Ashraf v Zinner Law Office, 2013 ABQB 730

Court of Queen ’ s Bench of Alberta Citation: Ashraf v Zinner Law Office, 2013 ABQB 730 Date: 20131210 Docket: 1201 15851 Registry: Calgary Between: Shidan Ashraf Appellant - and - Zinner Law Office Respondent _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice W.P. Sullivan _________________________________________ ______________ [ 1 ] This is an appeal from a review officer’s assessment of a lawyer’s accounts pursuant to the Alberta Rules of Court , Alta Reg 124/2010 [ Rules ].

The questions on appeal are whether the Review Officer committed a reversible error in his findings of fact or application of the factors used to assess the reasonableness of lawyers’ accounts. Background Facts [ 2 ] In April 2012, the Appellant, Shidan Ashraf, retained the Respondent, Zinner Law Office (“Zinner Law”), to provide legal

services in relation to a potential lawsuit against his employer, SNC-Lavalin (“SNC”), for injuries allegedly caused by the abusive conduct of SNC management personnel. [ 3 ] Zinner Law is operated by Gabor I. Zinner, a sole practitioner. The written retainer agreement signed by Mr. Ashraf and dated April 26, 2012 (the “Retainer Agreement”) outlines that “[i]t is anticipated that most of the work in the [contracted for] matter will be performed or supervised by Gabor I.

Zinner.” However, the Retainer Agreement goes on to “reserve the right to assign other lawyers in our office to perform legal services if, in our judgment, it becomes necessary or desirable.” The Retainer Agreement states further that Zinner Law “consists of independent associates”. It also provides hourly rates for Mr. Zinner, articling clerks, legal assistants and support staff, and a range for other lawyers “whom [Zinner Law] expect[s] will be involved in [Mr. Ashraf’s] case.” Mr. Zinner admitted to the Review Officer that the last time Zinner Law hired an articling student was “years ago”: Transcript,

Part 2, p 12, l 16. [ 4 ] Mr. Zinner commenced work on Mr. Ashraf’s file soon after Mr. Ashraf paid the $5,000 retainer fee required under the Retainer Agreement. Difficulties between the two of them began shortly thereafter. [ 5 ] On July 16, 2012, Mr. Zinner drafted an opinion letter outlining what he understood to be the key legal and evidentiary issues in Mr. Ashraf’s potential claim against SNC. In the letter, Mr.

Zinner concluded, inter alia , that it would be futile to commence an action without a “solid medical opinion letter establishing the causal connection between SNC’s conduct and the disability”. [ 6 ] Mr. Ashraf responded to the opinion letter with critical comments and requested that modifications be made. For example, Mr. Ashraf pointed to medical opinion letters in the materials he provided to Mr. Zinner, which he believed established the requisite causation. Communications regarding the contents of the opinion letter went back and forth between Mr. Ashraf and Mr. Zinner for days.

In the final opinion letter, dated July 19, 2012, Mr. Zinner included quotes from three medical opinions and omitted his earlier suggestion that a claim would be futile without solid medical opinion establishing causation. He did emphasize, however, that to succeed at trial, causation would have to be established on a balance of probabilities. [ 7 ] Mr. Zinner and Mr. Ashraf had similar disagreements over the contents of the Statement of Claim. This led to multiple drafts and an increase in length from seven to ten pages. The Statement of Claim was eventually filed on July 31, 2012. [ 8 ] Mr.

Ashraf was billed for Mr. Zinner’s work up to and including filing and service of the Statement of Claim in two invoices, respectively totalling $5,953.50 and $7,007.94 (the “impugned accounts”). The respective dates of the impugned accounts were July 18, 2012 and August 2, 2012. All billable work listed in the impugned accounts was charged at Mr. Zinner’s rate of $525 per hour. The vast majority of Mr. Zinner’s billed time consisted of meetings and correspondence with Mr. Ashraf, oral advice, review of materials that Mr.

Ashraf provided, drafting multiple versions of the opinion letter and Statement of Claim, and review of Mr. Ashraf’s proposed changes to these two documents. [ 9 ] Upon receiving the impugned accounts, Mr. Ashraf expressed to Mr. Zinner his displeasure with the amounts charged. The two then met to discuss the charges on August 15, 2012. A few days after the meeting, on August 20, Mr. Ashraf sent Mr.

Zinner an email in which he stated: As discussed in your office last Wednesday, a maximum of 3 to 4 hours by yourself and 4 to 5 hours by a legal assistant would have been sufficient to review and discuss the case and write your letter of July 20th reflecting your assessment of the situation based on your review of my documentations and our meeting. My documentations were not many and yet they were well organized and indexed for a admin or legal assistant to search for the main issues of the case.

Likewise the statement of claim would have required not more than 1 to 2 hours by yourself and 2 to 3 hours by a legal assistant. I remember the day you invited me to write the statement together, I asked you how long it takes to do so and you said it would be quick and about a hour. [ 10 ] Mr. Zinner does not appear to have responded to this email. In early September, Mr. Ashraf paid Mr. Zinner $3,675. The parties emphatically disagree about the intention of this payment. [ 11 ] At or around this same time, Mr. Ashraf demanded a modified fee arrangement going forward, to be based on a “semi- contingency” model.

If Mr. Zinner declined, Mr. Ashraf intended to terminate the services of Zinner Law. Mr. Zinner asked for some time to consider. In the meantime, however, Mr. Ashraf and Mr. Zinner continued to communicate regarding the claim. [ 12 ] During this same time period, counsel to SNC confirmed via fax to Mr. Zinner that they were reviewing the Statement of Claim and preparing a Statement of Defence. Counsel to SNC asked, however, that Mr. Zinner grant a brief extension of time to defend and not move to note SNC in default, or take any other steps, without reasonable advance notice. Mr.

Zinner did not read this fax for approximately three weeks after receiving it. [ 13 ] In late September, SNC filed an application to have Mr. Ashraf’s claim barred on the basis that it fell under Workers’ Compensation Board (“WCB”) jurisdiction. [ 14 ] On October 9, 2012, Mr. Ashraf terminated the services of Zinner Law. Mr. Zinner never billed Mr. Ashraf, and does not intend to bill him, for work done on his behalf following the filing and service of the Statement of Claim. Based on the contracted rate, Mr. Zinner otherwise would have charged Mr. Ashraf just under $3,000 for this work.

The Review Hearing [ 15 ] On December 13, 2012, Mr. Ashraf filed an Appointment for Review of Retainer Agreement and Lawyer’s Charges in relation to the impugned accounts. [ 16 ] Mr. Ashraf made submissions on a variety of issues throughout the review hearing and in his written argument. Specifically,

he argued that: 1. Mr. Zinner spent an inordinate amount of time drafting and revising the opinion letter and Statement of Claim. This was the result of errors and the omission of important details. Consequently, unnecessary billed time was spent discussing multiple drafts of both documents and making revisions: Ashraf, Appointment for Review of Retainer Agreement/Lawyer’s Charges, item 7 of exhibit A, para 2 [Ashraf, Review Submissions]; Transcript,

Part 1, p 8, ll 7-19, 39-41, p 9, ll 1-10, p 10, ll 16-30,

Part 2, p 24, ll 7-9, p 25, ll 1-6. 2. He wrote a considerable portion of the Statement of Claim and there were fewer substantively different versions than Mr. Zinner suggested: Transcript,

Part 1, p 20, ll 31-41, p 21, ll 4-14, p 22, ll 7-41, p 24, ll 23-32,

Part 2, p 23, ll 35-41, p 24, ll 1-2, 36-40. 3. Mr. Zinner breached the Retainer Agreement, and Mr. Ashraf’s request, by failing to allocate any work on the file to a junior lawyer or legal assistant: Transcript,

Part 1, p 10, ll 10-16, p 17, ll 25-36, p 18, ll 1-10,

Part 2, p 25, ll 18-27. 4. He and Mr. Zinner agreed that the payment of $3,675 would constitute full and final payment for the impugned accounts. $3,675 was agreed upon based on five or six hours billed at Mr. Zinner’s rate of $525 per hour and six or seven hours at the legal assistant rate outlined in the Retainer Agreement: Transcript,

Part 1, p 11, ll 3-5, 15-17, 23-25, p 15, ll 8-32, p 18, ll 36-38,

Part 2, p 22, ll 26-32. Mr. Zinner’s failure to respond to the August 20th email confirms he was in agreement: Transcript,

Part 1, p 14, ll 21-23, p 16, ll 11-13,

Part 2, p 22, ll 14-16, 20-21. 5. Mr. Zinner’s unbilled work was not a favour; rather, Mr. Zinner improperly continued work on the file without responding to the request for a new fee agreement: Transcript,

Part 1, p 4, ll 5-12, 16-18, p 10, ll 37-41, p 11, ll 1-9, p 15, ll 26-32,

Part 2, p 25, ll 38-4. 6. Mr. Zinner failed to anticipate and advise on the possible jurisdiction of the WCB, even after SNC raised it as an issue: Ashraf, Review Submissions, item 7 of exhibit A, para 1. 7. Mr. Zinner inexcusably delayed in arranging service of the Statement of Claim on SNC and in reading the fax from counsel to SNC: Transcript,

Part 1, p 9, ll 14-21, 26-30. 8. Broadly, Mr. Zinner handled the file dishonestly and unprofessionally: Transcript,

Part 2, p 26, ll 21-22. [ 17 ] Mr. Zinner responded and made the following additional submissions: 1. The opinion letter and Statement of Claim took so long to finalize based on justifiable caution and Mr. Ashraf’s conduct. Specifically, the lengthy process was due to:

(1) Mr. Ashraf’s fastidiousness, meticulousness, high maintenance and obsessive behaviour; (2) the need to ensure Mr. Ashraf understood everything, especially the risks of proceeding; (3) the need to address preliminary issues regarding the limitation period, constructive dismissal, and whether a civil claim would lead to retaliatory termination of Mr. Ashraf’s employment and benefits; (4) excessive time spent clarifying Mr. Ashraf’s expectations and discussing appropriate content for the Statement of Claim; and (5) the importance of getting the Statement of Claim “right” given the quantum of alleged damages: Transcript,

Part 2, p 3, ll 34-41, p 4, ll 1-14, 23-41, p 5, ll 1-19, 21-23, 39-40, p 6, ll 26-40, p 7, ll 1-7, p 19, ll 1-10. 2. The medical opinions excluded from the initial opinion letter might have been sufficient to warrant a claim, but were not necessarily sufficient to establish causation on a balance of probabilities. For example, some simply referred to Mr. Ashraf’s own assertions to physicians: Transcript,

Part 2, p 6, ll 4-24. 3. He authored the Statement of Claim, though several paragraphs were inserted on Mr. Ashraf’s insistence: Transcript,

Part 2, p 4, ll 7-14. 4. The physical premises of Zinner Law make it obvious that he is the only lawyer working in that office. The clause in the Retainer Agreement that provides rates for junior lawyers and articling students, among others, is based on past composition of the firm and hiring external assistance: Transcript,

Part 2, p 11, ll 24-40, p 12, ll 1-16, p 13, ll 3-5, 9-10, 14-15. 5. There was never any agreement that the payment of $3,675 was to constitute full and final payment for the impugned accounts. Such a miniscule amount would have been “demeaning” given the time and effort he dedicated to the file: Transcript,

Part 2, p 9, ll 25- 37, p 28, ll 7-13. 6. The unbilled work was done based on Mr. Ashraf’s continued instructions on the file, despite Mr. Ashraf’s demand for a modified fee agreement: Transcript,

Part 2, p 7, ll 33-38, p 16, ll 11-14. 7. The factors used to assess the reasonableness of a lawyer’s fees support certifying the impugned accounts. For one, the case was the most urgent matter in Mr. Ashraf’s life, as evident from his prompt responses to emails. Further, the claim was for $5 million and Mr. Ashraf treated it as a matter of principle: Transcript,

Part 2, p 14, ll 29-38. Also, a considerable amount of work was required based on the magnitude and financial risks to Mr. Ashraf should the claim lack merit: Transcript,

Part 2, p 15, ll 25-29. Finally, Mr. Ashraf was a “high maintenance client”: Transcript,

Part 2, p 16, l 8. The Review Officer’s Decision [ 18 ] The Review Officer began his decision by looking to the Retainer Agreement, finding that Mr. Ashraf agreed to Mr. Zinner’s fee and knew that hours spent on the file by Mr. Zinner would be charged at $525 per hour. He reasoned further that this was Mr. Ashraf’s “expectation”, regardless of the reference to associates and assistants, among others, in the Retainer Agreement: Transcript,

Part 2, p 30, ll 2-6. [ 19 ] Next, he found that the type of work Mr. Zinner did on the file was exactly what Mr. Ashraf hired him to do. For example, the opinion letter was specifically contracted for. Further, the Review Officer found the billed work to have been of the type senior counsel

is generally responsible for. In particular, it takes senior counsel to know the law (such as the area to sue under) and “how these thingsplay out”. In contrast, Mr. Zinner could not, for example, have justified billing at $525 per hour for standing in line to file the Statementof Claim: Transcript,

Part 2, p 30, ll 6-29. [20] In regards to drafting the Statement of Claim, the Review Officer found that it was “worked on and worked on and workedon”. The Review Officer reasoned that this was not a “standard” Statement of Claim, and even these can take three to four hours to draft:Transcript,

Part 2, p 30, ll 31-38. [21] The Review Officer then found the August 20, 2012 email to have been Mr. Ashraf’s own words regarding the amount oftime he believed Mr. Zinner and a legal assistant should have spent on the file for the billed work in the impugned accounts. The ReviewOfficer did not believe Mr. Zinner had a legal assistant that could do the type of work Mr. Ashraf was suggesting. Moreover, it was Mr.Zinner who drafted the opinion letter and Statement of Claim, and did other legal work: Transcript,

Part 2, p 31, ll 3-33. [22] The Review Officer went on to state that had Mr. Zinner not declined to bill for the work done after filing and serving theStatement of Claim, he would have “taken a pretty deep scalpel to [this] work”. Additionally, the Review Officer noted that Mr. Zinnerappeared to have taken off a further $1,500 worth of billed hours from Mr. Ashraf’s account: Transcript, p 31, ll 35-41, p 32, ll 1-4. [23] Looking to the urgency of the matter, the Review Officer found that it was indeed urgent due to the limitation question. Healso found it to be a complex case, as evident from the WCB issue.

The Review Officer suggested further that experienced counsel wasneeded in this matter, and in his opinion, Mr. Zinner was experienced. Finally, he pointed out that while Mr. Ashraf had his ownthoughts, he was working with a lawyer, whose time has a cost: Transcript,

Part 2, p 32, ll 5-13. [24] In

summary, the Review Officer found that the impugned accounts were within the range of reasonableness: Transcript, Part2, p 32, l 32. Standard of Review [25] Pursuant to rule 10.26(1) of the Rules, Mr. Ashraf appeals the Review Officer’s decision to this Court. To begin with, it isimportant to note that an appeal from a review officer’s decision is an appeal “on the record of proceedings before the review officer”,not a de novo hearing: Rules, r 10.26(2). “Record of proceedings” is exhaustively defined in rule 10.26(3) as: (

a) Form 42 served under rule 10.13(2), (

b) the material the parties filed to support or oppose, or that was required for, the review, (

c) the transcript of the proceedings before the review officer, unless the judge waives this requirement, and (

d) the review officer’s certificate. [26] As Justice Yamauchi emphasized in Fraser Milner Casgrain LLP v Kristof Financial Inc, 2012 ABQB 359 at para 14[FMC] “[t]he Rules are clear. The parties must put their best case, including all materials on which they intend to rely, before the reviewofficer.” [27] The standard of review in an appeal from a review officer has been considered in several recent decisions.

In Repchuk vSilverberg, 2013 ABQB 305 at para 38 [Repchuk], Justice Tilleman summarized the standard of review as follows: 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]. (Emphasis in original). [28] More broadly, Justice Yamauchi stated in FMC at paras 16-18: [16] When one reviews the many cases that deal with appeals from decisions of review officers (or taxing officers, as they wereformerly known), there are certain principles that emerge.

A review officer’s decision is entitled to curial deference: 509703 at para 11.Why? A review officer’s “duties commonly call for him to do this type of vetting because of the nature of his position and the expertisethat he gathers in carrying out those duties”: Carr & Co v. Markdale Ltd. (1996), (AB KB), 46 Alta LR (3d) 324 atpara 20 (QB) [“Carr & Company”]. See also McLennan Ross v. Mercantile Bank of Canada (1988), 1988 ABCA 224 , 59Alta LR (2d) 369 at para 6 (CA) [“McLennan Ross”].

The Alberta Court of Appeal in McLennan Ross went on to say that, “the taxingofficer's function is a specialized one and he may have to bring his own experience and expertise to bear” (at para 12).

[17] Curial deference, however, is not absolute. A court hearing an appeal from a review officer’s decision may interfere if the reviewofficer “operated on a wrong principle and thereby fell into error”: McLennan Ross at para 6, citing Cape Breton Landowners v. StoraKopparbergs Bergslags Aktiebolag (1983), (NS CA), 33 CPC 1, 146 DLR (3d) 369, 58 NSR (2d) 193, 123 APR(NSCA); Petty v. Bishop & McKenzie (1977), 2 AR 241 at 243 (QB). An error in principle may include a situation where the quantumthat the review officer awards is inordinately high or low: McLennan Ross ibid; 509703 at para 11.

Similarly, a court hearing an appealfrom a review officer’s decision may interfere if the review officer makes an error concerning the scope of the retainer agreement underwhich the parties are operating: Brown v. Snyder & Associates, 2004 ABQB 899 at para 20 [“Brown”]. Finally, a court hearing anappeal from a review officer’s decision may find that the review officer made a finding of fact that is clearly in error: Carter v.

Blake(1982), 41 AR 418 at para 7 (NWTCA) [“Carter”]. [18] With respect to the latter point, a court hearing an appeal from a review officer’s decision must exercise caution, and must notstep too far into arena of gathering evidence and weighing that evidence. As the court said in McLennan Ross at paras 11-12: I do not read R. 657 as giving the judge sitting on appeal a power to reassess or reweigh the material before the taxing officer. There aresome matters of discretion open to a taxing officer and open for review by the judge hearing the appeal, but not the assessment of avalue.

In making his assessment the taxing officer is not exercising a discretion, any more than the judge who fixes general damages isexercising a discretion. There are practical grounds for not making the hearing before the reviewing judge a de novo hearing. In the first place, the taxing officerwill often hear evidence and examine material which gives rise to questions of credit or weight.

A chambers judge cannot effectivelysubstitute his views on such questions. (Emphasis in original). [29] Additionally, a review officer’s decision may be interfered with if the review officer failed to consider the parties’ evidenceand representations made on the review: Sweetgrass First Nation v Rath & Company, 2013 ABQB 165 at para 27 [Rath]; Markdale Ltdv Carr & Co (1996), (AB KB), 197 AR 6 at para 17, 46 Alta LR (3d) 324 (QB) [Carr]. Position of the Parties on Appeal [30] Mr. Ashraf argues that the Review Officer made findings of fact that were in error and overlooked relevant facts. Mr.

Ashrafalso suggests the Review Officer erred in principle by misapplying the factors used to assess the reasonableness of lawyers’ accounts.Mr. Ashraf further submits that the Review Officer erred in law by declining to find that the parties entered into an oral agreementregarding the $3,675 payment. This third argument, however, is actually grounded in the Review Officer’s findings of fact, not hisunderstanding of contract law; thus, I will address it along with Mr. Ashraf’s other arguments regarding the Review Officer’s findings offact. [31] Mr. Zinner counters that Mr.

Ashraf has failed to demonstrate that the Review Officer committed a reversible error.Therefore, he seeks dismissal of the appeal and costs. Did the Review Officer Err in his Findings of Fact or Overlook Relevant Facts? [32] Mr. Ashraf alleges that the Review Officer made several errors of fact in reaching his decision, including: 1. finding that the time spent drafting and discussing the opinion letter and Statement of Claim was the result of a “negotiation”,rather than Mr. Zinner’s errors and redundant work; 2. ignoring Mr. Ashraf’s efforts in drafting the Statement of Claim; 3. not attaching any weight to Mr.

Zinner’s failure to anticipate or provide advice on the WCB issue, including his failure to draft theStatement of Claim to defend against the WCB argument; 4. ignoring Mr. Zinner’s failure to assign work to a junior lawyer, legal assistant, research lawyers, or other staff members; 5. accepting Mr. Zinner’s statement that it would have been obvious to Mr. Ashraf, based on the size of his office, that he was a solepractitioner; 6. failing to find that Mr.

Zinner billed for tasks a senior lawyer would generally delegate to other staff members (for example,secretarial work); and 7. disregarding the length of time it took Mr. Zinner to read and respond to the fax from counsel to SNC and the fact he noted SNC indefault contrary to earlier instructions not to take any steps without discussing it with them. [33] Mr. Ashraf also argues that the Review Officer erred by failing to find that Mr. Zinner’s conduct was “primitive”,“unprofessional”, “manipulative”, and “dishonest”. [34] It is apparent that much of Mr.

Ashraf’s argument is based on the Review Officer preferring Mr. Zinner’s version of the factsover his. To make such determinations, the Review Officer had to weigh evidence and make findings of credibility. This Court “cannoteffectively substitute [its] views on such questions”: McLennan Ross v Mercantile Bank of Canada, 1988 ABCA 224 , 86 AR311 at para 12, 59 Alta LR (2d) 369 (CA). As Justice Shannon succinctly stated in Condominium Plan No 911945 v Zavislake, 1998ABQB 160 at para 11, “[t]he taxation officer has a specialized function.

He has the opportunity to hear the evidence, examine material,make decisions on credibility and weight. A chambers judge hearing the appeal does not have such opportunity.” Indeed, weighingevidence and making findings of credibility is often necessary to determine the reasonableness of lawyers’ accounts: Brown v Snyder &Associates, 2004 ABQB 899 at para 17 [Brown].

[35] Whether the Court would have reached a different conclusion than the Review Officer is not the governing test: Brown atpara 23. Rather, the Review Officer must have committed a clear error or ignored relevant evidence or arguments. [36] The Review Officer spent several hours listening to the parties. Based on the filed materials and oral submissions, he madefindings of fact on a number of relevant issues. The Review Officer found the work that Mr. Zinner did on the file to have been of thenature a senior lawyer would typically do, regardless of any reference in the Retainer Agreement to junior lawyers or legal assistants:Transcript,

Part 2, p 30, ll 6-29. Further, he commented that even a “standard” statement of claim could take three to four hours, and thiswas not a standard statement of claim nor was it “lightly done”: Transcript,

Part 2, p 30, ll 31-38. Similarly, with regards to the opinionletter, he found it to have “become a matter of negotiation”: Transcript,

Part 2, p 30, ll 17-19. More broadly, he pointed out that Mr.Ashraf had his own thoughts, but he was working with a lawyer, and there was a cost to the lawyer’s time: Transcript,

Part 2, p 32, ll 5-13. [37] Mr. Ashraf has not pointed to any evidence that establishes that these findings met the threshold of being “clearly in error”,nor has Mr. Ashraf identified any relevant and persuasive evidence overlooked by the Review Officer. Thus, the Review Officer did notcommit a reversible error in these findings of fact. [38] I note further that there is no evidence (or insufficient evidence) on the record regarding a number of Mr. Ashraf’s otherarguments, such as Mr. Zinner providing incorrect legal advice regarding constructive dismissal, Mr.

Zinner lying about the number ofhours he spent working on the file and the items he was billing for, Mr. Ashraf’s discussions with other lawyers, the volume of materialMr. Ashraf provided to Mr. Zinner for review, whether Mr. Zinner actually hired a process server to serve SNC, and any discussionregarding charges for the initial meeting. Parties are required to put their “best case” forward in the review hearing: FMC at para 14. Because the evidentiary record is deficient, it is inappropriate to consider these issues on appeal.

It is also inappropriate to deal with Mr.Ashraf’s argument regarding the fax from SNC and subsequent noting in default, as these issues fall outside the scope of the impugnedaccounts. [39] With respect to Mr. Zinner failing to anticipate the WCB issue, this is really an alleged error in principle, as Mr. Ashrafsuggests it should have been considered when the Review Officer assessed the factors going to the reasonableness of a lawyer’saccounts. [40] The Review Officer’s most significant finding of fact that Mr. Ashraf challenges is the finding that there was never anagreement that the $3,675 paid by Mr.

Ashraf was to represent full and final payment of the impugned accounts. Mr. Ashraf incorrectlycharacterizes this as an error in law. However, the Review Officer did not suggest that an oral agreement was any less binding than awritten agreement. Rather, the Review Officer declined to find as fact that the parties ever agreed that the $3,675 would constitute fulland final payment of the impugned accounts. The Review Officer did find, however, that Mr. Ashraf’s email dated August 20th was hiswords only. Mr.

Ashraf has not pointed to any evidence that demonstrates the Review Officer was “clearly in error” in making hisfindings on this issue. Findings of fact on issues of this nature are incidental to a review officer’s assessment of a reasonable quantum forlegal services. Such incidental findings fall within the specialized expertise of review officers, and require a weighing of evidence andassessment of credibility unavailable to a chambers judge hearing an appeal. Thus, I decline to find that the Review Officer committed areversible error. [41] For the foregoing reasons, Mr.

Ashraf has failed to demonstrate that the Review Officer committed a reversible error of fact. Did the Review Officer Err in Principle? [42] Mr. Ashraf argues that the Review Officer erred in principle in his application of the criteria on which the reasonableness oflawyers’ fees are assessed.

He points to specific factors that he believes were incorrectly considered. [43] As Justice Tilleman stated in Repchuk at para 77: The traditional formulation is that an error in principle is proven by directly showing an error in principle or proving that the award is sohigh or low as to betray an error of principle: McLennan Ross 2 at paras 6, 13.

Accordingly, absent direct evidence on the recordshowing that a review officer applied an incorrect principle or was ignorant to a required principle, a review officer will be affordedsignificant deference. [44] In this case, the Review Officer correctly identified sources for assessing the reasonableness of the impugned accounts,referring to rule 10.2 of the Rules, the Law Society of Alberta Code of Conduct [Code of Conduct], and the common law (specifically,MacDonald & Freund v Chernetski (1987), (AB KB), 81 AR 142, 6 ACWS (3d) 7 (QB) [MacDonald & Freund]):Transcript,

Part 1, p 6, ll 8-41, p 7, ll 1-12. The Review Officer listed the following factors: Code of Conduct: time and effort required and spent; difficulty of the matter; importance of the matter to the client; whether some specialskill or service was required and provided; the results obtained; any relevant agreement between the lawyer and the client; the experienceand ability of the lawyer; any estimate or change of fees given by the lawyer; and the client’s prior consent to fees.

Rule 10.2: the nature, importance and urgency of the matter; the client’s circumstances; the manner in which the services are performed;the skill, work and responsibility involved; and any other factor that is appropriate in the circumstances.

Common law (MacDonald & Freund, in particular): time “extended” (likely meaning time “expended”); hourly fee; professional skill,responsibility, character and standing of counsel involved; the importance, nature and urgency of the litigation; the monetary value andresult to the client; the client’s circumstances; and expectations to fees (which can be influenced by the retainer agreement). [45] This list is in substantial accordance with that compiled by Justice Tilleman in Repchuk at para 79. [46] The Review Officer then looked to the following factors in his decision: Mr.

Ashraf’s consent and expectation regarding Mr.Zinner’s hourly rate, contracted for in the Retainer Agreement (Transcript,

Part 2, p 30, ll 2-6); the type of work and responsibility

involved in the work Mr. Zinner did on the file (Transcript,

Part 2, p 30, ll 6-29); time and effort required and spent on the opinion letter and Statement of Claim (Transcript,

Part 2, p 30, ll 15-19, 31-38); the importance, urgency and complexity of the matter (Transcript,

Part 2, p 32, ll 5-9); that experienced counsel was required and he got someone in Mr. Zinner who was experienced (Transcript,

Part 2, p 32, ll 9-10); and that Mr. Ashraf had his own thoughts on the case, but there is a cost to this when you are working with a lawyer, i.e. the lawyer’s time: Transcript,

Part 2, p 32, ll 10-13. [ 47 ] As an additional factor, it is important to note that the Review Officer stated: had all the accounts been in front of me, I would have been reducing them. But they weren’t. At the end of the day, counsel is walking away from over $4,000.00. I look at the two accounts that are before me, and there are no disbursements that I can take issue with and counsel’s time, I think, is in the circumstances in that broad range of reasonable, and his fees were agreed to. (Transcript,

Part 2, p 32, ll 15-19). [ 48 ] Mr. Ashraf has not shown that the Review Officer applied an incorrect principle or was ignorant of a relevant principle. Based on my review of the record of proceedings and the parties’ submissions to this Court, I find that the Review Officer properly considered and applied factors relevant to this case. I do not find that Mr. Ashraf’s contrary arguments regarding the difficulty of the matter, time and effort required and spent, relevant agreements, skills provided, and the experience and ability of Mr. Zinner to individually or collectively disclose a reversible error.

Review officers have considerably more expertise and experience in assessing the reasonableness of lawyers’ accounts than this Court: Carr at para 20. Affording the Review Officer the appropriate curial deference in this case, I am unable to find a reversible error in principle. [ 49 ] Mr. Ashraf also asked this Court to consider the results obtained, with specific reference to Master Laycock’s finding in Ashraf v SNC Lavalin ATP Inc , 2013 ABQB 143 [ Ashraf ]. In Ashraf , Master Laycock held that Mr. Ashraf’s claim against SNC falls within the exclusive jurisdiction of the WCB.

He also asked that the additional lawyers’ fees he has incurred in defending SNC’s application be considered. These issues are not relevant to this appeal, as they were not “on the record” before the Review Officer. While the old rule 656 of the Alberta Rules of Court , Alta Reg 360/68 granted the Court authority to allow evidence beyond that which was before the review officer (then called a taxing officer), rule 10.26(3) does not give the court this power: FMC at paras 9-10 . As a result, I have not considered these arguments in this appeal. Any potential remedy available to Mr.

Ashraf for the predicament he currently finds himself in regarding his claim against SNC lies outside the jurisdiction of this Court on an appeal from a Review Officer. [ 50 ] Likewise, whether Mr. Zinner was negligent for failing to anticipate the WCB issue can only be determined by reference to events after the Review Officer’s assessment (i.e. the outcome of Mr. Ashraf’s claim against SNC). This evidence was not on the record before the Review Officer.

I also note that with respect to any allegations of professional negligence, the determination of such issues is beyond the powers of a review officer: Repchuk at para 37 ; Fontaine v Veyland , 2002 ABQB 327 at para 28 [ Fontaine ]. This is because a review of lawyers’ charges is intended to determine whether the fees charged were reasonable, not whether the lawyer’s professional negligence disentitles them to the fees contracted for: Fontaine at para 28 . [ 51 ] As a consequence, I decline to find that the Review Officer committed an error in principle.

Damages [ 52 ] In addition to seeking reimbursement of what he has already paid to Mr. Zinner along with costs, Mr. Ashraf requests “general, aggravated and punitive damages”. This appeal is not the proper forum for an award of such damages. Conclusion [ 53 ] Mr. Ashraf’s appeal is dismissed. In accordance with rule 10.27(1)(a), I confirm the Review Officer’s decision. Heard on the 13 th day of September, 2013. Dated at the City of Calgary, Alberta this 10 th day of December, 2013. W.P. Sullivan J.C.Q.B.A. Appearances: Shidan Ashraf

for the Self-Represented Litigant Gabor I. Zinner for the Respondent