Shreem Holdings Inc. v. Barr Picard, 2014 ABQB 112

Court of Queen ’ s Bench of Alberta Citation: Shreem Holdings Inc. v. Barr Picard, 2014 ABQB 112 Date: 20130226 Docket: 1103 12979 Registry: Edmonton Between: Shreem Holdings Inc. Respondent (Applicant) - and - Barr Picard Applicant (Respondent) _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice Thomas W. Wakeling _________________________________________ ______________ I. Introduction [ 1 ] In Shreem Holdings Inc. v.

Barr Picard , 2013 ABQB 257 I dismissed Barr Picard’s application for an order directing that review officer Christensen’s decision regarding a fee dispute be entered as a judgment against Shreem Holdings Inc. and Deepak Kumar. [ 2 ] The review officer’s certificate of review contained features which made it of no value to Barr Picard. I explained why in the part of my opinion set out below: [35] There are three reasons which support this conclusion. [36] First, the certificate of review does not certify the amount Shreem Holdings Inc. must pay Barr Picard. This is because there was

a dispute about the payments Shreem Holdings Inc. and Mr. Kumar or either of them had made to the law firm. And more fundamentally, Shreem Holdings Inc. maintained before ... [the review officer] that Barr Picard agreed to represent it for $15,000. [37] Second, the certificate of review does not identify Mr. Kumar as a client. The law firm sought a declaration that Mr.

Kumar and Shreem Holdings Inc. “are jointly indebted” to Barr Picard. [38] Third, the existence of unresolved issues recorded in the certificate makes it impossible to enforce ... [the review officer’s] certificate of review. [39] [The review officer] ... expressly refrained from deciding how much the client-debtor owed the law firm. ... [40] A court should not accord the status of a judgment to a review officer’s certificate of review which reveals that there is a dispute as to who the client is and the amount the client owes the lawyer. [ 3 ] After dismissing the law firm’s application, I stated that “I am prepared to entertain submissions as to whether this Court has the jurisdiction to order any other remedy such as the trial of an issue, which might accelerate the dispute resolution process”. 2013 ABQB 257 , ¶ 42 .

I indicated that the Court would not be receptive to this option if Barr Picard decided to sue Shreem Holdings Inc. and Mr. Kumar for unpaid legal charges. 2013 ABQB 257, ¶ 48. [ 4 ] The law firm now asks the Court to invoke r. 7.1 of the Alberta Rules of Court , Alta. Reg. 124/2010 and order a hearing to determine whether Barr Picard agreed to provide specified legal services for a fixed fee, whether Deepak Kumar and Shreem Holdings Inc. are jointly and severally responsible for the payment of Barr Picard’s charges and whether the law firm is entitled to twelve percent interest on the outstanding charges. II.

Questions Presented [ 5 ] Does this Court have the jurisdiction to order the hearing of the three issues posed by the law firm? If so, what is the source of this jurisdiction? Is it the Alberta Rules of Court , a statute or the Court’s inherent jurisdiction? III. Brief Answers [ 6 ] This Court has no jurisdiction to order the hearing of these issues. No provision in the Alberta Rules of Court allows this Court to issue such an order. And the Court’s inherent jurisdiction does not assist the law firm.

Part 10, Division 1 of the Alberta Rules of Court constitutes a comprehensive protocol for the assessment of a lawyer’s charges. IV. Applicable Rules Rules 7.1 , 10.13(1) , 10.18 and 10.20(1) of the Alberta Rules of Court are set out below: 7.1(1) On application, the Court may (

a) order a question or an issue to be heard or tried before, at or after a trial for the purpose of (

i) disposing of all or part of a claim ... (

b) in the order or in a subsequent order (

i) define the question or issue ...

(3) If the Court is satisfied that its determination of a question or issue substantially disposes of a claim or makes the trial of an issue unnecessary ... it may ... (

d) make a finding of fact.

(4) Part 5 ... Division 2 ... applies to an application under this rule unless the parties otherwise agree or the Court otherwise orders. [1] ... 10.13(1) A ... client may, by request, obtain from a review officer an appointment date for a review of a ... lawyer’s charges ... . ... 10.18(1) A review officer (

a) must refer any question arising about the terms of a retainer agreement to the Court for a decision or direction

... 10.20(1) The Court may direct a decision of a review officer to be entered as a judgment or order. V. Analysis A. Historical Development of the Taxation Process [7] In this

part I will explore the roots of the taxation process for the review of a lawyer’s charges and the statutory schemeswhich are now in place in Canada. I do so to demonstrate the comprehensive nature of these protocols. This feature of the Alberta Rulesof Court must be borne in mind when considering whether this Court should invoke its inherent jurisdiction in this case. [8] In 1729 Parliament passed

an Act for the Better Regulation of Attornies and Solicitors, 2 Geo. II, c.

Section 23 of thisenactment incorporated many features which applied to lawyers in the United Kingdom for many years and which other jurisdictionsintroduced to their regimes regulating lawyer’s charges to a client. [9] While the 1729 enactment was the first statute to assign this obligation to superior courts, they had discharged it long before1729, asserting their inherent jurisdiction. They did this because attorneys and solicitors were officers of the courts. Ex p. Arrowsmith, 33Eng.

Rep. 241 (Ch. 1806) (“the jurisdiction to tax the bills of attorneys and solicitors, as officers of the Court, subsisted long before the[1729] Statute”) & Ex p. Earl of Uxbridge, 31 Eng. Rep. 1126 (Ch. 1801) (“there was no doubt the Court exercised the jurisdiction longbefore the Statute”). English and Canadian courts have continued to assert this inherent jurisdiction. Storer & Co. v. Johnson andWeatherall, 15 A.C. 203, 206 (H.L. 1890); In re E, a Solicitor, (AB CA), [1922] 2 W.W.R. 1324, 1325 (Alta. Sup. Ct.App. Div.); Re Peel Terminal Warehouses, (ON CA), 10 C.P.C. 160, 165 (Ont.

C.A. 1978) (“Solicitors are officers ofthe Supreme Court of Ontario ... and there exists in the Supreme Court an inherent jurisdiction to deal with the taxation of theiraccounts”) & Peterson, Ross v. Kirwood, 52 A.R. 284, 294-95 (Master 1984) (Master Funduk expressly claimed that the Court ofQueen’s Bench has an inherent jurisdiction to exercise control over the accounts of solicitors). [10] I will describe five leading features of this important 1729 enactment. [11] First, a client had the right to apply to a designated court officer to have the bill of his attorney or solicitor[2] taxed.

This is astandard feature of modern Canadian taxation procedures.[3] The client had to undertake to pay any amount the taxation officerdetermined was due, although no money had to be paid into court for that purpose at the outset. No such requirement is embedded in theAlberta Rules of Court or any other Canadian rules. [12] Second, the client had to “forthwith” pay to the lawyer the sum that the court officer determined was due to the lawyer. Thereis no similar provision in Canadian statutes or court rules.

If the court officer found that the client had overpaid his lawyer, the lawyerhad to “forthwith” return the overpayment to his client. Overpayment provisions appear in many provincial and territorial laws.[4] [13] Third, if the client or lawyer failed to forthwith pay the sum determined by the court to be payable, the court had thejurisdiction to take steps to assist the creditor, including citing the client or lawyer in contempt.

In most, if not all Canadian jurisdictions,a decision of the court officer responsible for assessing proper charges is enforceable as a judgment of the court.[5] [14] Fourth, the court officer was entitled to award costs. If the court officer reduced the lawyer’s charges by more than one-sixth,the lawyer had to pay the client’s taxation costs.

If the reduction was less than one-sixth, the court may award costs to either party. [15] Fifth, a lawyer could not commence a suit against a client for the recovery of fees, charges or disbursements until at least onemonth had passed since the lawyer delivered his bill to the client, or, if the client had applied for taxation, until the taxation process wascompleted.

Most Canadian jurisdictions expressly state that a law firm may sue for unpaid legal fees.[6] Some provinces incorporate thisdelay provision feature.[7] Some do not.[8] If a client had applied for taxation after a lawyer had commenced an action, the lawyer couldnot prosecute it until the taxation was completed. Similar norms now exist in Canada.[9] [16] This 1729 enactment bestowed some burdens and benefits on a lawyer whose account was taxed. The lawyer had to submit tothe statutory process if the client exercised his right to access it.

But the decision of the taxing officer was, in effect, an enforceablejudgment against a nonpaying client. This relieved the lawyer of the burden of commencing an action and prosecuting it. Griffiths v.Hughes, 153 Eng. Rep. 1418 (Ex. 1847) (a lawyer need not commence an action for unpaid fees to utilize this process). This is animportant element of most current provincial schemes. [17] This statutory regime remained in place until repealed by the passage of

An Act for Consolidating and amending several of thelaws relating to Attornies and Solicitors practising in England and Wales, 6 & 7 Vict., c. 73 (1843).[10] [18] The 1843 enactment made some substantive changes to the core elements of the process used to review lawyer’s changes. [19] First, it introduced limitation periods. A client could not initiate a review of a lawyer’s charges after the lawyer had secured averdict in a debt action for unpaid charges or the expiration of twelve months following the delivery of the bill to the client, unlessspecial circumstances existed.

Canadian jurisdictions favour this approach.[11] [20] Second, a client had to pay the lawyer’s costs if the lawyer’s charges were reduced by less than one-sixth. Under the 1729norm the taxing officer had a discretion at this level. British Columbia uses this formula. Legal Profession Act, S.B.C. 1998, c. 9, s.72(1). [21] No substantive changes to the taxation process were made by amendments to the Solicitors Act, 1843, before July 15, 1870,

the date selected by the North-West Territories Act, 49 Vict., c. 25, s. 3 and the Alberta Act, 4 & 5 Edw. 7, c. 3, s. 16 for the reception ofEnglish law relating to civil and criminal matters. See Côté, “Introduction of English Law into Alberta”, 3 Alta. L. Rev. 262, 265 (1964). [22] Subsequent versions of the Solicitors Act, 1843, have not altered the central features of the review process in place forsolicitors’ charges. See Solicitors Act, 1932, 22 & 23 Geo. 5, c. 37,

Part V; Solicitors Act, 1957,

Part III & Solicitors Act 1974, c. 47, PartIII. [23] In Alberta, the Consolidated Rules of the Supreme Court, which came into effect on September 1, 1914 represented thisjurisdiction’s first set of homemade court rules. Before September 1, 1914, the applicable rules were those authorized by the JudicatureOrdinance of the North-West Territories for the Supreme Court of the North-West Territories.[12] [24] The 1914 rules maintained the core features which were in the 1729 and 1843 enactments. A client could apply to have hislawyer’s charges taxed by the taxing officer.

Consolidated Rules of the Supreme Court, rr. 64 & 66 of the rules as to costs. Second, therules allowed the court to assist a lawyer to recover her charges once taxed. The Consolidated Rules of the Supreme Court, r. 68 of therules as to costs. Third, the taxing officer had the authority to order costs against either the lawyer or the client. Consolidated Rules ofthe Supreme Court, r. 48(

e) of the rules as to costs. Fourth, a lawyer could sue her client for unpaid charges. The Consolidated Rules ofthe Supreme Court, r. 47 of the rules as to costs. Fifth, there were limitation periods. A client could not have a bill taxed after it had beenpaid or after one year from receiving it except under special circumstances. Under no circumstances could a taxing officer review a bill ifthe reference occurred more than two years after its payment.

The Consolidated Rules of the Supreme Court, r. 67 of the rules as to costs. [25] I have developed the historical record to illustrate the detailed nature of the legislative protocol. This record must be borne inmind in order to appreciate the significant of the inherent jurisdiction discussion in the following part. B. A Superior Court’s Inherent Jurisdiction May Be Abridged by Statute [26] Just as the existence of the inherent jurisdiction of superior courts is indisputable and certain, the theoretical basis and scope ofit are debatable.

Master Jacob, one of the first to study this topic, observed that “[t]his peculiar concept is ... so amorphous andubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and establish its limits”. “TheInherent Jurisdiction of the Court”, 23 Current Legal Problems 23 (1970). See also Mason, “The Inherent Jurisdiction of the Court”, 57Austl. L.J. 449 (1983) (“Its ubiquitous nature precludes any exhaustive enumeration of the powers which are thus exercised by thecourts”); Dockray, “The Inherent Jurisdiction to Regulate Civil Proceedings”, 113 L.Q.

Rev. 120, 120 (1997) (“There is no clearagreement on what it is, where it came from, which courts and tribunals have it and what it can be used for”); Lacey, “InherentJurisdiction, Judicial Power and Implied Guarantees Under

Chapter III of the Constitution”, 31 Fed. L. Rev. 57, 63 (2003) (“ ‘Inherentjurisdiction’ falls within the category of legal terms often invoked in court, yet rarely understood in a tangible and well-defined sense”)& Joseph “Inherent Jurisdiction and Inherent Powers in New Zealand”, 11 Canterbury L.

Rev. 220, 220 (2005) (“the ‘inherentjurisdiction’ of the court is ... the subject of much confusion”). [27] But another certainty is the important consequences which attach to its exercise: It is the foundation for a whole armoury of judicial powers, many of which are significant and some of which are quite extraordinary andare matters of constitutional weight.

They deny a litigant a full hearing [invocation of abuse of process to strike out a statement of claim];to make orders without listening to the party affected [Anton Piller order]; to decline to hear an advocate [to hear only barristers and notsolicitors]; to exclude a party or the public from the courtroom; to arrest or to grant bail; to order a party to speak or to keep silent [toplace terms restricting the right of a vexatious litigant]; to require parties to surrender their property before a judgment [Marevainjunction] or to submit to a search and seizure [Anton Piller orders].

Dockray, “The Inherent Jurisdiction To Regulate Civil Proceedings”, 113 L.Q. Rev. 120, 120 (1997). [28] I am content to observe that inherent jurisdiction[13] describes a jurisdictional claim made by a superior court based on adetermination that it is needed to discharge its constitutional function as a court and there is no statutory provision which bestows thisjurisdiction on the court.[14] Its amorphous nature and the magnitude of the consequences its exercise may create “requires that it beexercised sparingly and with caution”. The Queen v.

Caron, 2011 SCC 5 , [2011] 1 S.C.R. 78, 96. [29] There is good reason to believe that a statute may abridge the inherent jurisdiction of a superior court. Conseil scolairefrancophone de la Columbie-Brittanique v. British Columbia, 2013 SCC 42 , [2013] 2 S.C.R. 774, ¶ 63 (“The British ColumbiaSupreme Court has the inherent jurisdiction ... but as this Court noted in R. v. Caron ... they are subject to the requirement that the courtexercise them without contravening any statutory provision”); Baxter Student Housing Ltd. v.

College Housing Co-operative Ltd., (SCC), [1976] 2 S.C.R. 475, 480 (1975) (“the inherent jurisdiction of the Court of Queen’s Bench is not such as to empowera judge of that Court to make an order negating the unambiguous expression of the legislative will”); Re Stelco Inc., (ON CA), 196 O.A.C. 142, 153 (C.A. 2005) (“In spite of the expansive nature of this power, inherent jurisdiction does not operate whereParliament or the legislature has acted”); Re Richtree Inc., (ON SC), 74 O.R. 3d 174, 177 (Super. Ct.

J. 2005) (asuperior court may not exercise its inherent jurisdiction “to conflict with a statute or a rule”); Connelly v. Director of PublicProsecutions, [1964] A.C. 1254, 1347 (H.L.) (“the judges of the High Court have in their inherent jurisdiction, both in civil and criminalmatters (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court’s process is usedfairly and conveniently by both sides”); Industrie Chimiche Italie Centrale v. Alexandre G.

Tsaviliris & Sons Maritime Co., [1996] 1W.L.R. 774, 788 (Q.B. 1995) (“I do not presently see how any inherent jurisdiction which would otherwise exist could survive or beexercised in the face of ... [the] prohibition [in the Limitation Act 1980]”); Middleton v. Middleton, [1994] 3 All. E.R. 236, 242-43 (C.A.1993) (a court has no inherent jurisdiction to allow a step to be taken outside the time limits set out in the applicable regulation whichgrants a statutory delegate the authority to allow late filing); Langley v.

North West Water Authority, [1991] 1 W.L.R. 697, 709 (C.A.) (asuperior court may, exercising its inherent jurisdiction, publish practice directions, “so long as the direction is not inconsistent with therules of court or other statutory provisions”); Moore v. Assignment Courier, [1977] 1 W.L.R. 638, 645-46 (“The very fact that[Parliament through the Supreme Court of Judicature Consolidation Act 1925 has given that power] to the Rules Committee indicates ...that, without action of the Rules Committee, this court did not have such a power”); Dockray, “The Inherent Jurisdiction To Regulate

Civil Proceedings”, 113 L.Q. Rev. 120, 127 (1997) (“Inherent powers ... can certainly be taken away by Act of Parliament under Englishlaw”) & Mason, “The Inherent Jurisdiction of the Court”, 57 Austl. L.J. 449, 457 (1983) (“There are numerous utterances as to the effectthat an inherent jurisdiction may be curtailed by statutory provisions”).

The right of a legislature to abridge the inherent jurisdiction of asuperior court is based on the supremacy of parliament doctrine. [30] It would be inappropriate for a court to exercise its inherent jurisdiction if to do so resulted in a consequence inconsistent witha consequence mandated by a statute. Suppose that a statute directed that consequence A applied to fact pattern X. Suppose also thatconsequence A is incompatible with consequence B. The court should not therefore exercise its inherent jurisdiction and orderconsequence B. [31] This principle is illustrated by Baxter Student Housing Ltd. v.

College Housing Co-operative Ltd., (SCC),[1976] 2 S.C.R. 475 (1975).[15] This was a construction dispute. The owner of a building received an order from the Court of Queen’sBench of Manitoba for the appointment of a receiver of the unadvanced part of the construction mortgage. A term of the order gave themortgagee priority over all charges affecting the building. This order produced a consequence inconsistent with that effected by TheMechanics’ Lien Act.

The contractor had already filed a lien against the building for the unpaid amount due under the building contract.This lien “is a paramount legal charge not subject to being defeated or eroded in any manner”. [1976] 2 S.C.R. 475, 479 (1975). The twoconsequences were incompatible. They were in direct conflict. Both the lien holder and the mortgagee could not have priority. Only onecould.

Justice Dickson, as he then was, for the Supreme Court of Canada, held that the part of the order giving the mortgagee prioritywas “wrong in law because [this part] ... runs contrary to s. 11(1) of The Mechanics’ Liens Act”. [1976] 2 S.C.R. 475, 479 (1975). Heemphasised the importance of this conflict by noting that the “effect of the order made in this case was to alter the statutory prioritieswhich a court simply cannot do”. [1976] 2 S.C.R. 475, 480 (1975). [32] There is another situation in which a superior court should not exercise its inherent jurisdiction.

A statutory regime may besufficiently comprehensive to justify the conclusion that the legislature intended only these statutory norms to apply. There comes apoint when a comprehensive statutory regime covers the field and leaves no room for the exercise of the court’s inherent jurisdiction. [33] This situation is a variation of the first. In the first there was a clear conflict between the consequences triggered by the statuteand the court’s inherent jurisdiction. In the second, there is no clear conflict.

Recognition of the court’s inherent jurisdiction would notproduce a consequence directly conflicting with that built into the statutory scheme. But the key point is that the legislature has built aregulatory regime which does not include the consequences associated with the exercises of the court’s inherent jurisdiction. It is in thislimited sense that there is conflict. [34] This was the nature of the conflict in Re Stelco Inc, (ON CA), 196 O.A.C. 142 (C.A. 2005).

A SuperiorCourt commercial judge supervising Stelco’s attempts under the Companies’ Creditors Arrangement Act to restructure issued an orderremoving two of Stelco’s board of directors at the request of retired workers who feared that the two new directors would promoteinterests which may put their pensions at risk. He concluded that the Companies’ Creditors Arrangement Act and the court’s inherentjurisdiction gave him the jurisdiction to make this order. 196 O.A.C. 142, 151 (C.A. 2005). The Court of Appeal disagreed.

Of interest isits opinion that the statute provides a sufficiently comprehensive regime to justify the finding that the court’s inherent jurisdiction isinapplicable: In the CCAA context, Parliament has provided the statutory framework to extend protection to a company while it holds its creditors atbay and attempts to negotiate a compromised plan that will enable it to emerge and continue as a viable economic entity, thus benefitingsociety and the company in the long run, along with the company’s creditors, shareholders, employees and other shareholders.

The s. 11discretion is the engine that drives this broad and flexible statutory scheme and for the most part supplants the need to resort to inherentjurisdiction. (ON CA), 196 O.A.C. 142, 152 (C.A. 2005). [35] Etri Fans Ltd. v. M.B. (U.K.) Ltd., [1987] 1 W.L.R. 1110 (C.A.) is another example of a statutory protocol which issufficiently comprehensive as to exclude the exercise of the court’s inherent jurisdiction. [36] In this case, two Japanese corporations sought an order joining them as parties to a lawsuit to which their subsidiary wasalready a party.

The applicant Japanese corporations manufactured fans in Japan under a licence agreement with the fan’s designer, asister company of the plaintiff. The Japanese had the right to sell the fans but not in the United Kingdom. The plaintiff, the copyrightassignee of the fan’s designer, sued the defendant, the applicants’ subsidiary, alleging that the defendants had infringed the plaintiff’scopyright interests by selling the fans in the United Kingdom.

There was an arbitration agreement between the Japanese corporation,who had the right to manufacture the fans, and the plaintiff’s sister company. [37] The motions and appeal courts proceeded on the assumption that the arbitration agreement covered the dispute between theplaintiff and the defendant.

A provision in the arbitration agreement mandated that any dispute be settled by arbitration. [38] The Japanese corporations wanted party status in the action so that they could apply for a stay of the action under theArbitration Act 1975. [39] Both the motions and the appeal court rejected the applicants’ argument that the Arbitration Act 1975 would have aided theapplicants. But that is not why the case is of interest here.

The interesting element is the appeal court’s conclusion that the ArbitrationAct 1975 contained the only grounds which would justify the court to stay the action on account of the arbitration agreement. And theCourt of Appeal concluded that only parties against whom an action had been commenced were able to ask for the court’s intervention.In this case, the plaintiff had not sued the applicants.

The Court of Appeal explained its decision, in part, in the following passage: [I]n order to protect itself in relation to attempts to abuse the process of the court, the court undoubtedly has very wide powers of stayingproceedings. However, because here the area covered by that inherent jurisdiction has been the subject of detailed and preciseParliamentary intervention, the circumstances in which the Court will grant a stay under its inherent jurisdiction in situations dealt withby the statutory provisions, but where it could or would not do so in exercise of its statutory jurisdiction will be rare.

The jurisdiction is

truly a residual one principally confined to dealings with cases not contemplated by the statutory provisions. The facts of this case fallwithin the situation dealt with by the statute, and I am satisfied that there could be no question of the court using this inherent power togrant a stay in favour of the applicants, even if they were joined in the proceedings. [1987] 1 W.L.R. 1110, 1114 (C.A.). [40] Superior courts have asserted their inherent jurisdiction to control the conduct of vexatious litigants.

See Lord Kinnaird v.Field, [1905] 2 Ch. 306 (C.A.) (the appeal court approved an order restricting the right of the defendant to bring particular applicationswithout leave of the court).

Would this jurisdiction not be attenuated if a legislature enacted a comprehensible code which definedvexatious proceedings, created a procedure for its implementation and stated that this procedure limits the authority of the superior courtto dismiss a proceeding as an abuse of process?[16] I think so. [41] There are fact patterns in which a statutory regime and the exercise of the court’s inherent jurisdiction may be complementaryand not inconsistent. This may arise if the court concludes that the legislature did not intend its statute to be the sole source of legalstandards. The Queen v.

Caron, 2011 SCC 5 , [2011] 1 S.C.R. 78, 97 (a court may exercise its inherent jurisdiction if doing sodoes not contravene a statutory provision) & Willis v. Earl Beauchamp, 11 P.D. 59, 63 (C.A. 1886) (a rule prescribing a consequence forlitigation features not present in this case did not preclude the court from exercising the exercise of the courts “inherent power ... toprevent the abuse of legal machinery”).

If a statutory regime compels consequences A, B and C and the inherent jurisdiction protocolcompels consequences D, E and F, and the two sets of consequences are not inconsistent and together constitute a workable protocol,both regimes may be applied concurrently. Suppose that statutory rules of court authorize the court to order persons subject to itsjurisdiction to submit to a medical examination. But suppose the issue was the paternity of a child and a medical examination of thealleged father and the child was not sufficiently helpful.

Suppose a court ordered the alleged father, the mother and the child to submit toblood tests. [42] This was the fact pattern in S. v. McC., (FOREP), [1972] A.C. 24 (H.L. 1970). Lord McDermott concludedthat the superior court could order blood tests: There can be no doubt today that samples of blood, when subjected to skilled scientific examination, can often supply helpful, andsometimes cogent, evidence on various issues in various types of litigation.

But ..., save where Parliament has otherwise ordained theHigh Court has no power to direct that a person who is sui juris is to have a blood test taken against his will ... . But this lack of power onthe part of the Court to enforce its order physically without consent does not mean that the question under discussion must be answeredin the negative, for much of the jurisdiction of the High Court can only be made by indirect means – such as a stay or proceedings,attachment or the treatment of a refusal to comply as evidence against the disobedient party. ...

There is nothing about this in the Rules ofCourt; but the jurisdiction of the High Court to order such an examination cannot ... be questioned in this day and age. (FOREP), [1972] A.C. 24, 46 (1970). See also Davey v. Bentinck, [1893] 1 Q.B. 185 (C.A. 1892) (a master’s orderdismissing an action was supported by both the rules of court and the court’s inherent jurisdiction). C. An Initiating Document Defines the Parameters of the Court’s Jurisdiction [43] A court “is not a knight-errant, roaming at will in pursuit of ... [its] own ideal of beauty or of goodness”. B.

Cardozo, TheNature of the Judicial Process 141 (1921). It may only grant remedies which are directly related to an action, application or proceedingby which a person invokes the jurisdiction of the court. The commencement document serves as the foundation for the court’sjurisdiction. In civil matters, the pleadings define the parameters of the dispute and ultimately the court’s jurisdiction. See PotashCorporation of Saskatchewan Mining Ltd. v. Todd, (SK CA), [1987] 2 W.W.R. 481, 491 (Sask. C.A.) (“So thedetermination of an application for injunctory relief in a civil action ... begins ... with the pleadings.

The statement of claim constitutesthe foundation upon which the plaintiff will have built his case for the interlocutory relief he seeks”) & The Siskina, [1979] A.C. 210,256 (H.L.) (“A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon therebring a pre-existing cause of action against the defendant arising out of an invasion ... of a legal or equitable right of the plaintiff for theenforcement of which the defendant is amenable to the jurisdiction of the court”). [44] This proposition may easily be illustrated.

Suppose that A commences an action against B for specific performance of acontract which obliged B to transfer blackacre, his riverfront property, to A upon A’s payment to B’s lawyer of the purchase price of$5,000,000. A alleges in his action that he has discharged his promise but that B has not done what he promised to do.

If A learned thatB, subsequent to the date of A’s contract with B, had entered into a contract with C for the sale of the same property and was about todeliver to C documents to effect the sale of blackacre, A could apply for an injunction against B enjoining B from delivering to Cdocuments needed to effect the sale of blackacre to C. A court would have jurisdiction to grant an injunction because it is a remedygrounded in and one of the remedies contemplated by the statement of claim describing A’s claim against B.

But the action Acommenced against B would not give the court jurisdiction to stop C from selling whiteacre to D so that C could raise the money neededto purchase blackacre from B. A’s action against B relating to blackacre is not a sufficient foundation on which to support an injunctionenjoining C from selling whiteacre to D. [45] The principle that there must be a commencement document which serves as the foundation for any relief sought is notdiscarded in disputes between a law firm and a client or clients.

One must identify the commencement document and consider whetherthe remedy is one that falls within the framework supported by the foundational commencement document. [46] In this case, the commencement document is Shreem Holdings Inc.’s request for a review of Barr Picard’s charges filed underr. 10.13(1) of the Alberta Rules of Court. This request gives the review officer the authority to issue an interim or final certificate thatcertifies the amount of a lawyer’s charges to be paid by Shreem holdings Inc. Alberta Rules of Court, r. 10.19(4)(a).

It also accords to thereview officer the jurisdiction to make a costs award related to the review. Alberta Rules of Court, r. 10.23. In addition, a review officerhas the power to refer questions to the court. To be precise, the review officer “must refer any questions arising about the terms of aretainer agreement to the Court for a decision or direction” and “may refer any question arising about a lawyer’s charges to the Court fora decision or direction”. Alberta Rules of Court, r. 10.18(1). It is the review officer who the Alberta Rules of Court assigns the initial

responsibility of determining when a reference is appropriate. A Queen’s Bench justice may do so only if there is an appeal from areview officer’s decision. Alberta Rules of Court, r. 10.27(1)(d). [47] Rule 10.18(1) also serves as the foundation for the jurisdiction of the Court of Queen’s Bench to answer questions about aretainer agreement and “any question arising about a lawyer’s charges”. There are also other foundation pilings upon which the courtmay build its jurisdiction.

Rule 10.20(1) of the Alberta Rules of Court stipulates that the court “may direct the decision of a reviewofficer to be entered as a judgment or order”. Rule 10.27(1) gives a judge additional jurisdiction if there is an appeal against a reviewofficer’s decision. [48] There are several cases interpreting the old Alberta Rules of Court, Alta. Reg. 338/83 (“old rules”) in which masters haveordered a trial of an issue in the context of a lawyer-client dispute over lawyer charges. I referred to them in Shreem Holdings Inc. v.Barr Picard, 2013 ABQB 257, ¶ 42.

Of significance is the fact that none of the adjudicators explained the jurisdictional basis for thisdisposition. [49] In Field and Field v. Hys, (AB KB), 101 A.R. 31 (1989), Master Quinn directed a “trial of an issue as tothe liability of the clients to pay the law firm’s account”. He did so in the context of an application by Field and Field to have its taxedbill of costs directed to two persons enforced as a judgment pursuant to R. 651(2)[17] of the old rules.

The respondents, who did notappear before the taxing officer, took the position before Master Quinn that a corporation and not themselves was the law firm’s client.Master Quinn neither indicated the specific rule he relied on to order the trial of an issue nor recorded any other basis of jurisdiction toorder the trial of an issue.[18] [50] This order was one contemplated by the commencement document - an appointment for taxation by the law firm against twonamed clients. The respondents were entitled to deny that they were the clients. [51] Master Funduk also ordered the trial of an issue in Peterson, Ross v.

Kirwood, 52 A.R. 284 (1984) and Brian A. BereshProfessional Corp. v. Schneider, (AB KB), 106 A.R. 251 (QB 1990). [52] In the 1984 case, the client had taken out an appointment for the taxation of her lawyer’s account. The taxing officerdetermined the appropriate charges. Ms. Kirwood did not contest before the taxing officer that she was responsible for payment of thebill. Before Master Funduk she did. She acknowledged that she was the client but claimed that she and her lawyer had agreed that shewould not be responsible for his charges. Rather, she alleged that her husband was responsible.

The law firm invoked R. 651(2) of theold rules and asked Master Funduk to enforce the taxing officer’s certificate as a judgment. The master held that “there will be a trial ofan issue, the issue to be whether or not the client is liable for the solicitor’s bill of costs as taxed”. He too failed to expressly state whatjurisdiction he had to make this order.

But he may have assumed that he had the inherent jurisdiction to do so: Merely because the Rules, and the inherent jurisdiction of the court, give the court control over solicitors in regard to their accounts doesnot mean disputes as to liability should be dealt with summarily. It must be remembered that the control being exercised by the court iscontrol over the solicitors, not the clients. It is the solicitors, not the clients, who are officers of the court.

Merely because one of theparties to a dispute is an officer of the court is not a ground for dispensing with the right of a de facto defendant to require the other toprove his case. 52 A.R. 284, 294-95 (1984). [53] In the 1990 case, the law firm asked the taxing officer to tax bills delivered to the respondents. Mr. Beresh represented therespondents, a married couple, in some criminal matters. After the taxing officer issued his certificate, the law firm applied under R.651(2) of the old rules for an order allowing it to enforce its taxed bill of costs.

The husband denied that he agreed to assumeresponsibility for his wife’s legal fees. Master Funduk stated that Gibson v. Bassie, Kantor & Plupek, [1985] 2 Alta. UnreportedDecisions 923 (C.A.) disposed of this application. Following this precedent, the master directed that there be a trial of an issue “betweenthe applicant and the husband for the balance of the bills limited to liability only”. (AB KB), 106 A.R. 251, 253 (Q.B.1990). [54] The facts in Gibson v. Bassie, Kantor & Plupek are straightforward. Mr. Gibson retained Mr. Bassie to defend him againstserious criminal charges.

The law firm applied for taxation. The taxing officer reduced the account by a small amount. The clientappealed. Bassie, Kantor & Plupek applied for leave to enter the taxing officer’s certificate as a judgment. The chambers judge shavedmore off the bill and gave leave to enter the revised bill for judgment. The client appealed on the ground that the law firm promised tohandle his criminal case for a fixed fee.

Unwilling to allow a judgment to stand when there was a dispute as to the nature of the retainer,the Court of Appeal allowed the appeal and directed “that an issue be tried as to the terms of the retainer and whether Mr. Bassie was inbreach of them”. [1985] Alta. Unreported Decisions 923, 924. [55] No explanation was provided as to the juridical basis for the direction that there be a trial of an issue. I assume that the courtswere of the opinion that a judge of the Court of Queen’s Bench of Alberta had the inherent jurisdiction to make these orders.

Noprovision in the old rules gave anyone but a taxing officer the power to do this. [56] In Rusnak and Savaryn v. A.C.H.A.I.A. Holdings Ltd., (AB KB), 51 A.R. 196 (Q.B. 1983), two personsappealed a master’s order giving a taxing officer’s certificate the status of a judgment. For some reason, the taxing officer, after hearingfrom the alleged clients that they were not liable to pay the lawyer’s charges, declined to exercise his jurisdiction under old R. 634[19]and refer this question to the court. But he did determine the value of the services the law firm performed.

The law firm then asked themaster to file the taxed bill of costs as a judgment under R. 651. The master granted this application. Hence the appeal. JusticeMcFadyen allowed the appeal: “It is my view that the discretion [in R. 651(2) of the old rules] ought not to be exercised in favour of theapplicant where a substantial issue exists as to the liability of the defendants or any of them”. 51 A.R. 196, 201 (Q.B. 1983). She did notdirect that the dispute between the law firm and the appellants be the subject of a trial.

But she did say this: “[W]here any issues remainunresolved, the application under Rule 651(2) should either be rejected and the solicitor left to his remedy to bring an action by way ofStatement of Claim or there should be a direction that the unresolved issue be tried”. 51 A.R. 196, 200 (Q.B. 1984). Unfortunately, shedid not explain what authority the master had to direct a trial of an issue. Old Rule 634 stated that the “taxing officer may refer to the

court for determination any question arising in a taxation”. As far as I can tell, no provision in the old rules gave similar power to any other court officer. D. Application of the General Principles [ 57 ] Barr Picard asks this Court to order, pursuant to r. 7.1 of the Alberta Rules of Court , a hearing to answer the following questions: i. Is Barr Picard’s ability to recover billed legal fees restricted to it’s [sic] initial estimate of $15,000 to $20,000; ii.

Are [Shreem Holdings Inc. and Deepak Kumar] ... jointly and severally liable to Barr Picard for payment of legal fees, or are either Deepak Kumar or Shreem Holdings Inc. individually liable for the billed legal fees; and iii.

Are [Shreem Holdings Inc. and Deepak Kumar] ... obligated to pay interest at a rate of 12% pursuant to the terms of Retainer Agreement. [ 58 ] This Court has no jurisdiction to grant the relief the law firm seeks. [ 59 ] This is so for several reasons. [ 60 ] First, the request filed by Shreem Holdings Inc., pursuant to r. 10.13(1) of the Alberta Rules of Court , to have the law firm’s account reviewed does not serve as a foundation for the second and third questions Barr Picard wants answered.

The request was based on the assumption that there is a lawyer-client relationship between Barr Picard and Shreem Holdings Inc. and not between Barr Picard and both of Shreem Holdings Inc. and Deepak Kumar. The second query – essentially, whether Deepak Kumar is also a client of Barr Picard’s – is not within the range of issues which can be grounded in the request filed by Shreem Holdings Inc. The third query also falls outside the parameter of issues which may reasonably be contemplated by the request filed by Shreem Holdings Inc.

The request also placed in issue the amount of fees, charges and disbursements the client is obligated to pay the law firm. The interest rate has nothing to do with the amount of fees, charges and disbursements to which the law firm is entitled.

Once this amount is determined, the rate of interest payable is a completely different question. [ 61 ] Second, while the first question, so long as it applies only to Shreem Holdings Inc., does not suffer from the defect just described that afflicts the second and third questions, there is another barrier which impedes the Court’s ability to direct that this query be answered. No rule allows the Court to make this direction. Rule 10.18(1) (

a) of the Alberta Rules of Court bestows original jurisdiction on the review officer to make this reference: “a review officer ... must refer any question arising about the terms of a retainer agreement to the Court for decision or direction”. This was not done. Had the law firm appealed the review officer’s decision, a right it had under r. 10.26(1) of the Alberta Rules of Court , this Court may well have concluded that it would have been appropriate to revoke the review officer’s decision, a power given under r. 10.27(a)(

b) and direct that an inquiry be undertaken to determine whether Barr Picard promised to perform the legal services contracted for in return for a fee of $15,000, a power given under r. 10.27(d). But this is not an appeal and the Court cannot use r. 10.27(1) . [ 62 ] Nor can the Court make the requested order on account of r. 7.1(1), which reads as follows: On application, the Court may (

a) order a question or an issue to be heard or tried before, at or after a trial ... ... (

d) direct that different questions of fact in an action be tried by different modes. [ 63 ] Rule 7.1(

a) is not applicable because the r. 10.13(1) request does not involve a protocol of which a trial is part, a precondition to the utilization of r. 7.1(1)(a). Rule 7.1(1)(

d) is of no assistance either. This provision states that “Court may ... direct that different questions of fact in an action be tried by different modes”. What is an “action”? While it is not a defined term, r. 3.2(1) serves as an effective substitute for a definition. Rule 3.2(1) of the Alberta Rules of Court is as follows: An action may be started only by filing in the appropriate judicial centre ... (

a) a statement of claim by a plaintiff against a defendant, (

b) an originating application by an originating applicant against a respondent, or (

c) a notice of appeal, reference or other procedure or method specifically authorized or permitted by an enactment. [ 64 ] The request Shreem Holdings Inc. filed is definitely not a statement of claim or an originating application. Does it fall within r. 3.2(1) (c)? Shreem Holding Inc.’s request for review is not an appeal or a reference. Is it a “procedure or method specifically authorized or permitted by an enactment”? It is not. An “enactment”, according to the definition part of the Alberta Rules of Court , “means

an Act or a regulation or any portion of

an Act or regulation of Alberta or Canada but does not include these rules”. Given that Shreem Holding Inc.’s request is a product of the Alberta Rules of Court and not the Legal Profession Act or any other statute, it follows that r. 10.13(1) request is not a “procedure or method specifically authorized or permitted by an enactment”. [ 65 ] Does this Court have the inherent jurisdiction to order a hearing to determine whether Barr Picard promised to provide legal services to Shreem Holdings Inc. for a fixed fee? No. [ 66 ] I am satisfied that

Part 10, Division 1 of the Alberta Rules of Court constitutes a comprehensive code of a discrete subject matter – the review of a lawyer’s charges outside the confines of an action for unpaid charges. This unit determines the amount which a

lawyer may charge her client and the obligations a client has to her lawyer. It assigns particular tasks to different adjudicators anddetermines who may apply for a review, what may be done with the certificate of review and the consequences of a review beinginitiated.

This regime occupies the field and leaves no room for the Court to exercise its inherent jurisdiction and order that the firstquestion be answered through a hearing process. [67] The existence of a comprehensive protocol in the Alberta Rules of Court on a discrete topic is a clear indication on the part ofthe legislature and the judges of the superior courts[20] of Alberta that any matter covered by the comprehensive code is to be governedby the applicable rule and not the court’s inherent jurisdiction. Re Stelco Inc., (ON CA), 196 O.A.C. 142, 152 (C.A.2005) & Etri Fans Ltd. v.

N.M.B. (U.K.) Ltd., [1987] 1 W.L.R. 1110, 1114 (C.A.). [68] This is not surprising. It does not produce unfairness. A lawyer has the right to commence an action against a client seekingpayment of unpaid charges. [69] One of the rules within

Part 10, Division 1 sets out the norm governing references to the Court of Queen’s Bench for thedetermination of an outstanding question. Rule 10.18(1) grants the review officer the power to refer a question about a lawyer’s chargesto the Court for a decision or direction. No other provision gives any other officer or judge of the Court of Queen’s Bench the originaljurisdiction to do so. A judge of the Court of Queen’s Bench may do so on appeal. Rule. 10.27(1) allows a judge to allow an appeal andeither direct the review officer to refer to a question to the court under r. 10.18(1) or do so directly. [70] Even if I had not concluded that

Part 10 Division 1 was a comprehensive code, I would have declined to order the relief BarrPicard requests. I do not believe that exercising this Court’s inherent jurisdiction in the manner requested would complement thestatutory protocol. My judgment in Shreem Holdings Inc. v. Barr Picard, 2013 ABQB 257, highlights some of the problems: [44] In the event that the parties consider the trial on an issue concept as a meritorious option, they may wish to address the followingquestions.

If the Court directs that a trial of an issue - objectively viewed, did Barr Picard promise Shreem Holdings Inc. that it wouldprosecute a major commercial action for $15,000 - and adjudges the question presented, what does the Court do next? [45] If the Court rejects Shreem Holdings Inc.’s claim that Barr Picard promised to act for $15,000, does the Court amend thecertificate of review to delete Mr. Christensen’s qualifications? Does the Court have jurisdiction to do this?

Is this step consistent withrule 10.18(1) of the Alberta Rules of Court which records the conditions when a review officer may refer a question to the Court ofQueen’s Bench? If an issue upon which the review officer cannot adjudicate arises, rule 10.18(1) authorizes the officer to refer thequestion to a court. Presumably, after receiving the Court’s answer to the question referred to it, the review officer would proceed withhis reserved jurisdiction to make an assessment of reasonableness and prepare a certificate of review clear of qualifications. ...

What rulein the Alberta Rules of Court, common law principle or statutory provision, such as the Judicature Act, R.S.A. 2000, c. J-2, gives theCourt jurisdiction to amend the certificate of review? [46] If the Court accepts Shreem Holdings Inc.’s position and declares that Barr Picard can only bill $15,000 for its legal services,what does the Court do? There is no rule which allows the Court to amend the certificate of review. Does rule 10.21 of the Alberta Rulesof Court apply?

This rule gives the client the right to apply to the Court for an order directing the lawyer to repay to the client a sumequal to the differences between the amount the client has paid the lawyer and the assessment made by the review officer.

Does it applyonly if a certificate of review declares that the lawyer owes the client money? [47] And if the court does not have the jurisdiction to amend the certificate of review, what is the value of ordering a trial of an issue?A determination made outside of the confines of a proceeding may be of limited value. [71] This passage indicates that in assessing the complementarity of a statutory scheme and the consequences of the exercise of acourt’s inherent jurisdiction, a court may find it helpful to ask if the consequences associated with the exercise of a court’s inherentjurisdiction are consistent with the elements of the statutory scheme or produce results not contemplated by the statutory scheme.

Theoverarching question is whether the two regimes may work harmoniously together. [72] I recognize that there are a number of cases considering the old rules which concluded that others besides the taxing officerhad the jurisdiction to order a trial of an issue. Unfortunately, none of them explain why they held this view. If the adjudicators basedtheir opinions on the court’s inherent jurisdiction, with respect, I cannot accept this result. If they concluded that the old rules served asthe font of jurisdiction, it would have been desirable to know which rules they had in mind.

My review of the old rules does not lead meto conclude that there was one which would serve this purpose. [73] This conclusion does not deprive the law firm of a forum to resolve the issues which they ask this court to resolve. As Iindicated in Shreem Holdings Inc. v. Barr Picard, 2013 ABQB 257, ¶ 48, law firms always have the option of suing a client for unpaidcharges. See Canadian Human Rights Commission v.

Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, 656 (“thepurpose of the doctrine of inherent jurisdiction ... is simply to ensure that a right will not be without a superior court forum in which itcan be recognized”) & A.

Poley, A Treatise upon the Law Affecting Solicitors of the Supreme Court 411 (1897) (“the inherent powers ofthe Court will probably not be exercised while there is a remedy under the statute”). [74] If I am in error and this Court had the inherent jurisdiction to order a hearing to answer a question, I would have exercised itand directed that the following question be answered: Did Shreem Holdings Inc. and Barr Picard agree that the law firm would charge$15,000 to perform the legal services Barr Picard provided?

As noted above, this remedy is one of the remedial measures which is basedon the foundation document – Shreem Holdings Inc.’s request under r. 10.13(1). VI. Conclusion

[ 75 ] The Court denies Barr Picard’s request to “set this matter for a Trial of Particular Questions or Issues pursuant to Rule 7.1 of the Alberta Rules of Court ”. [ 76 ] There will be no costs ordered. Heard on March 13, 2013. Dated at Edmonton, Alberta on February 26, 2014. Thomas W. Wakeling Justice of the Court of Queen’s Bench of Alberta Appearances: Benjamin G. Taylor Barr Picard for the Applicant Shreem Holdings Inc.