Lewis Estates Communities Inc. v. Brownlee LLP, 2013 ABQB 508

Court of Queen’s Bench of Alberta Citation: Lewis Estates Communities Inc. v.

Brownlee LLP, 2013 ABQB 508 Date: 20130909 Docket: 1003 16479 Registry: Edmonton Between: Lewis Estates Communities Inc., Jagare Ridge Communities Inc., and Country Club Tour Corp. (Operating As Raven Crest Golf & Country Club and River Ridge Golf Club) Applicants - and - Brownlee LLP Respondent Corrected judgment: A corrigendum was issued on September 19, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr.

Justice Russell Brown _________________________________________ ______________ I. Introduction [ 1 ] The Applicants Lewis Estates Communities Inc. (“Lewis Estates”), Jagare Ridge Communities Inc. (“Jagare Ridge”) and

Country Club Tour Corp. (“Country Club”) apply for an order allowing them to seek review by a review officer of accounts for services rendered by the Respondent Brownlee LLP (“Brownlee”), notwithstanding that almost all of the invoices were issued more than six months prior to their filing of the Appointment for Taxation. [ 2 ] The Applicants also seek an order compelling Brownlee to provide the complete files relating to the matters covered by accounts. II.

Background The Golf Course Group Retains Brownlee [ 3 ] In late 2006, the City of Edmonton notified the owners of 12 golf courses, including the Applicants, that it was changing the methodology used to value golf courses for the purposes of property tax assessments. This led to increased taxes for 2007. [ 4 ] Representatives of the golf courses decided as a group (the “Golf Course Group”) to dispute the City’s methodology and to retain Brownlee to represent their interests. Their primary contact at Brownlee was Barry Sjolie, QC.

After efforts to settle the dispute with the City proved unsuccessful, the Golf Course Group instructed Brownlee to file a complaint about the assessments for 2007 with the City of Edmonton Assessment Review Board (the “ARB”). An ARB hearing was held in September 2007. The decision of the ARB was appealed (the evidence does not show by whom) to the Municipal Government Board (the “MGB”). The Golf Course Group also filed a complaint with the ARB about the assessments for 2008. The ARB heard that complaint in November and December, 2008.

The ARB’s decision was again appealed to the MGB. [ 5 ] The MGB heard both appeals (for the 2007 and 2008 assessments) in January 2010. I infer from Brownlee’s accounts, which formed part of the agreed exhibits to this application, that the hearing of evidence consumed most of the rest of January 2010, and that Brownlee subsequently prepared and delivered written arguments and rebuttal arguments on the Golf Course Group’s behalf. The MGB issued its decision in mid-July 2010. By this time, the Golf Course Group had also filed a complaint with the ARB about the 2009 assessment.

It appears from Brownlee’s time entries that an ARB hearing on the 2009 assessments took place in November and December 2009. It also appears from Brownlee’s time entries that they had also complained on the Golf Course Group’s behalf about the 2010 assessment. There is no evidence before me of the ultimate disposition of either of the 2009 or 2010 complaints. [ 6 ] Brownlee did not reduce the terms of its retainer to a formal written agreement with the Golf Course Group, but the parties were agreed before me that Brownlee’s charges were based solely on hourly rates for time spent, and not on any other measure.

From November 2006 to April 2010 inclusive, Brownlee rendered, and the Golf Course Group paid, monthly accounts (except for the months of March 2006 and November 2008). [ 7 ] All the work done by Brownlee for the Golf Club Group was recorded and billed under five files: 1. File No. 78686-001 – “Assessment Appeal (2007 Tax)”; 2. File No. 78686-002 – “Assessment Appeal (2008 Tax)”; 3. File No. 78686-003 – “2007 & 2008 MGB Appeal”; 4. File No. 78686-004 – “Assessment Appeals – 2009 Tax Year”; and 5.

File No. 78686-005 – “Edmonton Golf Courses 2010 Tax Assessment Year Complaints”. [ 8 ] It is important at this point to note that Country Club withdrew from the Golf Course Group in February 2010. Brownlee’s accounts rendered in March 2010 and April 2010 do not reflect legal services performed for Country Club, and Country Club was not responsible for payment of those accounts. Handling Brownlee’s Accounts [ 9 ] The Applicants rely on the affidavits of Kevin McGee and Tariq Deeb. Both Mr. McGee and Mr. Deeb were questioned on their affidavits. [ 10 ] Mr.

McGee was at all material times the senior accountant of Melcor Developments Ltd (“Melcor”), which is the managing joint venture partner of Lewis Estates. He wore two hats in this matter. First, he acted as treasurer for the Golf Course Group. He received Brownlee’s accounts, arranged for Melcor to pay them, and then oversaw the reimbursement of Melcor by all participants in the Golf Course Group. This entailed providing participants with a copy of Brownlee’s account and a spreadsheet showing their respective proportionate share of responsibility for the account. Secondly, Mr.

McGee was responsible for seeing to Lewis Estates’ reimbursement of Melcor for its proportionate share. This payment required the approval of Mr. McGee and of another officer of Lewis Estates. Under questioning, this exchange occurred (page 20, line 21 to page 21, line 10; page 25 lines 6 to 13): Q Now, presumably, the invoices that you approved or don’t approved [ sic ] – or, invoices received are sometimes approved or not approved. What’s your process for deciding whether you’re going to approve an invoice for payment or not, your general process?

If you say you follow the same process all the time, what is that process? I’m sure you don’t just look at the amount and say, “I’m going to write a cheque” without determining whether – doing due diligence to consider whether the invoice should be paid. What do you do? A Received our proportionate share, reviewed our proportionate share amount. If it looked reasonable, the cheque was processed for reimbursement to … Melcor Developments.

… Q When you, on behalf of Lewis Estates, reviewed the accounts – and I think you indicated that the process was to look at them, look at the information given, and determine whether you considered it to be reasonable. Do I have that correct? A I didn’t – they were reviewed. There was not always a detailed review done. Q So sometimes there would be a detailed review done of the description and time and sometimes not? Is that correct? A There would not be what I would classify as a complete detailed review done.

Q … You at no occasion went through, for instance, and identified what you’ve indicated in your Affidavit about one-hour lump sum charges by Mr. Sjolie. That’s not something you had assessed or looked at on receipt of each account? A Not on receipt of the account, no. Q Well, prior to approving payment, did you sometimes look at the amount of time spent by the lawyers and determine whether it was, you considered, reasonable expenses? A I reviewed the

summary billing of the account, not the detailed line-by-line items. Q And the

summary billing of the account showed the total time spent by each of the lawyers? A I believe so. [ 11 ] Mr. Deeb was at all material times Country Club’s controller. He deposes that, after receiving Brownlee’s accounts from Mr. McGee, he would “receive and review” them, but “at that time I did not pay close attention to the specific time entries by each of the lawyers working on the file, including [Mr. Sjolie] as I trusted and hoped that our solicitors were billing us for time reasonably and properly incurred.” [ 12 ] Under questioning, Mr.

Deeb indicated that he took directions in this matter from Sam Moussa, which prompted this exchange (page 10, line 14 to page 11, line 8; page 12, line 13 to page 13, line 24): Q … What instructions did Sam Moussa give you about the accounts? A Pay the bills. Q Without question? Is that what he told you to do? A He didn’t say “without questions.” Pay the bills. If I have a question, I would ask him. Q All right. Did you ask Sam Moussa questions from time to time about the bills? A Yes. Q And did you ask Sam Moussa for his authority or go-ahead to pay the bills on each occasion that they were paid?

A He signs the cheques. Q All right. So tell me what process you went through with Sam Moussa for him to sign the cheques. What information did you give to Sam Moussa about the Brownlee bills? A I would print off what Kevin McGee would send me, enter them into Quickbooks, issue cheques, and then he would sign them. … Q All right. So if Sam Moussa, then, had questions, he would ask about it? That was what you understood? A Yeah. If I had questions, I would go to Sam Moussa. If he felt they were relevant, he might go and ask. It’s not for me to decide.

Q Well, what questions did you ask or pass on to Sam Moussa during the course of your dealings with the Brownlee accounts? A I was concerned about the length of time, and I was concerned about how much we were paying. [ 13 ] In short, Brownlee’s accounts were received by Mr. McGee as the Golf Course Group’s treasurer. After reviewing the

summary billing of each account showing the total amount of time spent by each lawyer working on the file, he arranged for payment of the account by Melcor and then requested reimbursement from each of the participating golf courses based on their agreed-upon proportionate share. He also arranged for reimbursement from one of those participants, Lewis Estates. Country Club’s reimbursement of Melcor was overseen by Mr. Deeb, who took directions from Mr. Moussa to pay the accounts. Appointment for Taxation [ 14 ] Eventually, Brownlee’s accounts became a subject of contention with the Applicants. As to how and when this occurred, Mr. McGee deposes:

8. In determining whether to continue to challenge the methodology used by the City for the 2009 year, [Lewis Estates] reviewed all of the issues in this matter, and in particular the legal fees that had been charged by [Brownlee]. As a result of that review, [Lewis Estates] became concerned respecting the manner in which the Golf Course Group had been billed. As a result, on September 29, 2010 an Appointment for Taxation was filed in this matter. ... 9. After filing the Appointment for Taxation, other members of the Golf Course Group wished to join the taxation. … 10. The Applicants have concerns respecting the invoices issued by Brownlee LLP. These concerns include the following: (

a) It is my understanding that the issues for the 2007, 2008, 2009 and 2010 years are the same. On behalf of the Golf Course Group, Brownlee LLP made submissions to the ARB and to the MGB that the issues were the same, and that the MGB’s decision for the 2007 and 2008 years would likely decide the 2009 and 2010 years. For the two ARB hearings and the MGB appeal, Brownlee has invoiced the golf courses $1,857,649.82 which does not include third party expert fees. (

b) Despite the issues in the ARB and MGB proceedings being the same, Brownlee has had two senior lawyers, Barry A. Sjolie, Q.C. and Alvin R. Kosak regularly active in each application and matter, along with support from junior lawyers. After reviewing all of the invoices to date, I am uncertain why both lawyers have needed to be actively and regularly involved in this matter, to the extent they have been. This concern is further heightened as a result of Mr. Sjolie’s billing. (

c) Most of the time recorded by lawyers at Brownlee LLP appears to be done on a “point 1” basis or time was charged for every 6 minutes spent. The exception to this was Mr. Sjolie whose time seems to be regularly recorded on a whole number or whole hour basis. If Mr. Sjolie does not record his time on a whole hour basis then I am very concerned as he recorded his time to a whole hour over 97% of the time. When I reviewed each individual invoice after receipt of it, I never noticed this pattern of time recording. The Applicants were never advised by [Brownlee] or agreed that Mr.

Sjolie would bill on a minimum one hour basis. 11. I do not know whether Mr. Sjolie has a justifiable reason for his manner of billing or time recording. I also do not know whether all of the time invoiced by [Brownlee] was reasonably justified or necessary. However, the Applicants are concerned and I and the Applicants would like to have these questions answered before a Review Officer. [ 15 ] Mr.

McGee was questioned on this aspect of his affidavit (page 27, lines 8-21; page 28, lines 3-5 and 17-21): Q Well, as you wear your other hat as the representative for Lewis Estates was there any concern raised by you with any of the other golf courses or by any of the other golf courses with you from time to time about the Brownlee invoices? A There were – there were discussions. There were – there were discussions about concerns about the amount that the Golf Course Group was spending, yes, being invoiced. Q And can you give me any time of timeframe when such concerns were first expressed?

A The exact dates, I couldn’t give you.

It would have been sometime during the MGB hearing that some of us started to get concerned. … A There – there – there would have been somewhere around – somewhere later in 2009, we started to be concerned, some of us. … … A There were discussions in the group meetings about – about how much we were spending, and there were – we were always cognizant that the amount was accumulating and whether we wanted to continue in the action. [ 16 ] And, further (page 39, line 16 to page 40, line 9; page 40, line 17 to page 41, line 3): Q … The question is did you ever express at any time from beginning to end to Brownlee any concern with respect to whether the charges made by Brownlee were appropriate in relation to the work that had been done by Brownlee?

Was there ever a concern, a complaint, comment, of any kind? A I don’t recall making a direct complaint to Brownlee. Q All right. Are you aware of any – we’ll call it, then, a complaint, by which I mean expression of any concern with respect to whether the charges were appropriate. Are you aware of any such complaint being expressed to Brownlee at any time by any member of the group? A Mr. Moussa indicated to me that he had expressed concerns over the amount of billings to Brownlee, but other than that, no. Q And when did Mr. Moussa make that comment to you? … A I would guess 2009. Not at the initial outset.

Q All right. Sort of in the timeframe that you told me about earlier when there had been amongst the group some discussion about the amount of the accounts in total? A In and around that time, yes.

Q And I understand your evidence to be that the discussion was about the amount of the accounts in total as they’d been accumulating rather than whether the charges made were appropriate in relation to the time spent. A Correct. [ 17 ] And, with respect to the involvement of Mr. Sjolie and Mr. Kozak (page 41, line 23 to page 42, line 10): Q … I’d just like you to explain that a little further. I think you’ve told me that you were personally involved in dealing with Mr. Kozak and Mr.

Sjolie pretty well from beginning to end, that each of them or both of them from time to time would be involved in assisting in preparing for hearings, conducting hearings, attending meetings of the group. Do you have any concern over those years as to the usefulness of having both of them involved? A I have no concerns. I just don’t know why both had to be there. Q Was that ever raised as a question by you? A No. [ 18 ] Mr. Deeb’s evidence also touches upon Brownlee’s accounts. It will be recalled from Mr.

Deeb’s evidence under questioning, reproduced above, that he was “concerned about the length of time, and … about how much we were paying.” His evidence continued: Q When did you have the concern about how much you were paying? A I don’t know. Sorry. I can’t tell you. Q Well, we’ll have to try to do a little better than that. The relationship with Brownlee and the first accounts that were sent were in 2006. 64 accounts were sent in total pretty well month by month into early 2010.

So with that timeframe in mind, tell me when, during that period of time, you expressed a concern to Sam Moussa about how much you were paid? A I would say sometime in 2008. Q Do you recollect anything more specific? When in 2008 it would have been or what were the events or state of affairs at the time you first expressed a concern to him about the accounts? A It’s a long time ago. Sorry. Q Yeah. Did you after first developing this concern in 2008 then continue to express concern to Sam Moussa from time to time about how much was being paid for the Brownlee accounts?

A Not on – not regularly, but once in a while, it would come up again. Q All right. And what was said? What did Sam Moussa say to you when you expressed that concern? A I don’t recall. [ 19 ] Lewis Estates filed its Appointment for Taxation on September 27, 2010. That Appointment was refiled by Lewis Estates and Jagare Ridge as an Amended Appointment for Taxation on September 29, 2010.

An Amended Amended Amended Appointment for Taxation was filed on October 29, 2010 adding Country Club. (Where I refer to all of these documents collectively, I will do so as the “Appointments”). [ 20 ] The original and subsequently amended Appointment (and Mr. McGee’s affidavit) seek review of all of Brownlee’s accounts going back to the first account rendered November 28, 2006.

Before me, however, the Applicants acknowledged that they may only seek a review of lawyers’ charges going back two years prior to delivery of their respective appointments (specifically, back to and including Brownlee’s account dated October 23, 2008). This is because an Appointment for Taxation is an application for a remedial order within the meaning of Sections 1(

i) and 3(1) of the Limitations Act , RSA 2000, c L-13 and, as such, is confined to debt incurred within the previous two years. ( Sharma v 643454 Alberta Ltd , 2006 ABQB 119 at paras. 33-36 ). Requesting the Files [ 21 ] The background to the application to compel Brownlee to provide the complete files relating to the matters covered by accounts is set out in Mr. McGee’s affidavit. In brief, the Applicants (initially Lewis Estates and Jagare Ridge) retained counsel to pursue a review of Brownlee’s accounts. That counsel requested from Brownlee a copy of the entire files.

Brownlee provided portions of the files, but not the entire files, taking the position that the Applicants are only entitled to the materials that pertain specifically to them, and not to other members of the Golf Course Group. III. Can the Applicants Review Brownlee’s Accounts? [ 22 ] As I canvass below, Lewis Estates and Jagare Ridge do not require an order of the court to review an account sent six months (or less) prior to filing an Appointment for Taxation.

The parties therefore agree that Lewis Estates and Jagare Ridge are entitled to a review of Brownlee’s accounts dated April 29, 2010 and March 30, 2010, but that they require an order to pursue a review of Brownlee’s accounts going back any further. For the same reason, Country Club, whose Appointment for Taxation was delivered in October 2010 – fully eight months after Brownlee’s last account for services to Country Club – requires an order to pursue a review of any of Brownlee’s

accounts. Application of “Old” and “New” Rules [ 23 ] As the Appointments were filed prior to the adoption of the Alberta Rules of Court (AR 124/2010) (the “ Rules of Court ”) on November 1, 2010, I must apply Rule 647 of the Alberta Rules of Court , AR 390/68 (the “Old Rules ”), which governed their application and validity at the time they were filed. ( Samson Cree Nation v O’Reilly & Associés , 2013 ABQB 350 at para. 153 ). Rule 647 (

d) provided “[u]nless the court otherwise orders no bill of costs is subject to taxation if it was fully paid following the completion of the services, after six months from delivery.” [ 24 ] In the circumstances of this application, the effect of Rule 647 (

d) would be the same as the combined effect of Rules 10.10(2) and 13.5(2)(

a) under the Rules of Court . Rule 10.10(2) provides that “[a] lawyer’s charges may not be reviewed if six months has passed after the date on which the account was sent to the client. Rule 13.5(2)(

a) provides that “the Court may … extend … a time period that is specified in these rules.” Under either the Alberta Rules of Court , then, or under the Old Rules , the Applicants require an order from this Court to seek a review of any account sent six months ago or more. [ 25 ] While the Appointments are governed by the Old Rules , the application to extend the time period for seeking a review of Brownlee’s accounts is governed by the Rule 13.5(2)(

a) of the Rules of Court . ( Samson Cree , at para. 156). Factors to be Considered [ 26 ] Rule 647, like Rules 10.10(2) and 13.5(2)(a), confines the Applicants’ entitlement (absent an order from the Court) to a review (or, in the language of the Old Rules , a taxation) of lawyers’ charges to those delivered within the past six months. While the six month rule is not a statutory time bar (in which case I could not extend it unless the statute expressly gave me that power) it presumptively restricts the scope of accounts that a review may cover. It does so for reasons stated by my colleague Browne J. in Twinn v.

Sawridge Band , 2012 ABQB 44 at para. 38 : The six month time limit for client-initiated reviews makes sense for many reasons. Clients will almost always be aware of any concerns they may have about lawyers’ fees within six months of receiving the final account. Client-initiated reviews put lawyers on notice that a client has concerns. The time limit encourages clients to voice concerns close to the date they arise.

This makes it easier for all parties (including the Review Officer) to resolve disputes. …. [ 27 ] Justice Browne’s reasons are consistent with the public policy rationale referred to by Rooke ACJ in Samson Cree , at para. 23: … [T]here is an off-setting public policy provision that lawyers are not to be subject to surprise taxation after many years in a complex and lengthy case unless the retainer allows that. [ 28 ] To this, I would add that the rule is a product of a balancing of legitimate competing interests.

On one hand, the client has a right to initiate a review of accounts in order to require the lawyer to demonstrate their reasonableness. This right is an important aspect of the lawyer-client relationship that is intended to foster public confidence in the administration of justice. Conversely, lawyers are entitled to a prompt request for review.

This allows them not only to make a full answer on review, but also to have a measure of finality with respect to the status of an account after a reasonable passage of time. [ 29 ] While, therefore, the six month rule can be circumvented by an exercise of my discretion to extend the review period beyond six months, I must bear in mind that it exists for good reasons. Where I choose to exercise my discretion to extend the time period beyond six months, I must do so judicially and in the interests of justice.

This means I must weigh the factors relevant in the circumstances of this application to the exercise of my discretion, having regard to established principles and to whether exercising (or not exercising) my discretion would produce injustice or unfairness. ( Mitrovic v Mitrovic , 2007 ABQB 107 at para. 7 , Veit J). [ 30 ] This Court has on several prior occasions articulated an array of factors to be considered on an application to extend the time period for a review of lawyers’ charges, some of which might have more case-specific application than others.

There is, however, no preordained checklist of factors to be reviewed in each case. Nor should there be. The exercise (or non-exercise) of my discretion must be informed by considerations that apply to this particular application. [ 31 ] Prior decisions of this court have adopted a similarly case-specific approach to the factors to be considered. In Poundmakers Lodge v Scott & Co , 2002 ABQB 745 (at para 13 ), Read J, having reviewed the jurisprudence and the circumstances of that application, considered the following four factors: 1. Did the delay in filing the taxation cause prejudice to the solicitor? 2.

When did the client express the intent to tax the accounts ? 3. Were the accounts part of a continuing file and therefore interim accounts? 4. Is there evidence that there was an overcharging and that it is just and equitable that the accounts be taxed ? [ 32 ] In Prophet River First Nation v Rath & Company , 2011 ABQB 408 at para. 21 , Macleod J also thought it important to answer these questions: 1. Is there evidence that the parties have come to an agreement as to the amount of the account?

2. Does the evidence of the entire relationship between the solicitor and client support any extension of time? [33] To the six factors considered in Poundmakers Lodge and in Prophet River, taken together, Rooke ACJ added another factor inSamson Cree (at para. 39), which is whether the applicant has a reasonable excuse for failing to seek a review within six months.

Herelied upon the decision of Master Laycock in BA Capital Inc. v Focussed Money Solutions Inc., 2012 ABQB 379, which stated (at paras.8-9): In this application the first consideration is whether or not the applicants can satisfy me that they have a reasonable excuse for failing tobring the disputed accounts before a Review Officer within six months of the bill being delivered. In the case of a series of interimaccounts, it is the date of the delivery of the final bill that is material. See Baxandall v. Peterson Hustwick Wetsch & Moffat (1994), (AB KB), 154 A.R. 353 (Q.B.).

In this case the applicant has provided no evidence in his affidavit to explain the 16 month delay following the final account in bringingthis application or when he became concerned about the size of the account or the performance of the law firm. [34] Most recently, Burrows J, in Thistle v Stringam Denecky LLP, 2013 ABQB 372, after acknowledging Poundmakers Lodge,Prophet River and BA Capital Inc., rejected Master Laycock’s analysis in BA Capital, which appeared to have held that the failure toaccount for a delay beyond six months is fatal to the application for an extension of time.

Burrows J said, and I agree, that the quality ofan explanation, or its absence, is only one factor to be taken into account. He added (at para. 19) that “[i]n a case such as this, where thedelay has been short, the absence of an explanation is of much less significance than the absence of evidence of prejudice.” (The finalaccount in that case had been sent eight months prior to the client seeking a review). [35] In addition to several of the factors listed above, Burrows J also considered, first, whether there “appears to be possible meritto the client’s position that the accounts were excessive”.

While he cautioned that it is not his role to consider the actual merits, heviewed it as relevant to the exercise of his discretion to consider whether the client’s complaint appears to have sufficient merit to justifya review. This makes sense. There is no point to this Court exercising its discretion to further an obviously hopeless cause.

Secondly,Burrows J considered whether the extension request was for a significant period of time, stating (at paras. 29-30): Where a client seeks to have an account reviewed many months after it was rendered the application should be viewed differently thanwhere the required extension is small. The smaller the sought extension, the easier it should be to obtain it. This is undoubtedly related tothe prejudice point previously discussed. Prejudice to the firm's ability to defend the accounts at the review is likely to be minimal if thedelay is short. Here the sought extension is 2 months.

That is short. [36] The various factors identified in prior decisions of this Court are not watertight compartments. (For example, Read J’s factorof when the intent to tax first expressed overlaps with Master Laycock’s and Rooke ACJ’s factor of the reason for the delay.

Her factorof possible overcharging also overlaps with Burrows J’s consideration of whether the applicant’s case appears to have “possible merit”.And, as will be seen, Burrows J’s consideration of length of time of the extension overlaps somewhat with the consideration of prejudiceto the lawyer.) Moreover, some of the factors may not apply in every case. (For example, the factor of whether the parties have come toan agreement as to the amount of the account would not work in favour of or against either the Applicants or Brownlee.) All this meansis that the considerations to be applied here are to be examined (as they were in Samson Cree and Prophet River) in relation to eachother. [37] Taking all of the foregoing into account as well as the circumstances of this particular matter, I view the followingconsiderations as having the most significance to deciding this application: 1.

Accounts: What sort of accounts did Brownlee render to the Applicants? 2. Length of Time of Extension: Is the extension sought for a short or long period of time? 3. Reason for Delay: Why did the Applicants fail to file their Appointments prior to the expiration of 6 months? 4. Prejudice: Did the delay in filing the Appointments cause prejudice to Brownlee? 5. Evidence of Overcharging: Is there evidence that (absent a satisfactory answer from Brownlee) might merit a finding ofovercharging, such that it is just that the accounts be reviewed? 6.

Relationship: Does the evidence of the entire relationship between Brownlee and the Applicants support an extension of time? [38] No single factor is, on its own, determinative.

For example, the absence of prejudice in and of itself would be insufficient topermit the Applicants to obtain a review of Brownlee’s accounts. (Poundmakers Lodge, at para. 18.) [39] While there is no particular order in which most of these factors should be considered, the type of accounts rendered byBrownlee is pivotal to some of the other factors (in particular the length of time extension and the reason for the delay), and so I willconsider that first.

(1) Accounts [40] Each of Brownlee’s 68 accounts sent to the Golf Course Group describe the legal service performed by each lawyer, andwhen it was performed. They record the time spent and the total charge for each particular legal service. Each account is prefaced withthe statement: “TO PROFESSIONAL SERVICES RENDERED up to and including [the date of the last recorded legal service]”. Theaccounts dated November 28, 2006, December 27, 2006 and January 31, 2007 (all of which relate to File No. 78686-001 – “AssessmentAppeal (2007 Tax)”) conclude with the notation “TOTAL DUE AND OWING”. All accounts after January 31, 2007 conclude with the

notation “TOTAL DUE THIS MATTER”. [41] In Samson Cree (at paras. 18-43), Rooke ACJ clarified the different types of retainers that govern the lawyer-clientrelationship. I will not review all of them here. The issue to decide here is whether Brownlee’s periodic accounts (being accounts thatwere sent out at intervals during the term of the retainer) were interim or final. On this distinction, Rooke ACJ said (at paras. 45-46): Periodic accounts may be interim or final.

An interim account is one that is not final, but is issued pending a final account, and may bechanged directly at any future time or in the end result between the time it is issued and the final account. It is thus customary thatinterim accounts are not the subject of taxation individually, but rather only the final account. When the final account is taxed, all theinterim accounts issued leading to the final account are taxable.

Final accounts are ones that conclude all truly interim or provisional accounts before them (in which case, as noted, all the interimaccounts are part of that taxation), or are final and taxable in themselves, with no regard to other accounts. [42] As to determining whether a periodic account is interim or final, Rooke ACJ undertook a comprehensive review of theauthorities (including Sharma; Raithby v Fraser & Beatty (2000), (ON SC), 47 OR (3d) 245 (SCJ); Enterprise Rent-a-Car Co v Shapiro, Cohen, Andrews, Findlayson (1998), (ON CA), 38 OR (3d) 257 (CA); Siegel v Cameron &Cameron, [1996] AJ No 757 (QB); Nathanson, Schachter & Thompson v Levitt, 2004 BCSC 1402; Poundmakers Lodge; Morin, Grant vOlsson (1994), 37 CPC (3d) 130 (BCSC); Siegel v Cameron & Cameron, [1996] AJ No. 757 (QB); Robertson, Ward, Suderman &Bowes v BC (BC Transit), (1987) (BC CA), 19 BCLR (2d) 1, [1988] 1 WWR 649 (CA); and Re Romer & Haslam,[1893] 2 QB 286 (CA)).

Taken together, these authorities have focussed on whether the lawyer and the client considered each of theaccounts in question to be the lawyer’s final account for the work recorded.

And, in determining with regard to the dealings of the partiesand the circumstances whether the parties intended that each account would be final, they establish that a periodic account is likely to beconsidered final when the where the parties understand that the lawyer’s charges will be based upon hours spent and the lawyers’billable rates, and that the charges will not be adjusted, whether upwards or downwards, upon issuance of a final bill at the conclusion ofthe matter. [43] While conceding that Brownlee’s accounts might be final accounts, the Applicants say that the lack of a written retaineragreement leaves the matter uncertain.

In this regard, Mr. McGee said under questioning that Craig Rusnak, who was associated with agolf course that is not included among the Applicants, served initially as the Golf Course Group’s contact with Brownlee. Mr. Rusnak’sevidence as to the terms of the retainer are not before the Court.

For this reason, the Applicants submit that the possibility that each ofBrownlee’s accounts were final ought not to weigh against granting the extension of time. [44] Brownlee submits that it is obvious, from the face of the accounts and from the conduct of the parties, that each account wasconsidered by the parties to be final. [45] I agree. Each of the accounts specified that they pertained to professional services rendered during a specific time period. Thetotal was said to be “due”. Mr. McGee’s and Mr.

Deeb’s evidence as to the handling of Brownlee’s accounts demonstrates that theApplicants considered the accounts to be payable immediately, and not subject to some later adjustment based upon success or someother contingency. And, as I have already noted, the parties were agreed before me that Brownlee’s charges would be based solely onhourly rates for time spent. [46] I am satisfied that both Brownlee and the Applicants considered each of the accounts to be a final account for the workrecorded, and I find that each of the accounts sent by Brownlee to the Applicants was a periodic final account.

(2) Length of Time of Extension [47] While the fact that each of Brownlee’s accounts was a final account does not weigh against granting any extension of time, itdoes mean Rule 647’s six month time period runs separately from the time each separate account was sent. Consequently, the length ofthe necessary extension of time varies with each account. Review of an account sent February 25, 2010 would only require a shortextension of one month for Lewis Estates and Jagare Ridge, and of two months for Country Club. This would support granting anextension.

Review of an account sent October 23, 2008 would require extensions of 17 and 18 months, respectively. This would militateagainst granting an extension. (And, of course, it would also be statute-barred in respect of Country Club by operation of the LimitationsAct).

(3) Reason for Delay [48] There ought to be a very good reason supporting any extension of time for seeking a review of lawyers’ charges, consistentwith the values which underlie the six month rule. Is there some explanation as to why, in six months, the Applicants could not haveformed and stated their concerns. [49] I have already canvassed the Applicants’ evidence regarding the circumstances that led to the filing of the Appointments. Insum, Mr. McGee testifies to general concerns arising sometime in 2009 about the amount of lawyers’ charges being incurred in thismatter.

This appears to have led to a review sometime in 2009 by members of the Golf Course Group of whether to continue to pursuecomplaints with the ARB about the City’s continuing assessment methodology. That entailed reviewing Brownlee’s accounts which, hesays, gave rise to concerns about the appropriateness of Brownlee’s charges. Specifically, Mr. McGee’s observes that that the accountsdo not reflect that the issues for assessment years covered by the later hearings were the same as those on arising on the earlier appeals,and that nearly all of Mr. Sjolie’s time on the file was recorded in whole hour increments. Mr.

McGee also questions the necessity ofhaving two senior lawyers on the file, although he acknowledges having no concerns as to the usefulness of having both of theminvolved. [50] Mr. Deeb’s evidence was that his concerns arose sometime in 2008, and pertained to the duration of the matter and theamount of money this matter was costing Country Club. He does not depose to specific concerns with the appropriateness of Brownlee’scharges. This is consistent with his affidavit evidence that “[Country Club] became increasingly concerned respecting the significant

legal fees being charged by Brownlee LLP” and that “[a]s a result, [Country Club] ultimately withdrew its involvement and refused further involvement in the [Golf Course Group] as of the end of February, 2010.” [ 51 ] I acknowledge that Mr. Deeb also deposes to Country Club’s desire to participate in a review of Brownlee’s accounts, and to his belief that Brownlee should answer “some questions” (which he does not particularize) in respect of those accounts. That is the extent of his evidence in support of this application. (While Mr. Deeb also deposes to his agreement with the contents of Mr.

McGee’s affidavit, he clarified under questioning (page 21, line 22 to page 24, line 10) that he has no personal knowledge of the specific concerns that Mr. McGee identifies regarding Brownlee’s accounts.) [ 52 ] Bearing in mind the Applicants’ obligation to explain the delay in seeking to bring Brownlee’s accounts before a reviewing officer, Mr. McGee’s and Mr. Deeb’s evidence poses two concerns. First, the Applicants’ failure to identify at an earlier point than 2009 the concerns Mr.

McGee now raises with Brownlee’s accounts; and, second, the lack of particularity in their account of the time period between identifying the concerns and filing their Appointments. [ 53 ] As to the Applicants’ failure to identify their concerns earlier than 2009, let me first dispose of Mr. McGee’s questioning of the necessity of having two senior lawyers on the file. Under questioning, Mr. McGee acknowledged that he was aware throughout Brownlee’s representation of the Golf Course Group that both Mr. Sjolie and Mr. Kosak were involved, and that he never asked why that was necessary.

If, therefore, this concern might have merit as a basis for reviewing Brownlee’s accounts (which I will address below), the Applicants have not advanced a good reason for their delay in seeking a review. This particular “concern”, of which Mr. McGee knew throughout the relationship with Brownlee but never raised, smacks of “laying in the weeds”. ( Samson Cree , para. 188.) It is unfair for the Applicants, having knowingly enjoyed the benefits associated with having two senior lawyers representing their interests, to then use that benefit as the basis for seeking an extension of time to review its cost. [ 54 ] Mr.

McGee’s concern that Brownlee’s accounts do not reflect that the issues for assessment years covered by the later hearings were the same as those on arising on the earlier appeals, are not, however, an instance of a client “laying in the weeds”. Mr. McGee’s uncontradicted affidavit evidence is that Brownlee made submissions on the Golf Course Group’s behalf to the ARB and MGB that the issues in respect of the assessments for the years 2007, 2008, 2009 and 2010 are the same.

Obviously, clients in the Applicants’ position must allow for the almost certain likelihood that each of the files corresponding to those years required consideration of some issues peculiar to a particular year. (For example, it appears from the time entries on File No. 78686-004 – “Assessment Appeals – 2009 Tax Year”, that some of the evidence on the 2009 ARB appeal was “new”.) It does not however seem unreasonable to expect that there would be a broad similarity of substantial issues among all the files, such that the cost of the appeals for the later years of 2009 and 2010 might, as Mr.

McGee’s affidavit suggests, be lower than those incurred in appealing the assessments for 2007 and 2008.

The suggestion here is that work that is at least partly duplicative should not have attracted consistently large (or, it appears, even larger) accounts. [ 55 ] Moreover, a review of the pertinent files (File No. 78686-004 – “Assessment Appeals – 2009 Tax Year”; and File No. 78686- 005 – “Edmonton Golf Courses 2010 Tax Assessment Year Complaints”) reveals that a basis for this concern, irrespective of whether it is ultimately a valid concern or not, would not have been evident until late 2009 and early 2010, respectively. [ 56 ] On File No. 78686-004 – “Assessment Appeals – 2009 Tax Year”, Brownlee’s account dated October 29, 2009 (for $67,871.73) appears to reflect mostly preparation for the ARB hearing on the 2009 assessment.

The next account (dated November 29, 2009, for $194,458.07) reflects mostly work done to prepare for and attend at the ARB hearing. The accounts of December 23, 2009 (for $80,710.52) and January 28, 2010 (for $32,025.00) reflect mostly preparation of the final and rebuttal arguments.

The few later accounts deal in part with reviewing the ARB’s decision and strategy development. [ 57 ] On File No. 78686-005 – “Edmonton Golf Courses 2010 Tax Assessment Year Complaints”, Brownlee’s second and third accounts (dated March 30, 2010 for $16,174.94, and April 29, 2010 for $38,446.09) reflect in part work done to prepare for assessment appeals and to prepare the complaints for the ARB. [ 58 ] This particular concern would therefore not have arisen until, at the earliest, delivery of the accounts dated October 29, 2009 through January 29, 2010 (in respect of the appeal for the 2009 tax year) and March 30, 2010 and April 29, 2010 (in respect of the appeal for the 2010 tax year).

Brownlee submits that emails between Mr. McGee and Mr. Deeb from November 23 and 27, 2009 (“Here is the latest invoices gentlemen, not a pretty sight – this needs to end soon!”; “Attached are the invoices for November 2009 legal services (ouch)”) show that legal costs were “front and center for consideration by members of the Group over a long period.” Mr. Deeb’s evidence about concerns going back to 2008 affirms this.

This evidence, however, only suggests a concern about the overall expense of pursuing this matter against the City, and not about the appropriateness of Brownlee’s charges. [ 59 ] I must also consider, however, the lack of particularity in the Applicants’ account of the time period between identifying this concern about the cost of possibly duplicative work and filing their Appointments. As noted, Mr. Deeb’s evidence does not provide any evidence about the timing of concerns at all. And, Mr.

McGee’s evidence gives no indication of why it took from January or February 2010 until September for Lewis Estates and Jagare Ridge to file an Appointment for Taxation. The Applicants submit that emails among the participants in the Golf Course Group in 2010 (up to and including June 2010) demonstrate that concerns were building over time. I disagree.

While, again, those emails reveal that the participants were concerned about the legal costs of continuing to pursue the City, nothing in those emails suggests a concern about the appropriateness of Brownlee’s charges. [ 60 ] Accounting for the evidence regarding the Applicants’ delay in identifying the concerns they now advance respecting Brownlee’s accounts, and the delay in filing the Appointments after the concerns arose, I consider that Mr. McGee’s concern about the charges for the 2009 and 2010 appeals weighs slightly in favour of granting an extension. [ 61 ] As to Mr.

McGee’s final concern (relating to Mr. Sjolie’s time entries), Mr. McGee’s evidence that he had not noticed this pattern of time recording when he reviewed each individual invoice is not compelling, particularly in view of his evidence that his review included the

summary billing of the account showed the total time spent by each of the lawyers. Nearly all of the accounts show Mr. Sjolie’s

summary billings in whole hours. And, contrary to the Applicants’ submission that this would not stand out in any single account, it actually does so, because it appears along with the

summary billings of other lawyers whose time spent does not usually

appear in whole hours. And, even were the Applicants submission correct – that is, even if this pattern of time entries were not apparent from reviewing a single account as it arrived – it is inconceivable, given the number of participants in the Golf Course Group and the number and regularity of Brownlee’s accounts, that this pattern of time entries would not have become apparent to them within multiple billing cycles.

(4) Prejudice [ 62 ] Brownlee submits that the delay itself is prejudicial, and relies upon this statement of our Court of Appeal in Ravvin Holdings Ltd v Ghitter , 2008 ABCA 208 at para 37 (cited by Rooke ACJ in Samson Cree at para. 191): [W]here the court finds inordinate delay, that delay itself will be prima facie evidence of serious prejudice sufficient to satisfy the applicant's burden of proof unless other evidence exists that raises a legitimate doubt about the existence of that prejudice that can be attributed to the delay. [ 63 ] The Court of Appeal in Ravvin Holdings had cited its own prior decision in Volk v 331323 Alberta Ltd , 1998 ABCA 54 at para. 21 , where the Court of Appeal also said: The presumption may lead to dismissal unless there is evidence that at least raises a legitimate doubt about the existence of serious prejudice to the applicant attributable to the delay.

In the absence of such evidence, the delay alone is sufficient proof of serious prejudice to warrant dismissal for want of prosecution. [ 64 ] In short, a rebuttable presumption of prejudice arises in the face of inordinate delay. Two issues arise from this: first, whether the Applicants’ delay was inordinate; and, second, whether they have rebutted the presumed prejudice to Brownlee. [ 65 ] In Samson Cree (at para. 201), Rooke ACJ held that, generally, a review of lawyers’ charges initiated within the two year limitation period is not prejudicial.

This necessarily means that, in Rooke ACJ’s view, a delay of less than two years is not inordinate. The Associate Chief Justice relied upon the decision of Slatter J (as he then was) in Sharma , where he said (at para. 36 ): The purpose of a statute of limitations is to prevent the prosecution of stale claims. The principle is that persons with claims should not sleep on them, and if they do sleep on them then the claims will be barred.

Potential defendants are entitled to know that, after a certain period of time, dated claims will not be pursued against them, and they can conduct their affairs accordingly: … James H. Meek, Jr. Trust v. San Juan Resources Inc. ., [2005] A.J. No. 1754, 2005 ABCA 448 at para. 37 . Once a client is served with an Appointment for Taxation, the client knows that the lawyer is seeking payment. The Appointment starts a chain of events leading to a remedial order. Taxation is a "civil procedure".

As long as the Appointment is issued within two years of the original debt, then the claim is not seen as being stale by the law of limitations. The mere fact that the enforcement proceedings are started by an Appointment for Taxation, as opposed to a Statement of Claim, should not make any difference. The lawyer has commenced enforcement of the claim within the period provided for by the limitations statute, and the client is aware within that period that the claim is being advanced. The purposes of the Limitations Act are met.

There is nothing in the wording of the Act to require a proceeding commenced by a more formal or traditional process. [ 66 ] With great respect to Rooke ACJ, I do not take this passage from Slatter J’s reasons as speaking of prejudice, but rather of whether the taking out of a Notice for Appointment of Taxation is a remedial order within the meaning of the Limitations Act , and is therefore subject to the two year statutory limitation period. [ 67 ] If I am wrong about that, I nonetheless find myself in respectful disagreement with the general statement in Samson Cree that a review of lawyers’ charges initiated within the two year limitation period is not prejudicial.

It must be remembered that the Limitations Act already precludes a review of lawyers’ charges incurred more than two years prior to the client seeking a review. ( Sharma , at paras. 33-36 ). If, therefore, prejudice is a factor to be considered on an application to extend the time for reviewing a lawyer’s charges (and Poundmakers Lodge , Prophet River and Samson Cree state that it is), then it must contemplate that such prejudice will always arise within the two year statutory limitation period.

Otherwise, any consideration of prejudice would be otiose. [ 68 ] Was the Applicants’ delay here inordinate? [ 69 ] As I have already observed, the length of the delay varies with each of Brownlee’s accounts. In my judgment, the Applicants’ delay in respect of the accounts sent in connection with the 2009 and 2010 appeals cannot reasonably be characterized as inordinate.

In the absence of compelling reasons for the delay in respect of the 2007 and 2008 appeals, however, the delay in seeking a review of those earlier matters is inordinate. [ 70 ] That said, the evidence before me (and, in particular, the correspondence between the Applicants’ counsel and Brownlee) is that all the files – including the files for the 2007 and 2008 appeals – remain in Brownlee’s custody.

This satisfies me that Brownlee is no less able to address the merits of the accounts it rendered before the reviewing officer than it would be had the Applicants sought a review within the six month period stipulated by Rule 647 . Even in respect of those accounts where the Applicants’ delay was inordinate, I find that they have rebutted the presumed prejudice to Brownlee. [ 71 ] In the result, there is no prejudice to Brownlee in granting an extension.

(5) Evidence of Overcharging [ 72 ] This factor, which as mentioned was emphasized by Burrows J in Thistle , requires me to consider whether there is evidence that might merit a finding of overcharging, such that it is just that the accounts be reviewed. The Applicants emphasize, in keeping with Burrows J’s direction in Thistle (at para. 26 ), that they are not seeking from me a determination of whether Brownlee’s accounts are reasonable or not, but the opportunity to have a review officer make that determination.

[ 73 ] The Applicants submit that there is evidence before me that weighs in favour of granting an extension, specifically the whole hour increments in Mr. Sjolie’s recorded billings and the increasing lawyers’ charges for work on the appeals for 2009 and 2010 that ought to have been, in part, duplicative. They also submit that it is significant that Brownlee has not provided an explanation (although they do not ask that I draw an adverse inference). [ 74 ] Brownlee submits that evidence merely suggestive of overcharging is insufficient to weigh in favour of granting an extension.

It draws my attention to Sharma where (at paras. 216-219 ) Slatter J raised the question of the extent to which overcharging must be shown to have occurred, citing Re Thompson (1867), 2 Chy Chmbrs 100: “in the absence of gross overcharge …, the court will not open up and tax a solicitor’s bill which has been rendered several years and treated as paid ….” Brownlee also argues that no significance ought to be ascribed to the absence of an explanation for Mr.

Sjolie’s time entry increments or for its charges for the 2009 and 2010 appeals. [ 75 ] Re Thompson ’s threshold of “gross overcharge” does not bind me, nor do I take it as stating the law of Alberta. The central question for the purpose of considering this factor is not how much a client may or may not have been overcharged, but whether there is evidence that might merit a finding of overcharging.

I agree with Brownlee, however, that this process (of the Applicants seeking an extension of time) entitles Brownlee to remain silent without fear of an adverse inference as to the merits of the complaint about overcharging. That silence, however, requires the Court to apply this factor without the benefit of Brownlee’s explanation. I agree with Brownlee’s submission that Mr.

Sjolie’s time entries are not necessarily suggestive of overcharging (“[i]ndeed, more time may have been spent than was recorded.”) This does suggest, however, that the time entries might support a finding that the accounts might not always based, as the parties agreed they would be, upon time spent. More compelling, however, is Mr.

McGee’s evidence with respect to the charges for the 2009 and 2010 accounts, and in particular his uncontradicted statement that Brownlee LLP made submissions to the ARB and to the MGB that the issues for all the assessment years were the same, is some evidence which might support a finding of overcharging. This weighs somewhat in favour of granting an extension.

(6) Relationship [ 76 ] Does the evidence of the entire relationship between Brownlee and the Applicants support an extension of time? [ 77 ] As a starting point, I must bear in mind that the relationship under consideration here is the lawyer-client relationship. As such, it presupposes that some degree of trust is reposed in the lawyer (although the degree will differ among lawyer-client relationships. See Galambos v Perez , 2009 SCC 48 at para. 38 ). Indeed, that trust is why clients such as the Applicants retain lawyers. ( Adams v Law Society of Alberta , 2000 ABCA 240 at para. 10 .) [ 78 ] Rule 647 (

d) of the Old Rules , and its successor Rules 10.10(2) and 13.5(2)(

a) of the Rules of Court , therefore presuppose that the relationship between the parties is characterized by the client’s trust in the lawyer’s qualities, including his or her integrity. This characteristic must inform any analysis under these particular rules; that is, the relationship is inherently built upon the client’s trust in the lawyer’s integrity.

At the same time, because this characteristic is inherent (albeit to differing degrees) in every lawyer-client relationship, I must in weighing this factor also look to the qualities of this particular lawyer-client relationship. [ 79 ] The Applicants emphasize that Brownlee was acting for a large group of participants in the Golf Course Group, and that Mr. McGee’s role – in addition to attending some meetings with Brownlee – was to receive Brownlee’s accounts and to arrange for payment by Melcor and for reimbursement from all the participants.

It was not, the Applicants submit, a lengthy and personal relationship allowing for a high degree of oversight (which would distinguish it from, for example, the lawyer-client relationship in Samson ). [ 80 ] Brownlee submits that the clients were sophisticated and conducted their relationship with Brownlee through a well-organized steering committee. Their method of handling Brownlee’s accounts reflects, Brownlee argues, a high degree of sophistication.

Brownlee notes that the accounts reveal that the clients worked closely with their lawyers through frequent meetings during the entire course of the relationship, and in providing testimony at the hearings. [ 81 ] The Applicants’ essential response is that a client’s “sophistication”, as a consideration in evaluating the lawyer-client relationship, weighs in their favour. That is, their sophistication – far from suggesting that they ought to have identified any problem much earlier – explains why the concerns that Mr.

McGee identifies in Brownlee’s accounts would not have come to light until late in the relationship, since sophisticated clients would take the quality of service as a given, and only be concerned with actual cost. [ 82 ] I am not persuaded that the Applicants’ “sophistication” is of much assistance in weighing the factor of the parties’ relationship. The fact that Brownlee’s contact with the clients was through a representative group is a consideration that weighs in favour of allowing an extension, although Mr.

McGee’s evidence relating to the handling of Brownlee’s accounts shows that all the clients were regularly kept abreast of Brownlee’s work on their behalf. I agree with Brownlee that its relationship with the Applicants afforded them ample opportunity throughout their relationship not only to identify concerns, but to raise them with Brownlee. [ 83 ] This factor weighs against allowing an extension.

Decision [ 84 ] Taking all the foregoing into account, and balancing all the factors and the legitimate competing interests of both the Applicants and Brownlee, I conclude that the interests of justice and of public confidence in its administration are best served by exercising my discretion to permit a review of Brownlee’s accounts relating to preparation for and the hearing of the appeals of the City’s 2009 assessment back to and including Brownlee’s account dated October 29, 2009, and of Brownlee’s accounts relating to the City’s 2010 assessment. [ 85 ] To be clear, I am extending under Rule 13.5(2)(

a) the Applicants’ time for seeking review of Brownlee’s charges by (in the case of Lewis Estates and Jagare Ridge) five months and (in the case of Country Club) six months in respect of File No. 78686-0004 –

“Assessment Appeals – 2009 Tax Year” and File No. 78686-005 – “Edmonton Golf Course 2010 Tax Assessment Year Complaints”. [ 86 ] I add two additional points. First, while some accounts rendered under another file (File No. 78686-003 – “2007 & 2008 MGB Appeal”) also fall within the time period covered by the extension of time, I decline to apply the extension of time to any accounts under that file, as Mr.

McGee’s concerns regarding duplication of work did not implicate the work done on the MGB appeal in respect of the 2007 and 2008 assessment years. (Further, Lewis Estates and Jagare Ridge are already entitled to review the accounts on that file dated March 30, 2010 and April 29, 2010). [ 87 ] Secondly, in limiting the extension to the time after and including the account dated October 29, 2010, I recognize that all legal services provided on the 2009 assessment matter (including work done prior to October 2009) might be broadly characterizable as “preparation for” the appeal. (Indeed, this is why I have extended the permissible review to Brownlee’s legal services provided on the 2010 assessment matter, even though none of that work appears from Brownlee’s accounts to have involved a hearing.) My decision to confine the extension as I have, however, also takes into account the extension of time entailed, the final nature of the accounts, the specific concern identified by Mr.

McGee regarding Brownlee’s submission regarding similarity of issues and the related possibility of duplicative work, the entries on the individual accounts (which reveal billings for hearing preparation beginning in early October 2009) and the fact that the bulk of the charges began with the October 29, 2009 account. Taken together, these considerations in my view support the limited scope of this extension of time. IV.

Delivery of the Client Files [ 88 ] As mentioned, the Applicants also seek an order compelling Brownlee to provide the complete files relating to these matters. [ 89 ] The Applicants say, first, that Brownlee, having engaged in a multiple representation, cannot treat as confidential material information received from one client as against another client. (See the commentary to Rule 2,

Chapter 6 of the Law Society of Alberta’s Professional Code of Conduct ). The Applicants also say that the file materials belong to them, since documents prepared by the solicitor for the benefit of the client, and which can be said to have been paid for by the client, belong to the client. (Graham J. Graham-Green, Cordery’s Law Relating to Solicitors , 7 th ed., at 99-101.) [ 90 ] Brownlee does not dispute the Applicants’ position, but submits that production of the files is premature and unnecessary, pointing to Rule 10.17(1), which provides: For the purpose of conducting a review under this Division, a review officer may do all or any of the following: … (

b) direct the production of records; …. [ 91 ] Brownlee’s position is that, as a practical matter, it would be better to leave it to review officer to determine what documentation may be needed, particularly where the Applicants have not obtained leave of the Court to proceed with review. [ 92 ] Even apart from the fact that I have now permitted a review of some of the accounts, I disagree with Brownlee’s submission.

If the concern is one of practicality, it would be better to ensure that the Applicants have the file materials in advance of the review rather than have them attend at the review only to obtain an order for production, and then have to adjourn the review to a later date. Moreover, the review officer’s authority under Rule 10.17(1)(

b) to direct the production of records is intended to empower the review officer to order production, and not to preclude the Court from doing so. [ 93 ] Further, the Applicants’ submissions are correct. Materials prepared for their benefit, and for which they have paid, are theirs. [ 94 ] Quite reasonably, the parties’ submissions do not address the scope of production in the event that I were to permit review (as I have done here) of accounts pertaining to some, but not all, of the files.

It might be argued that, because that I am permitting review only of certain accounts issued under File No. 78686-004 – “Assessment Appeals – 2009 Tax Year” and File No. 78686-005 – “Edmonton Golf Courses 2010 Tax Assessment Year Complaints”, the scope of required production should be confined to those files. [ 95 ] In my view, however, all the files should be furnished to the Applicants. The stated basis for Mr.

McGee’s concern (or at least the concern which weighs in favour of granting an extension of time for seeking a review) was grounded on what he understood to be a commonality of issues among the different appeals. Consideration of whether the 2007 and 2008 appeals, compared to the 2009 and 2010 appeals, were apples to apples or apples to oranges necessitates production of the files relating to the 2007 and 2008 appeals (including the MGB appeal for those years) as well as the 2009 and 2010 appeals. V. Conclusion I therefore order that: 1.

Brownlee LLP shall provide to Lewis Estates Communities Inc., Jagare Ridge Communities Inc. and Country Club Tour Corp. the following files, including all memoranda, note, drafts, research completed and emails: a. “Assessment Appeal (2007 Tax)” – File No. 78686-001,

b. “Assessment Appeal (2008 Tax)” – File No. 78686-002, c. “2007 & 2008 MGB Appeal” – File No. 78686-003, d. “Assessment Appeals – 2009 Tax Year” – File No. 78686-004, and e. “Edmonton Golf Courses 2010 Tax Assessment Year Complaints” – File No. 78686-005; 2. Lewis Estates Communities Inc. and Jagare Ridge Communities Inc. may submit before the review officer for review Brownlee’s accounts issued under the file “Assessment Appeals – 2009 Tax Year” – File No. 78686-004 on the following dates: a. October 29, 2009, b. November 27, 2009, c. December 23, 2009, d. January 28, 2010, e. February 25, 2010, f.

March 30, 2010, and g. April 29, 2010; 3. Country Club Tour Corp. may submit before the review officer for review Brownlee’s accounts issued under the file “Assessment Appeals – 2009 Tax Year” – File No. 78686-004 on the following dates: a. October 29, 2009, b. November 27, 2009, c. December 23, 2009, d. January 28, 2010, and e. February 25, 2010;

4. that Lewis Estates Communities Inc. and Jagare Ridge Communities Inc. may submit before the review officer for review Brownlee’s accounts issued under the file “Edmonton Golf Courses 2010 Tax Assessment Year Complaints” – File No. 78686-005 on the following dates: a. February 25, 2010, b. March 30, 2010, and c. April 29, 2010; and 5.

Country Club Tour Corp. may submit before the review officer for review Brownlee’s account issued under the file “Edmonton Golf Courses 2010 Tax Assessment Year Complaints” – File No. 78686-005 on February 25, 2010. [ 96 ] There was divided success on the principal matter of an extension of time for a review. While the Applicants were successful in obtaining production of the files, their application for an extension of time was necessitated by their delay in seeking a review. I therefore also order that each party will bear its own costs. Heard on August 9, 2013. Dated at Edmonton, Alberta on September 6, 2013.

Russell Brown J.C.Q.B.A. Appearances: Todd A. Shipley Reynolds Mirth Richards & Farmer LLP for the Applicants Daniel Hagg, Q.C. for the Respondent

_______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Russell Brown _______________________________________________________ In paragraph 74, the name Rooke ACJ has been changed to Slatter J.