utilities were not beingdisconnected and thereafter, much less frequent inspections would have been necessary. I agree that the inspection fees were out of lineand show curial deference to the Review Officer as to the amount. [9] The complaint against the Review Officer’s decision is basically what Tilleman J. in Repchuk v. Silverberg referred to as anerror in principle because the award is so low it betrays an error of principle.

I do not believe the reduction can be said to set the fees solow as to be an error in principle. [10] The appeal is denied with costs which I fix at $350.00 plus reasonable disbursements if any.

Heard on the 12 th day of July, 2013. Dated at the City of Edmonton, Alberta this 16 th day of July, 2013. R.P. Marceau J.C.Q.B.A. Appearances: Nicholas Maggisano, Vickers Hendrix LLP for the Plaintiff Benjamin J. Block, Hillenbrand & Kozicki LLP for the Defendant