CIBC Mortgages Inc. v. Sicoli, 2013 ABQB 451

Court of Queen ’ s Bench of Alberta Citation: CIBC Mortgages Inc. v. Sicoli, 2013 ABQB 451 Date: 20130809 Docket: 1103 16803 Registry: Edmonton Between: CIBC Mortgages Inc. Applicant - and - Matthew J. Sicoli Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _________________________________________ ______________ [ 1 ] This is an appeal from the assessment officer’s decision with respect to foreclosure proceeding fees which commenced in October 2011.

In December 2011 the plaintiff obtained a Redemption Order – Judicial Listing, with a redemption period that expired in February 2012. At that time the property was judicially listed, and in April 2012, an application was made to the court to accept an offer on the property. In the intervening period, the property became vacant and abandoned, so a Preservation Order had to be obtained from the court. On April 20, 2012 the court granted an order confirming sale and vesting title. The law firm represented the seller with respect to the sale of the property which closed on May 18, 2012.

In August 2012 the Bill of Costs was assessed on an ex-parte basis and reduced to $5,846.81. On September 17, 2012 counsel advised that this court granted an appeal of that assessment and directed that the Bill of Costs be reassessed. The reassessment occurred on January 21, 2013. The defendant did not appear, the fees were reduced from

$4,427 to $3,500; non-taxable disbursements from $360 to $342 and taxable disbursements were reduced from $2,816.81 to $1,784.06for a total reduction from $7,994.78 to $5,890.26 which was $43.45 greater than the assessment that had been appealed. [2] Counsel for the appellant submits that the taxation officer found that the action was a standard foreclosure action, so thatstandard Calgary Fee Guidelines should have been charged. Additionally, the sales account should not have been reduced from$1,390.45 to $300 plus disbursements of $257.77 for a total of $557.77.

The applicant submits that while it is true that the lawyerhandling this sale and the foreclosure matter is exposed to less liability, the amount of work required is in fact greater because in theaverage foreclosure sale, the following tasks are completed. • Instruct Property Inspector. • Obtaining/Reviewing new title and tax searches and trust letter. • Preparing a statement of adjustments. • Preparing a letter to the Registrar with respect to funds received. • Preparing a letter to the Registrar with respect to the description of purchaser. • Preparing an affidavit of transferee. • Receiving and reviewing conveyancing instructions from realtor. • Reviewing the realtor’s commission calculations. • Communicating with realtor. • Communicating with the lawyer for the purchaser. • Communicating with the property manager. • Receiving the cash to close and reviewing the letter from the purchaser’s solicitor. • Paying municipal taxes, condominium fees, prior encumbrances and realtor commission. • Communicating with client re: payout of mortgage. • Preparing affidavit of receipts and disbursements. • Preparing certificate of payment into court. • Paying net proceeds into court. • File documents. • Instruct service of statement of receipts and disbursements. • Prepare affidavit of service and file same. • Diarize final inspection invoices and any other invoices. • Review of further invoices. • Paying further invoices from holdback. • Preparing affidavit of receipts and disbursements with respect to holdback. • File document. • Instruct service of holdback statement of receipts and disbursements. • Prepare affidavit of service and file same. [3] The applicant submits that the standard of review is found in Fraser Milner Casgrain LLP v.

Kristof Financial Inc., 2012ABQB 359 at para. 16 and 17: 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. Stora

Kopparbergs 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”]. [4] A more recent version of the standard of review in these matters can be found at para. 38 of Repchuk v. Silverberg, 2013ABQB 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 [5] I have reviewed the assessment officer’s reasoning and on either standard of review, I find no reversible error.

Theassessment officer reduced the fees claimed on the foreclosure from $4,427.50 to $3,500 because it was a standard residentialforeclosure matter, and I agree with both this characterization and this assessment. The Preservation Order separately claimed from theassessment officer’s point-of-view should have been included in the Redemption Order.

I agree with the assessment officer’s conclusionthat the law firm rather than use boiler plate documents, should actually specialize the paragraphs that are specific to the actualproceedings to minimize the number of applications required. [6] The assessment officer disallowed the fax filing fee on the basis that CIBC was free to choose whichever law firm it wanted,but the defendant should not have to pay for the filing fees by fax simply because a Calgary law firm was dealing with property locatedin the judicial centre of Edmonton. [7] I also agree that the taxable disbursements should be reduced from that claim of $0.25 per photocopied page to $0.15 perphotocopied page, which is not an insignificant amount since these matters usually involve hundreds, if not, thousands of pages.

In thiscase 1,270 pages were photocopied and the difference of $0.10 per page would amount to a meaningful $127.00. There was no evidencetendered by the law firm presently or before the taxing officer as to its actual cost per page for photocopying to support the $0.25 charge.An application could have been made to tender new evidence on affidavit, even though this is a true appeal and not a hearing de novo.The Court would then be guided by the principles in R v. Palmer, (SCC), 1980 1 S.C.R. 759 at 775 where the Court said:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ (SCC), [1964]S.C.R. 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [8] The assessment officer in this case, unlike in others, did include disbursements in the $300 fee for the sale closing.Accordingly, the fee of $300 plus disbursements of $257.77 were allowed but the fee was reduced in opinion in accordance with theassessment officer’s following of AGF Trust Company v. Soos, 2012 ABQB 747.

Even though counsel has now provided a lengthy listof the items that are necessary on the closing, they are not worth anywhere near the almost $1,400 claimed herein. Master Smart gavesome further reasons in this regard at para 14 of AGF which I agree with: Recently, there was one item identified that was not being addressed the same by all assessment and review officers, at least, inEdmonton. That item was an additional fee for completing the conveyance of a property to a third party under an Order for Sale afterJudicial 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. [ 9 ] Accordingly the appeal in this matter is dismissed in its entirety. 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: N. Maggisano Vickers Hendrix LLP for the Applicant