Home Trust Company v, 2013 ABQB 454

Court of Queen ’ s Bench of Alberta Citation: Home Trust Company v 1115525 Alberta Ltd., 2013 ABQB 454 Date: 20130809 Docket: 1103 14754 Registry: Edmonton Between: Home Trust Company Applicant - and - 1115525 Alberta Ltd. Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _________________________________________ ______________ [ 1 ] This is an appeal from the assessment officer’s decision. The bill of costs was assessed on January 21, 2013 with the defendant in attendance.

Fees were reduced from $5,375.00 to $4,500.00; non-taxable disbursements were reduced from $485.00 to $330.00; and taxable disbursements reduced from $2,904.11 to $1,650.91. The total reduction in fees and disbursements was from $9,175.91 to $6,788.46. [ 2 ] The background of this matter is that foreclosure proceedings were commenced in September, 2011. The applicant law firm negotiated with the defendant with respect to an extension of time for its payment of outstanding funds, which funds that were ultimately not received so the applicant applied to Court for a redemption order.

A redemption order – judicial listing was obtained in December, 2011, and the redemption period expired in June, 2012, at which time the judicial listing began. The applicant law firm’s office received an initial offer on the property, but it was deemed to be too low, they attended Court again on an ex-parte basis to have the offer rejected.

In July, 2012, the law firm received a higher offer and applied to Court to have that offer accepted. In the interim, an even higher offerwas received, the law firm then proceeded to obtain a court order for the final and best offer to be submitted on a blind tender basis onAugust 8, 2012. On August 15, 2012, the Court granted an order accepting the highest tender. [3] The law firm then proceeded to represent the seller with respect to the sale of the property, which closed on September 6,2012. There were three subsequent encumbrances on this property, two of which were represented by counsel.

In total, the law firmprepared six payouts/arrears letters for the defendant and the subsequent encumbrances. Standard of Review [4] The applicant submits that the assessment officer operated on the wrong principle of law. The standard of review is found inFraser Milner Casgrain LLP v Kristof Financial Inc., 2012 ABQB 359 at paras. 16 & 17 quoted below: 16 When one reviews the many cases that deal with appeals from decisions of review officers (or taxing officers, as they were formerlyknown), there are certain principles that emerge. A review officer's decision is entitled to curial deference: 509703 at para 11.

Why? Areview officer's "duties commonly call for him to do this type of vetting because of the nature of his position and the expertise that hegathers in carrying out those duties": Carr & Co v. Markdale Ltd. (1996), (AB KB), 46 Alta LR (3d) 324 at para 20(QB) ["Carr & Company"]. See also McLennan Ross v. Mercantile Bank of Canada (1988), 1988 ABCA 224 , 59 Alta LR (2d)369 at para 6 (CA) ["McLennan Ross"].

The Alberta Court of Appeal in McLennan Ross went on to say that, "the taxing officer's functionis 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 an appealfrom 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), 41AR 418 at para 7 (NWTCA) ["Carter"]. Analysis [5] In the transcript provided of the assessment officer’s decision, it is clear that the assessment officer concluded that this was astandard residential foreclosure with “minor twists” on the file being first, the order rejecting the offer; and the subsequent ex-parteapplication for an order seeking the highest and best offer on a blind tender basis.

The taxing officer also noted that three subsequentencumbrances on the file required “a bit more work than usual”. The total fee of $5,375.00 was reduced to $4,500.00 for the foreclosurematter; and $1,743.20 to $350.00 plus disbursements for the sale file. Fax Filing Charges [6] The first contentious item herein is the refusal of the assessment officer to allow fax filing fees of $135.00 which theassessment officer reasoned were only payable because the plaintiff had chosen to use a Calgary law firm to fax file the materials at theEdmonton Law Courts.

The assessment officer did not believe that fax filing fees, which I gather to be $1.00 per page, should be paid forby the defendant. [7] In this regard, the applicant submits the fax filing fees represent the actual costs incurred by the applicant in order to filecourt materials in Edmonton from Calgary, and that there is at least one unreported decision of my colleague, Bast J., where fax filingfees were specifically allowed. Accordingly, the applicant submits that the fax filing costs should be allowed. [8] Counsel, Mr.

Maggisano, did not however advise the Court of at least one decision of which he was counsel of record beforemy colleague Justice Browne on an appeal of an assessment, in which she specifically rejected fax filing fees.

This occurred in CIBCMortgages Inc. v Kimberly Sicoli, Action No. 1203 00079, in which Justice Browne stated the following: First, fax filing, again, I put it to counsel for the bank that if the bank decides to hire Calgary counsel, they are going to have to absorbsome disbursements that would not be disbursed if counsel that were in the city where the mortgage was loaned is located, and CIBC is abig corporation. So when they make those decisions, if they decide to hire counsel in Calgary, then they get to absorb fax filing, so thatis off.

I agree with the taxing officer. (Decision rendered January 15, 2013, Transcript page 7, Lines 19-24) [9] It is indeed troubling that counsel who appeared and argued this current matter in May 2013, and was counsel when JusticeBrowne’s decision was rendered in January 2013, would provide the Court with what was described as an “unreported decision” ofJustice Bast, which actually amounted to no more than a two page Amending Order without any reasons, as being the relevant authorityon the issue of fax filing. [10] My conclusion on fax filing costs is the same as that of my colleague Justice Browne and the assessment officer, so the appealwith respect to fax filing costs is dismissed.

Other Taxable Disbursements for Photocopying, Telecopier, and Email [11] The taxing officer next held that the taxable disbursements for 697 pages of photocopying being claimed at $0.25 per pageshould be reduced to $0.15 per page as per the standard use by the assessment office in Edmonton in January, 2013. For telecopier andemail charges, 240 pages were being claimed at $0.25 per page, and that amount was also reduced at $0.15 per page.

[ 12 ] I conclude that there is no error in principle contained in the review officer’s reduction for photocopying expenses from $0.25 per page to $0.15 per page, and the review officer is entitled to curial deference given their specialized function. Also, the applicant never presented any evidence as to the actual cost to the law office of photocopying and other charges. Accordingly, this part of the appeal is also dismissed.

Legal Fees [ 13 ] Legal fees in this foreclosure matter and in the sale were reduced on the basis that they were relatively standard straight forward matters that proceeded largely by consent. Mr. Maggisano objected to any reduction in fees. He submitted that on an hourly charge basis, the total fees in the foreclosure matter were over $10,000.00, as opposed to the total fees of $4,500.00 granted. [ 14 ] I note that the hourly rate that appears to be claimed to arrive at the total billable hour charge of over $10,000.00, was $495.00 per hour.

The lawyer billed 18.1 hours, for a total of $8,959.50, and legal assistant time at 12.3 hours at $125.00 per hour for a total of $1,537.50 was then added to this. [ 15 ] Regarding these $10,000.00 legal fees, and the sale fee of $350.00, the taxing officer preferred the analysis of Master Smart in AGF Trust Co. v Soos , 2012 ABQB 747 , wherein he stated at paras. 9 and 14 as follows: [ 9 ] Standard residential foreclosure actions are not difficult. They are of a nature that I would describe as commodities work.

When comparing it to other commodities type work such as residential real estate conveyancing it is very low risk from a lawyer liability perspective. The vast majority of the work on the file (I would estimate 95%) is done by paralegals filling in blanks of precedents and following checklists which were by in large prepared years ago. Seldom is there any real challenge or complex legal issues that need to be addressed. The lawyers role is to review documents and provide general instruction although most is done without their direction or involvement.

Of course, the lawyer must attend in Court for the applications where, far too often, they demonstrate their limited involvement in the file by knowing little beyond what notes someone (the paralegal) has prepared for them and present Orders for signature that they clearly haven't reviewed. ... [14] 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. [ 16 ] I am in agreement with Master Smart’s analysis as quoted above. I further conclude the billable time when charged out at almost $500.00 for the lawyer for essentially routine work, supplemented by legal assistant time billed at $125.00 per hour makes any time charge/hourly rate calculations almost meaningless. [ 17 ] Mr.

Oluk, in opposing these charges before the assessment officer, went further at page 4, lines 28-37 of the transcript: So I think we should see a copy of the agreement that they have with CIBC for how much cost they are entitled to charge CIBC.

Without that, that makes it rather difficult for us to make any response because I know that I’ve talked to lawyers at... and I’ve talked to lawyers at..., I’ve talked to a number of lawyers in this province, and they all have agreements with the banks where they basically get cut throat with each other and they cut it down to the banks; but then when it comes time to collect the money from the other people, they seek to collect lots of money from the other people when all they are entitled to under the terms of their mortgage collection agreement is indemnification for the cost as CIBC would be paying out not for just taking some wild stab at costs in run-around ways if it was listed by costs granted under a different term. [ 18 ] In fairness, Mr.

Maggisano in response to when asked about the assessment officer, replied at page 6, lines 15-27 as follows: I don’t have in front of me, you know, an agreement with CIBC on what is actually being paid by CIBC. I can assure you it’s not our practice to bill the defendant for more than what indemnity costs would be. Conclusion [ 19 ] The appeal in this matter is dismissed.

Legal fees on the foreclosure remain at $4,500.00; legal fees on the closing are set at $350.00 plus disbursements; fax filing charges are disallowed in their entirety; and I confirm the assessment officer’s reduction of photocopying, telecopying and email charges per page at $0.15 per page reduced from $0.25 per page claimed by the appellant.

Heard on the 15 th day of May, 2013. Dated at the City of Edmonton, Alberta this 07 th day of August, 2013. Donald Lee J.C.Q.B.A. Appearances: Nicholas Maggisano Vickers Hendrix LLP for the Applicant John Oluk, Officer of 1115525 Alberta Ltd. for the Respondent