Lewis Estates Communities Inc. v. Brownlee LLP, 2013 ABQB 731

Court of Queen’s Bench of Alberta Citation: Lewis Estates Communities Inc. v. Brownlee LLP, 2013 ABQB 731 Date: 20131210 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 _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Russell Brown _________________________________________ ______________ I. Introduction [ 1 ] On September 6, 2013 I exercised my discretion under Rule 13.5(2)(

a) of the Rules of Court , AR 124/2010 by issuing reasons for judgment in Lewis Estates Communities Inc. v Brownlee , 2013 ABQB 508 allowing a review by a review officer of certain accounts rendered by the Respondent Brownlee LLP (“Brownlee”) to Lewis Estates Communities Inc., Jagare Ridge Communities Inc. and Country Club Tour Corp (collectively, the “Applicants”), notwithstanding that those accounts were issued more than six months prior to the Applicants filing an Appointment for Taxation. Those reasons have not yet been entered. [ 2 ] The Applicants now apply under Rule 9.13 for a variation of my September 6, 2013 reasons to allow them to submit before

the review officer for review certain other accounts – specifically, accounts issued under Brownlee File No. 78686-003 on October 29, 2009; November 27, 2009; December 23, 2009; January 28, 2010; February 25, 2010; March 30, 2010; and April 29, 2010. II.

Background [ 3 ] The background to Brownlee’s retainer with the Applicants, which is critical to understanding the basis for this application, was set out at paragraphs 3-7 of those reasons: [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". [ 4 ] To be clear, the accounts which the Applicants seek to have me reconsider adding to the accounts which I have directed may be put before a review officer are from the third above-listed file: File No. 78686-003 (“2007 and 2008 MGB Appeal”). [ 5 ] At paragraph 13 of my September 6, 2013 reasons, I also explained how Brownlee’s accounts were received by Kevin McGee as the Golf Course Group’s Treasurer. Mr McGee’s evidence, in brief, was that he would review the

summary billing of each account showing the total amount of time recorded by each lawyer working on the file. He would then arrange for payment of the account by Melcor Developments Ltd (which was the managing joint venture partner of the applicant Lewis Estates Communities Inc.) , then solicit reimbursement from each of the other applicants and the other Golf Course Group participants based upon their agreed-upon proportionate share. [ 6 ] Mr McGee had offered three explanations of how and when Brownlee’s accounts became a subject of contention with the Applicants.

One of his explanations – that the file did not require the regular involvement of two senior lawyers – I rejected (at para 53) as inadequate to explain why the Applicants could not have formed their concerns about Brownlee’s charges within the six month time limit stipulated in the Rules .

I similarly rejected (at para 61) another of his explanations – that almost all of Mr Sjolie’s time entries were recorded on a whole hour basis. [ 7 ] I did, however, accept as furnishing a reasonable explanation for the delay in seeking a review Mr McGee’s explanation, to which he deposed as follows: 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. [ 8 ] Specifically, I said (at paras 54-60): [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. [ 9 ] It is worth noting at this stage that, in setting out his concerns (which, to reiterate, I rejected) about having two senior lawyers representing the Applicants, Mr McGee deposed to the following: Despite the issues in the ARB and MGB proceedings being the same, ....

This relates, as I will explain, to the Applicant’s submissions on this application. [ 10 ] I later stated the following (at para 75, and having just said that I agreed with Brownlee’s submissions that Mr Sjolie’s time entries were not necessarily suggestive of overcharging): 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. [ 11 ] I concluded my decision on the extension of time for a review by saying the following: [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). [ 12 ] It is this paragraph – paragraph 86 of my September 6, 2013 decision – that the Applicants invite me to reconsider under what they describe as the extremely broad authority conferred upon me by Rule 9.13 to reconsider matters after the pronouncement of judgment but before entry of the final order. [ 13 ] They submit that, in light of Mr McGee’s concerns deposed to in his affidavit (which are reproduced above) regarding duplicative work, I ought to have extended the scope of the review not only to work done in respect of ARB-level work for the 2009 and 2010 tax year assessments, but also to work done at the MGB appeal level for the 2007 and 2008 tax year assessments.

Their argument is, in essence, that it follows from the logic of my September 6, 2013 decision, taken in reliance upon Mr McGee’s evidence; if ARB- level work for the 2007 and 2008 tax year assessments might have been duplicated by the ARB-level work for the 2009 and 2010 tax

year assessments (which duplication would not have been evident until late 2009 or early 2010), it follows that ARB-level work for the 2007 and 2008 tax year assessments might have similarly been duplicated by MGB-level work for the 2007 and 2008 tax year assessments. In brief, they say that, if their concerns regarding duplicative work were sufficient to warrant a review of the ARB-level work for the 2009 and 2010 tax years from October 2009, a review of the MGB-level work for the 2007 and 2008 tax year assessments is also warranted. [ 14 ] In support, the Applicants point to: 1.

Mr McGee’s affidavit evidence (cited above); 2. Paragraph 54 of my September 6, 2013 decision, recounting Mr McGee’s evidence in the following terms: “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[.]”; and 3. Paragraph 75 of my September 6, 2013 decision, in which I pointed (again) to “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 ....” [ 15 ] The Applicants further submit that, despite the evidence showing that the same general issues were dealt with in the MGB- level work for the 2007 and 2008 tax year assessments as in the ARB-level work for those years, the invoice for the MGB appeal for 2007 and 2008 was the largest ever issued to the applicants. [ 16 ] Brownlee submits that I should not exercise my discretion to vary my judgment as proposed by the Applicants, as what they are seeking is another “kick at the can”.

My September 6, 2013 decision, it says, shows (at para 5, reproduced above) that I was mindful of the specific time entries for the MGB appeal of the 2007 and 2008 tax year assessments.

Like the Applicants, Brownlee also points to paragraph 54 , where I said: “[i]t 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.” And, finally, he points to paragraph 86 of my decision, where I specifically addressed and rejected the possibility of extending the scope of the permitted review to include accounts issued under the MGB appeal file for 2007 and 2008 tax years, “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.” III.

Analysis [ 17 ] Rule 9.13 provides: Re-opening case At any time before a judgment or order is entered, the Court may (

a) vary the judgment or order, or (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. [ 18 ] The predecessor Rule 339, contained in the Alberta Rules of Court , AR 390/1968, provided that “[c]lerical mistakes in judgments or orders, or errors therein arising from any accident, slip or omission may at any time be corrected by the court on motion.” In Evans v The Sports Corporation , 2011 ABQB 478 at paras 13 and 15 [ Evans ], my colleague Graesser J said that Rule 9.13 “appear[s] to significantly expand the authority” from that provided under predecessor Rule 390, leaving the Court with “extremely broad authority to do what [it thinks] is correct in the circumstances.” In Evans , both parties agreed that the Court had misread a provision of the parties’ contract and Graesser J, having determined that this affected the calculation of damages, reconsidered and revised his damages award accordingly. [ 19 ] My colleague Shelley J relied upon Evans in Paniccia Estate v Toal , 2012 ABQB 11 , aff’d 2012 ABCA 397 [ Paniccia Estate ] in deciding to correct an incorrect statement of law regarding claims under the Fatal Accidents Act , RSA 2000, c F-8.

In doing so, she invoked Rule 1.2, which describes the purpose of the Rules of Court as provision of a fair and just judicial resolution of disputes in a timely and cost effective way and, in particular ( inter alia ) to facilitate the quickest means of resolving a claim at the least expense. In light of the explicit authority contained in Rule 9.13 and the purpose of the Rules of Court as contained in Rule 1.2, Shelley J decided that a judge may investigate whether error exists in a judgment and, when an error is identified, consider whether the defect warrants correction.

She identified the benefits of such judicial intervention as including the avoidance of an otherwise unnecessary and costly appeal; and, where an appeal is nonetheless pursued, the benefit of the appeal court having a more fully developed trial consideration of the facts and law. The circumstances in which that later benefit might arise, she said, include where an issue had not been fully apprehended during preparation of the judgment. [ 20 ] I agree with my colleagues Graesser and Shelley JJ that Rule 9.13 represents a considerable expansion of judicial discretion from that contained in the predecessor Rule 339.

My discretion is, however, not boundless. Whether I can undertake the reconsideration sought by the Applicants is governed by the limits of Rule 9.13. And, even if those limits allow for such reconsideration, there remains the question of whether I should do so. [ 21 ] As to whether I can reconsider my decision, Rule 9.13 confers two powers on me. [ 22 ] As to the first power – to vary a judgment or order under R. 9.13(a) – the following can be said:

1. The Court may act on an application by a party, or sua sponte (that is, on its own application); and 2. The Court is limited to “varying” its “judgment or order”. [ 23 ] As to the second power – on application, and if satisfied that there is a good reason to do so, to hear more evidence and change or modify my judgment, or order or reasons for it under R. 9.13(b) – the following can be said: 1. The Court may act only on application by party; 2. The Court may “hear more evidence and “change or modify its judgment or order or reasons for it”; and 3.

The Court must be satisfied that there is good reason to make such a “change” or “modification]”. [ 24 ] Read in light of the other, the scope of each of these powers is curious. The Court may “vary” a judgment, or an order, on its own motion. It may, however, “change” or “modify” not only its judgment or order, but its own reasons, so long as one of the parties asks it to do so. [ 25 ] It is possible that the latter power is also conditioned upon the Court hearing more evidence.

That depends upon whether the “and” in Rule 9.13(b)’s statement that the Court may “hear more evidence and change or modify its judgment or order or reasons for it” (emphasis added) is conjunctive (in which case the Court must hear more evidence) or disjunctive (in which case the Court need not). [ 26 ] Assuming that puzzle is solved so as not to preclude the outcome the Applicants seek, there remains the language of the Rule itself. The Applicants ask me to “vary” my September 6, 2013 judgment. Is that the same as to “change” or “modify” it? And, does it matter that Rule 9.13(

a) only allows me to vary a “judgment or order”, whereas R. 9.13(

b) allows me to change or modify my “judgment or order or reasons for it ”? (Emphasis added.) In other words, does the inclusion in R. 9.13(

b) of a power to change or modify specific to my reasons operate to preclude my power to vary my reasons for judgment? This matters, because as noted my reasons for judgment specifically addressed the very issue that the Applicants ask me to vary. And, does the conditioning of an exercise of the power under R. 9.13(

b) upon the Court’s satisfaction that a good reason exists for doing so mean that an exercise of the Court’s power under R. 9.13(

a) does not require a good reason? One supposes not, but the Rule strictly construed suggests otherwise. [ 27 ] I do not propose to resolve these issues here because I have decided that, even assuming that I am empowered by R. 9.13 to vary (or change, or modify) my judgment (or my reasons for judgment) in the manner proposed by the Applicants, I should not do so. [ 28 ] By way of explanation, I agree with Graesser and Shelley JJ that – where R. 9.13’s threshold is met – it expands the scope for correcting errors in judgments from that permitted by the predecessor Rule 339.

And, I agree with Shelley J that, in deciding whether to exercise that discretion so as to correct an error in that original judgment, one ought to have in mind the purpose of the Rules, the avoidance of unnecessary and costly appeals, and (where an appeal is brought in any event) the desirability of the Court of Appeal having a chambers or trial judge’s most fully developed consideration of the facts and law. [ 29 ] That does not mean, however, that the power ought to be exercised wherever R. 9.13’s threshold, with all its vagaries, is met. [ 30 ] While pronounced before the adoption of the present Rules of Court , this statement of Côté JA (in Chambers) in Alberta (Child, Youth and Family Enhancement, Director) v BM , 2009 ABCA 258 at paras 10 & 11 remains apposite: ... [A] number of more recent cases have pointed out that it is not enough simply to say that the judge has jurisdiction to reopen the matter.

The question is whether he should reopen the matter, and under what circumstances. ... [T]he cases all seem to agree on one thing. That is that the Courts should be very sparking in their reopening of a pronounced decision, and should not do so simply for the asking. This is not an occasion for the losing party to advance new argument which he or she simply did not think of before. Or worse still, one which he or she held back.

If parties are not forced to prove fully their whole case once and for all, then endless wrangling and never-ending rehearings will result .... (Emphasis in original.) [ 31 ] I should add that I do not take the Applicants here as having sought to advance a new argument, or as having held back, or as otherwise not having put their best foot forward at the hearing that led to my September 6, 2013 judgment.

The point remains however that, while as Shelley J noted in Paniccia Estate there are good reasons for the Court to exercise its discretion under R. 9.13 in some circumstances, there are also good reasons for the Court to be slow to do so in other circumstances. Finality and certainty – two important objectives of any judicial process – militate against re-opening a pronounced decision. And, R. 1.2, which was relied upon in Paniccia Estate to lend force to R. 9.13’s exercise, also cuts the other way.

That is, a fair and just judicial resolution of disputes in a timely and cost effective way may just as easily weigh against re-opening a decision (bearing in mind that it seeks to promote resolution ) as for it. [ 32 ] Whether the powers conferred upon the Court under R. 9.13 are to be exercised is therefore circumstance-dependent. In Evans , it was exercised to correct a reading of a contractual term that all parties agreed was in error. In Paniccia Estate , it was exercised to correct an incorrect statement of law. These were objectively demonstrable errors.

The circumstances of Evans and Paniccia Estate stand in contrast to those which led my colleague Hall J to decline to exercise his discretion under R. 9.13(

b) in Peters v Wilson Estate , 2011 ABQB 689 [ Peters ]. Justice Hall had granted the defendant

summary judgment. The plaintiff then applied under R. 9.13, raising three arguments that he said Hall J had not considered properly. In addition to observing that two of the arguments were contradicted by appellate authority, he also pointed out (at para 11) that the remaining argument (about “expenses that were made by the Plaintiff for seed and seeding operations incurred after the original lease had expired”) had been dealt with in his original judgment. There being no good reason to modify or change his decision, he did not do so. [ 33 ] It makes sense to apply R. 9.13 to correct the sorts of errors identified in Evans and Paniccia Estate . Doing so not only averts

an injustice but saves litigants the costs and delay of bringing an otherwise unnecessary appeal. R. 9.13 is not, however, a vehicle for seeking reconsideration of a judgment call such as the treatment of evidence or the finding of facts. An unsuccessful litigant’s remedy in such a case lies only in an appeal. And, because judgments need not and often will not specifically address every argument put before the Court, where a Court is invited to reconsider under R. 9.13 a matter that it has specifically addressed in its original judgment, the putative error ought be plain and manifest.

Otherwise, R. 9.13 would quickly become a vehicle for litigants seeking second kicks at the can. This concern also explains why the test for the admission of fresh evidence on appeals is so high; the trial is designed to determine the facts. [ 34 ] What the Applicants seek of me is closer to what the applicants sought of Hall J in Peters than the request to correct a clear error of fact in Evans or clear misstatement of law in Paniccia Estate .

Like the argument about the timing of expenses of seeding and seeding operations in Peters , the question of whether MGB-level work in respect of the 2007 and 2008 tax assessment years ought to be included among those accounts to be put before the review officer was specifically addressed by me in paragraph 86 of my September 6, 2013 judgment, with reasons that, in the light of the evidence before me are not plainly and manifestly displaced by the Applicants’ submissions. This need not require agreement between the parties as to whether there was an error.

While such agreement was present in Evans , it was not for example in Paniccia Estate . Rather, the evidence and law put before the Court ought to make an applicant’s case so compelling that the likelihood that it has correctly identified an error is very high. This is, I note, essentially the test for obtaining

summary judgment. (See Wakeling J’s useful formulation of the test in Beier v Proper Cat Construction Ltd , 2013 ABQB 351 at paras 56 , 59-68, 70; and O'Hanlon Paving Ltd. v. Serengetti Developments Ltd , 2013 ABQB 428 (at paras. 38-41 ).) A lower standard than this would encourage rehearings which consume private and public resources for no valid purpose. As well, the

interpretation and application of rules in such a way as to create the possibility of inconsistent orders brings the administration of justice into disrepute. ( AR v Alberta , 2013 ABQB 715 at para 36 : “[i]t is not in the public interest to devote public or private resources to relitigate controversies [featuring common fact patterns and legal issues].”) [ 35 ] 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.

His evidence, it will be recalled, was that it was his understanding that “the issues for the 2007, 2008, 2009 and 2010 years are the same.” Elaborating upon that, he said that “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. ” (Emphasis added.) As I explained at paragraph 54, I took this affidavit as saying, as it did say, that “the costs of the appeals for the later years of 2009 and 2020 might ... be lower than those incurred in appealing the assessments for 2007 and 2008.” I did not take it as saying, and it did not say, that the costs of MGB appeals for 2007 and 2008 might be lower than those incurred in the ARB-level work for 2007 and 2008. [ 36 ] Nor does it logically follow, merely by reason of Mr McGee having said (and my having accepted at paragraphs 54 and 75 of my September 6, 2013 judgment) that the submission as to similarity of issues regarding assessment years 2007 through 2010 inclusive had been made both to the ARB and to the MGB , that I must conclude that the work done at the ARB in connection with the 2007 and 2008 assessment years would be duplicated by the work done at the MGB in connection with those years.

I had, for example, no evidence before me about the respective processes followed at the ARB and at the MGB. This argument is still met with the problem that Mr McGee’s evidence does not – as I said in paragraph 86 of my September 6, 2013 reasons for judgment – support a reasonable basis for supposing that the work done on the MGB appeal for the 2007 and 2008 taxation years would have been duplicative to the work done on those assessments at the ARB level.

Rather, Mr McGee’s evidence merely allowed for me to conclude – as I did – that there was a reasonable basis for supposing that the costs of the appeals for the later years of 2009 and 2010 should have been lower than those incurred in appealing the assessments for 2007 and 2008, and that the timing of this duplication provided the Applicants with a reasonable explanation for their delay in seeking a timely review of some of Brownlee’s accounts. [ 37 ] In the absence of evidence to support the extension of my earlier judgment permitting review of certain limited accounts to the accounts reflecting work done on the MGB appeals for assessment years 2007 and 2008, I cannot find that the Applicants’ case that I ought to have done so is so compelling as to support a variation of my order under R. 9.13.

IV. Conclusion [ 38 ] The application is dismissed. [ 39 ] If the parties cannot agree on costs, they may be spoken to within 60 days of these reasons. Heard on November 14, 2013. Dated at Edmonton, Alberta on December 10, 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