Home Trust Co. v. MacDonald, 2013 ABQB 450

Court of Queen ’ s Bench of Alberta Citation: Home Trust Co. v. MacDonald, 2013 ABQB 450 Date: 20130809 Docket: 1203 08756 Registry: Edmonton Between: Home Trust Co. Applicant - and - Donna MacDonald Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _________________________________________ ______________ The Appeal [ 1 ] Home Trust appeals the assessment officers decision on the basis that the amount of fees ordered were low considering the work done, and should not have been reduced.

The amounts charged were in accordance with the amounts set out in the existing Calgary Foreclosure Fee Guidelines in Calgary sanctioned and approved by the Masters there. It is submitted that because the assessment officer found that the action was a standard foreclosure action, the standard fees should have applied of $4,255.00. [ 2 ] Additionally fax filing fees were not allowed in the sum of $359.00; and the sale account was reduced from $1,007.70 to $350.00, which was barely enough to cover the disbursements with respect to the sale.

[3] Accordingly the amount should have been set at $4,255.00 for fees; $359.00 for non-taxable disbursements; and $2,554.68for taxable disbursements for a total of $7,509.16 including GST. [4] The taxing officer granted fees of $3,700.00 total. She disallowed all fax filing fees in their entirety because the plaintiffcould have chosen an Edmonton law firm to do the work if it had wanted to, and the defendant should not be required to pay the faxfiling fees.

The process server charges were reduced from $143.00 to $119.00, because the process server was charging $0.70 perkilometer, whereas the hearing office allows $0.50 per kilometer. The taxing officer reduced fees on the sale account from $1,007.70 to$350.00 on the basis of Master Smart’s decision in AGF Trust Company v. Soos, 2012 ABQB 747. The total account granted then was$6,152.83. Background [5] Foreclosure proceedings were begun in May 2011. The applicant obtained an Order for Substitutional Service.

ARedemption Order – Judicial Listings was granted on September 29, 2011 after the defendant appeared at the first court date andrequested a one week adjournment to that date. The Redemption Order expired in March 2012, and the property judicially listed. On May8, the plaintiff appeared in court unsuccessfully to have an offer accepted. In July 2012, an application was made to accept a higher offerbut the court ordered a “final and best offer” blind tender scenario when another offer was received. On July 20, 2012 the court granted afinal Order Vesting Title.

The applicant’s law firm represented the seller on the sale which closed uneventfully on August 28, 2012. Standard of Review Analysis [6] The applicant submits that the standard of review on these matters is found in paragraph 16 and 17 of Fraser MilnerCasgrain LLP v. Kristof Financial Inc., 2012 ABQB 359 which reads: 16 When one reviews the many cases that deal with appeals from decisions of review officers (or taxing officers, as they wereformerly known), there are certain principles that emerge. A review officer’s decision is entitled to curial deference: 509703 at para 11.Why?

A review officer’s “duties commonly call for him to do this type of vetting because of the nature of his position and the expertisethat he gathers in carrying out those duties”: Carr & Co v. Markdale Ltd. (1996), (AB KB), 46 Alta LR (3d) 324 atpara 20 (QB) [“Carr & Company”]. See also McLennan Ross v. Mercantile Bank of Canada (1988), 1988 ABCA 224 , 59Alta LR (2d) 369 at para 6 (CA) [“McLennan Ross”].

The Alberta Court of Appeal in McLennan Ross went on to say that, “the taxingofficer's function is a specialized one and he may have to bring his own experience and expertise to bear” (at para 12). 17 Curial deference, however, is not absolute. A court hearing an appeal from a review officer's decision may interfere if the reviewofficer “operated on a wrong principle and thereby fell into error”: McLennan Ross at para 6, citing Cape Breton Landowners v. StoraKopparbergs Bergslags Aktiebolag (1983), (NS CA), 33 CPC 1, 146 DLR (3d) 369, 58 NSR (2d) 193, 123 APR(NSCA); Petty v.

Bishop & McKenzie (1977), 2 AR 241 at 243 (QB). An error in principle may include a situation where the quantumthat the review officer awards is inordinately high or low: McLennan Ross ibid; 509703 at para 11. Similarly, a court hearing an appealfrom a review officer's decision may interfere if the review officer makes an error concerning the scope of the retainer agreement underwhich the parties are operating: Brown v. Snyder & Associates, 2004 ABQB 899 at para 20 [“Brown”].

Finally, a court hearing anappeal from a review officer’s decision may find that the review officer made a finding of fact that is clearly in error: Carter v. Blake(1982), 41 AR 418 at para 7 (NWTCA) [“Carter”]. [7] A more recent version of the standard of review in these matters can be found at paragraph 38 of Repchuk v. Silverberg,2013 ABQB 305: 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, PantherPetroleum 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]. Conclusion [8] On either standard of review, I reject the argument of the appellant because the assessment officer found this to be a standard

foreclosure, that the law firm was entitled to the standard foreclosure charge in Calgary which amount to $4,255.00 for fees. The standard charge is in fact nothing more than a Guideline, and is not meant to be a minimum charge which can never be reduced below the fixed floor. Otherwise it would be improper, and could constitute illegal price fixing.

Accordingly, I conclude $3,700.00 for fees in this straightforward foreclosure file represents a reasonable reduction from $4,255.00 for a non-contentious matter, which this was. [ 9 ] With respect to the reduction in mileage charges from $0.70 to $0.50 per kilometer, these are imminently reasonable for the reasons given by the assessment officer, and standard government mileage reimbursement rates offered to all federally appointed Judges. [ 10 ] With respect to fax filing fees of $1.00 a page being disallowed, I agree with the assessment officer that the applicant, not the defendant, should bear this cost when they choose to hire out-of-town (in this case Calgary) counsel to deal with local (in this case Edmonton) property. [ 11 ] The largest reduction was with respect to the sale account fees which went from over $1000.00 to $350.00.

I agree with Master Smart’s reasoning in AGF Trust Company v. Soos , at paragraph 14 when he stated: Recently, there was one item identified that was not being addressed the same by all assessment and review officers, at least, in Edmonton. That item was an additional fee for completing the conveyance of a property to a third party under an Order for Sale after Judicial Listing or advertisement in some other fashion. As there was a conveyance in this case there should be an adjustment to the bill. Reflecting back, there was once a tariff for conveyancing but that has long since been abolished.

What followed was an extreme reduction in fees charged for conveyancing although there has been a slow rise in what the market allows since the 80's. Recently, I am informed the Alberta CBA Residential Real Estate sections adopted a Recommended Minimum Fee Guideline for legal services provided for real residential real estate transactions. The fee amount recommended for a conveyance (sale) under $600,000 is a fee of $700 and $850 for properties valued over $600,000. It is perhaps trite to say that these "simple" transactions have multiple requirements that create a minefield of potential liability.

There is little doubt that the strategy for the CBA

section is to convince practitioners to follow the guideline and increase what is charged by lawyers generally. Interestingly, it is still a far cry from that proposed by some foreclosure practitioners of $1,850 for a sale. This is particularly so as a foreclosure conveyance is covered by the virtually mandatory

Schedule A which makes it clear the property is sold "as is" with no representations and warranties of any kind whatsoever and no requirement for other documentation like RPR's and compliance certificates. Essentially all that need be tendered is the Order along with the appropriate trust letter and a statement of adjustments. Furthermore, the "minefield" of potential liability simply doesn't exist. Regardless, the amount generally allowed in Edmonton is $250 to $350 for fees.

In light of the correspondence with the previous owners counsel and the need to tender documents twice, I would allow the upper end of $350. I see nothing remarkable or significant that would warrant an overall increase in fees per se. [ 12 ] That reasoning was also recently approved and adopted by my colleague Marceau, J. in Equitable Trust Company v. Doxi , 2013 ABQB 406 as follows at paragraphs 4 through 10 for the following reasons: 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 is sold "as is" with no representations and warranties of any kind whatsoever and no requirement for other documentation like RPR's and compliance certificates. Essentially all that need be tendered is the Order along with the appropriate trust letter and a statement of adjustments. Furthermore, the "minefield" of potential liability simply doesn’t exist. Regardless, the amount generally allowed in Edmonton is $250 to $350 for fees.

In light of the correspondence with the previous owners counsel and the need to tender documents twice, 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 property from $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 Officer reduced 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 nothing so unusual as to warrant the significant increase in the usual fee.

As stated by Master Smart in the Soos , the work is not particularly difficult 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 extend curial 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 and vesting 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 these fees were for inspection which during the winter might be as often as weekly because of the danger of a freeze up. Counsel for the Defendant pointed out that the Defendant was in possession right up to and actually a few days after the Order for Vacant Possession took 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 to her. There was no preservation order. The Review Officer reduced the inspection fees to $200.00 in total. It seems to me that a couple of inspections should have satisfied the inspector that the Defendant was indeed in the home, was ensuring the utilities were not being disconnected and thereafter, much less frequent inspections would have been necessary.

I agree that the inspection fees were out of line and 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 an error 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 so low 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.

[ 13 ] I do have one concern however, in that the disbursements of $257.70 on the sale account were in the assessment officers decision subsumed and included as part of the $350.00 fee that she allowed, which I gather was inclusive of all disbursements. In my view, the $350.00 fee should be in addition to the legitimate disbursements that were granted by the assessment officer, in this case $257.70 essentially.

Accordingly the appeal is allowed only in so far as the $350.00 in fees for the sale will not be inclusive of disbursements incurred on that sale, but rather will be $350.00 plus approved disbursements of $257.70. Heard on the 31 st day of July, 2013. Dated at the City of Edmonton, Alberta this 9 th day of August, 2013. Donald Lee J.C.Q.B.A. Appearances: Mr. Nicholas Maggisano Vickers Hendrick LLP for the Applicant