MS v DM, 2014 ABQB 702

Court of Queen ’ s Bench of Alberta Citation: MS v DM, 2014 ABQB 702 Date: 20141114 Docket: 0503 16142 Registry: Edmonton Between: MS, a minor, by his Next Friend TS Plaintiff - and - DM Junior and John Doe Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Yungwirth _______________________________________________________ Introduction [ 1 ] This is an application, under the Minors’ Property Act , SA 2004, c M-18.1, for an Order confirming the settlement of the personal injury claim of MS [M].

The application is brought by M’s next friend, TS [Applicant or Ms. TS], who is M’s aunt and legal guardian, pursuant to a Private Guardianship Order granted February 10, 2004. Ms. TS also seeks an Order confirming the legal fees of Robert P. Lee, based on a 25% contingency fee. [ 2 ] The Public Trustee for Alberta recommends that the settlement be confirmed. However, the Public Trustee is opposed to confirmation of the legal fees and takes the position that the proposed legal fees should be reduced substantially in all of the circumstances. [ 3 ] At the application, Kendall Power appeared on Mr. Lee’s behalf.

[ 4 ] Mr. Lee is claiming legal fees of $240,560.67. The Public Trustee submits that a fair and reasonable amount to be paid for Mr. Lee’s fees is $50,000. [ 5 ] When this matter came before the Court for this application, the enforceability of the relevant Solicitor-Client Contingency Fee Retainer Agreement was not addressed.

The focus of the application was an assessment of the fairness and reasonableness of fees being charged pursuant to the Agreement. [ 6 ] Following the application, both Counsel were given an opportunity to address the issue of whether or not the Agreement complied with the Alberta Rules of Court [ Rules of Court ]. Mr. Lee takes the position that the Agreement was properly prepared pursuant to the Rules of Court that were in force at the time that it was created and that all of the necessary formalities of executing the documents were properly adhered to.

The Public Trustee takes the position that the Agreement does not comply with the former Rules of Court and that Mr. Lee is therefore entitled only to those legal fees that would have been payable in the absence of a contingency fee agreement, without regard to the contingency. [ 7 ] For reasons which follow, I confirm the settlement for $950,000.00 plus taxable costs and disbursements, and I find that a fair and reasonable fee for Mr. Lee’s services is $65,000.00 plus disbursements of $38,884.35, other charges of $290.65, plus GST. Mr.

Lee will also be repaid from the settlement amount, the advance of $1,866.45 that he made to Ms. TS. Background Facts [ 8 ] On October 5, 2003, shortly after his second birthday, M was run over by a half ton truck being driven by his grandfather, and sustained severe traumatic injuries to his lower extremities and pelvis which ultimately required the amputation of his left leg. M underwent several extensive surgeries in his first month in the hospital following the accident. There were many complications.

On November 24, 2003, M was transferred to the Glenrose Rehabilitation Hospital for further rehabilitation and to be fitted with a prosthesis. He was discharged from the Glenrose on December 23, 2003. [ 9 ] On April 11, 2005, a Solicitor-Client Contingent Fee Retainer Agreement [the Agreement] was entered into between Robert P.

Lee, Barrister and Solicitor, and MS by his Next Friend, TS (referred to in the Agreement as “the Clients”). [ 10 ] Pursuant to clause 4 of the Agreement, the Clients agreed to pay the Solicitor on the following basis: a) 25% of the actual recovery for personal injury if by way of settlement before filing a Statement of Claim; b) 30% of the actual recovery for personal injury if by way of settlement after filing a Statement of Claim but before filing a Certificate of Readiness; c) 35% of any actual recovery for personal injury if by way of judgment or settlement obtained after filing a Certificate of Readiness;

d) The Clients agrees (sic) that the above contingency fee shall also apply to the fee portion of any taxable party-party Court costs, excluding disbursements, obtained from the Defendant.

The amount of actual recovery will include all payments recovered for the client from the date of this agreement to the date of settlement or judgment. [ 11 ] Clause 8 of the Agreement provides: If the clients hires (sic) another firm to prosecute or settle this case or settles the case without the Solicitor’s consent or fails (sic) to co-operate with the Solicitor, the Clients will immediately pay the Solicitor all disbursements. At the conclusion of the case, the Clients will pay the Solicitor’s fee at the rate of $250/hour.

The Clients understands (sic) that the amount of the hourly Solicitor’s fee may exceed the amount of the contingency fee. [ 12 ] Clause 9 of the Agreement provides: This Agreement may be reviewed by the Clerk of the Court at Edmonton, Alberta, at the client’s request and may, either at the instance of the Clerk of the Court or the Client, be further reviewed by a Justice of the Court of Queen’s Bench of Alberta and the Clerk or the Justice may vary, modify or disallow this agreement or any part thereof. [ 13 ] The matter was resolved after a Statement of Claim was filed, but before a Certificate of Readiness was filed.

Notwithstanding that the Agreement provides for a contingency fee of 30% in these circumstances, Mr.

Lee is seeking a contingency fee of 25%. [ 14 ] According to the court file, the following steps were taken in the action prior to the resolution of the matter in December of 2012: 1) A Statement of Claim and Consent of Next Friend were both filed on September 21, 2005 by Robert Lee; 2) A Statement of Claim was served on the Defendant DM, Jr. on April 4, 2006 at Chetah, Alberta; 3) A Statement of Defence of DM, Jr. was filed by Brownlee LLP on October 10, 2006; 4) An Affidavit of Records of TS, sworn before an RCMP officer at the Town of Assumption on January 5, 2007, was filed on January 15, 2007 by Robert Lee.

The Affidavit listed 9 records having a total of 1308 pages and consisting of 7 medical charts, an Alberta Health Care Statement of Benefits and an Automobile Benefits Proof of Claim Form;

5) A Third Party Notice was filed by Brownlee LLP on April 5, 2007 alleging negligence by M’s grandmother and others; 6) A Third Party Notice was served on RM on April 23, 2007, by Brownlee LLP; 7) An Appointment for Examination for Discovery was filed by Brownlee LLP on September 21, 2007 for an examination on November 1, 2007; 8) An Appointment for Examination for Discovery was filed by Robert Lee on September 24, 2007 for an examination on November 2, 2007; 9) An Affidavit of Records of DM, Jr. was filed November 6, 2007, by Brownlee LLP.

There were 3 listed records – Alberta Collision Report Form, copy of Private Guardianship Order, and bundle of documents consisting of medical records from Glenrose and the University of Alberta Hospital (45 pages); 10) An Affidavit of TS, sworn February 3, 2010, was filed June 16, 2010, by Robert Lee, in support of an application approving a settlement of $450,000 all inclusive. Ms. TS deposes that she would like to accept the offer of $450,000 and that she did accept it over the phone on February 4, 2009.

Attached to the Affidavit were several reports from the University of Alberta Hospital chart, the Glenrose Hospital Discharge

Summary and Hospital History, and several reports from the Glenrose Rehabilitation Hospital Children’s Limb Difference Clinic. There were no reports regarding loss of future income or costs of future care attached to the Affidavit; 11) An Affidavit of Cynthia Orwaard (assistant to Mr. Lee), sworn March 10, 2010, was filed June 16, 2010. Attached to it as an exhibit, was a letter dated February 5, 2010 from Manager NIHB (Non-Insured Health Benefits), First Nations and Inuit Health; 12) An Affidavit of Cynthia Orwaard, sworn June 15, 2010, was filed June 15, 2010.

Attached to it as exhibits were Child Intervention Reports related to M, letters dated March 11, 2010, March 25, 2010, and May 11, 2010 respectively from Mr. Lee to Jim Moan at the Glenrose, correspondence between Mr. Lee and NIHB, First Nations & Inuit Health, and letter dated March 18, 2010 from Smith Structured Settlements regarding proposed structured settlements for M; 13) A Notice of Motion was filed by Mr.

Lee on September 8, 2010, and returnable September 21, 2010, seeking an Order approving a settlement at $450,000 all inclusive; 14) An Affidavit of Dorrie Owen, legal assistant in the Office of the Public Trustee, was filed September 17, 2010. Attached as exhibits were copies of correspondence between James Weir, lawyer in the Public Trustee’s office, and Mr.

Lee, related to the requests for information, the delays, the possibility of a structured settlement, the concerns that settlement on the basis of the first offer was too low, the need for interest to be paid on the settlement and other matters related to the litigation; 15) An Order was issued on September 21, 2010, by Macklin, J in chambers, dismissing Mr. Lee’s application to accept an “all inclusive” settlement for $450,000; 16) A Notice to Admit Facts was filed by Mr.

Lee on September 24, 2010; 17) A Reply to Notice to Admit Facts was filed by Brownlee LLP on October 21, 2010; [ 15 ] There was nothing filed in the court record for the period from November 6, 2007 to March 10, 2010 and from the period October 21, 2010 to August 16, 2013. [ 16 ] At some point following the application before Macklin, J, on September 21, 2010, Mr. Lee retained lawyer Kendall Power to conclude the file. Mr. Lee also obtained the following reports on the dates indicated: 1.

Conway, Scanlan & Associates Vocational Assessment Report, dated November 29, 2011; The Assessor did not meet with or assess M but reviewed his background information. The Assessor concluded that M will not be able to sustain competitive employment, even in a very restricted range of sedentary, entry-level, basic service occupations, for more than transient periods; 2. Occupational Therapy Functional Evaluation and Cost of Future Care Report, dated February 4, 2011, prepared by Functional Assessments Consultation and Therapy Services, which confirmed M’s future care requirements.

M was assessed in High Level, Alberta on November 30, 2010 for this report; 3. Deloitte Touche LLP Economist Report, dated January 23, 2012, confirming the present value of M’s future care requirements and his future loss of income earning entitlement. Those calculations indicated future loss of income earning capacity in the range of $114,593 to $1,700,000 and the present value of future care requirements to be $1,100,000. [ 17 ] The Defendant provided the following additional reports: 1.

Review of Occupational Therapy Functional Evaluation and Cost of Future Care Report, dated October 10, 2012, completed by Karen Kirker, B.Sc.O.T., M.Sc.O.T., which comments on the recommendations for cost of future care indicated by the Plaintiff’s expert; 2. Assessment and Quantification of Economic Damages report, dated October 24, 2012, from Kingston Ross Pasnak LLP. That report indicated future loss of income at $38,487 and cost of future care at $493,543. [ 18 ] In December of 2012, with Mr.

Power’s assistance, the parties agreed through mediation on a settlement of $950,000 plus taxable costs and disbursements. A good portion of the settlement funds will be placed in a Structured Settlement which will provide M with income replacement after he turns 18. Ms. TS agrees with a settlement on this basis. [ 19 ] The Defendant, Mr. DM, had third party liability insurance on his vehicle with a policy limit of $1,000,000.

[ 20 ] An Application was filed November 14, 2013 by Mr. Lee, seeking an Order confirming the settlement and legal fees based on a 25% Contingency Fee Agreement. The evidence relied on was the Affidavit of TS, sworn August 9, 2013, and Affidavit of Robert Lee, sworn and filed September 26, 2013. The Affidavit of Ms.

TS included as exhibits, the Operative Procedure and Surgical Reports from the University of Alberta Hospital, the Glenrose Rehabilitation Hospital Children’s Limb Difference Clinic Records, the Vocational Assessment Report, dated November 29, 2011, the Cost of Future Care Report dated February 7, 2011, the Deloitte Touche LLP Report, dated January 23, 2012, the Defendant’s rebuttal Occupational Therapy Report, dated October 10, 2012, and

Summary of Damages Report, dated October 24, 2012, and a Bill of Costs. The settlement indicated in that Affidavit was $950,000 plus taxable costs and disbursements. [ 21 ] The Affidavit of Mr. Lee sworn September 26, 2013, attaches his Revised Bill of Costs, the Solicitor-Client Contingency Fee Retainer Agreement, dated April 11, 2005, and his Statement of Account, dated September 26, 2013. That account is for a fee of $240,560.67 plus disbursements of $38,884.35 and other charges of $290.65.

When combined with GST and repayment of client advances for $1,866.45, the account total is $295,588.89. [ 22 ] The Revised Bill of Costs indicates fees of $12,350.00, disbursements of $38,819.35, other charges of $253.45, and GST of $2,571.14. The total Revised Bill of Costs amount is $53,993.94. [ 23 ] On February 28, 2014, Mr. Lee filed an Amended Application for an Order confirming the proposed settlement as reasonable and an Order confirming legal fees based on a 25% contingency fee agreement.

In support of that application, he filed another Affidavit that he swore on February 28, 2014 (filed May 9, 2014) and an Affidavit of George Lucki, M. Phil, R. Psych, FRSA, sworn and filed on May 14, 2014. [ 24 ] Mr. Lucki’s Affidavit attaches his 18 page report containing what is described as a “psychological litigation support opinion”. In that report, Mr. Lucki addresses the question of “whether the settlement you initially recommended ($400,000.00) was not patently unreasonable given a (sic) specific circumstances of the case”. Mr.

Lucki’s report is described as an “Expert Report” in paragraph 1 of his Affidavit. [ 25 ] Mr. Lee’s Affidavit of February 28, 2014 provides his explanation for why he considered his account to be reasonable. In that Affidavit, he describes the nature of his practice. He also describes his concerns in M’s case about causation of damages due to issues with M’s upbringing, and his concerns related to proving the costs of future care due to M’s failure to attend appointments and use his equipment.

He expresses concerns regarding the loss of future income claim given that all of M’s family had poor educational backgrounds and poor work records. He was also concerned that M had not been provided with proper care and support by his family in order to improve his circumstances and that this would impact the claim for loss of income. He explains that he had some concerns related to liability because M’s family minimized the negligence of the Defendant and he was concerned that they would try to protect him. Mr.

Lee also explains that he often had difficulty contacting M’s guardian and feared that the family may not follow through with the litigation. Mr. Lee relies on his concerns to justify his recommendation that the initial offer of $450,000 be accepted by M’s guardian. Paragraph 37 of Mr. Lee’s Affidavit indicates that Mr. Power spent 30 hours to achieve the $950,000 settlement. [ 26 ] On April 17, 2014, the Public Trustee filed an Application seeking an Order directing Mr.

Lee to provide a complete copy of his file to the Public Trustee on or before April 30, 2014 so that they could review it for the Special Chambers Application set for June 6, 2014. The Application says that the main issue is whether or not the fees being charged by Mr. Lee are reasonable and that the Public Trustee wishes to review the file to determine if the Public Trustee can recommend the settlement. In support of the application is the Affidavit of Dorrie Owen, filed April 17, 2014, which attaches correspondence between Counsel related to requests for production of Mr.

Lee’s file. [ 27 ] By Order granted April 25, 2014, Browne, J ordered Mr. Lee to provide a copy of his file to counsel for the Public Trustee on or before April 30, 2014. [ 28 ] Mr. Lee was questioned on his Affidavit sworn February 28, 2014, which included questioning on what was contained in his file. Applicable Legal Principles [ 29 ] Contingency fee agreement requirements are set out in rule 10.7 of the Alberta Rules of Court , Alta Reg 124/2010.

Pursuant to rule 10.8, if a lawyer does not comply with rule 10.7(1) to (4) and (7), he or she is entitled only to a lawyer’s charges determined in accordance with rule 10.2 as if no contingency fee agreement had been entered into. [ 30 ] Contingency fee agreements are subject to the rules related to the right of review and appeal from the review officer’s decision (Part 10, Division 1, Subdivisions 4 and 5 respectively). [ 31 ] As the contingency fee agreement in this case was entered into before the current Rules of Court came into effect on November 1, 2010, the transitional rules must be considered.

Rule 15.5(1) provides that the contingency fee agreement requirements in rule 10.7(2) do not apply to a contingency fee agreement entered into before that rule came into effect if the agreement complies with the former rules.

The former Alberta Rules of Court , Alta Reg 390/1968, was in force when the Agreement in this case was made and so a determination must be made as to whether or not the Agreement complied with the contingency fee agreement rules 615 to 620 in effect at that time. [ 32 ] Even where a contingency fee agreement complies with the applicable provisions of the Rules of Court , issues can arise between the parties to such an agreement, related to its

interpretation and its reasonableness. [ 33 ] The court’s jurisdiction to deal with those issues was explained by the Alberta Court of Appeal in the case of Morrison v Rod Pantony Professional Corporation , 2008 ABCA 145 at paras 12-13 , 429 AR 259:

[12] With respect to contingency fee agreements, the court has a dual jurisdiction: (

a) It has its normal jurisdiction to interpret and enforce contracts; and (

b) It has an exceptional jurisdiction under R. 619(4) to “vary, modify or disallow the agreement”. The power to vary a contract found in the Rule is not one available to the court at common law. [13] As a general rule, issues regarding the

interpretation of a contingency fee agreement should be resolved first by the ordinary rules respecting contractual

interpretation. Once the proper legal

interpretation of the retainer agreement has been established, the Taxing Officer (and the court) can then review it for unreasonableness or unconscionability under R. 619(4). [ 34 ] The authority given by rule 619(4) for the Court to vary, modify, or disallow the agreement is now found in rule 10.18(3)(

b) of the Rules of Court . [ 35 ] The Law Society of Alberta Code of Conduct , rules 2.06(2), also addresses contingency agreements. The Rule and commentary provide: 2.06

(2) Subject to Rule 2.06 (1), a lawyer may enter into a written agreement in accordance with governing legislation that provides that the lawyer’s fee is contingent, in whole or in part, on the outcome of the matter for which the lawyer’s services are to be provided. Commentary In determining the appropriate percentage or other basis of a contingency fee, a lawyer and client should consider a number of factors, including the likelihood of success, the nature and complexity of the claim, the expense and risk of pursuing it and the amount of the expected recovery.

Party-and-party costs received by a lawyer are the property of the client and should therefore be accounted for to the client in accordance with the Alberta Rules of Court , Rule 10.7. The test is whether the fee, in all of the circumstances, is fair and reasonable. Although a lawyer is generally permitted to terminate the professional relationship with a client and withdraw services if there is justifiable cause as set out in Rule 2.07, special circumstances apply when the retainer is pursuant to a contingency agreement.

In such circumstances, the lawyer has impliedly undertaken the risk of not being paid in the event the suit is unsuccessful.

Accordingly, a lawyer cannot withdraw from representation for reasons other than those set out in Rule 2.07(5) (Obligatory Withdrawal) unless the written contingency contract specifically states that the lawyer has a right to do so and sets out the circumstances under which this may occur. [ 36 ] There are other important considerations when dealing with contingency fee agreements. [ 37 ] The aim of contingency fees is to make court proceedings available to people who could not otherwise afford to have their legal rights determined.

This goal should be encouraged and a flexible approach should be taken to problems arising from contingency fee arrangements in order to facilitate access to the courts for more Canadians: Rusk (Next Friend of) v Medicine Hat (City) , 2001 ABQB 1020 at para 15 , 305 AR 332 [ Rusk ] , citing Coronation Insurance v Florence, [1994] SCJ No 116 at para 14 (SCC) . [ 38 ] That said, one must also consider that the people who rely on contingency fee arrangements are often vulnerable due to poverty, impact of injuries, educational status, or other social disadvantages.

The Alberta Rules of Court , Alta Reg 124/2010 , Law Society Code of Conduct , and jurisprudence related to contingency fee agreements and other legal fee arrangements offer some protection for this potentially vulnerable segment of the population. [ 39 ] Accordingly, when considering applications that challenge the

interpretation or fairness of a contingency fee agreement, the necessity and importance of encouraging this form of legal fee arrangement should be balanced with the need to safeguard the citizens who rely on contingency fee agreements in order to have access to justice. [ 40 ] Both Counsel agreed that when considering and assessing the fairness and reasonableness of fees being charged pursuant to a contingency fee agreement, particularly when dealing with infants who are subject to such agreements, the law to be applied is set out in Rusk . [ 41 ] In relation to infants, the Court in Rusk at paras 9-11 , relied on the case of MacLeod v Harrington (Public Trustee of) , [1995] BCJ No 2717 (BCCA) , in confirming that the superior courts’ jurisdiction to review and tax infant contingency fee accounts is based on: 1. the inherent jurisdiction of the [superior court] to control its officers including the amount of solicitor’s fees; 2. the parens patriae inherent jurisdiction of the court to protect the welfare of infants; and 3. statutory instruments and rules of court which explicitly permit court intervention into infant settlements. [ 42 ] To summarize: • in considering the Agreement in this case, I must first consider if it complied with the former Alberta Rules of Court in effect when it was made.

If it did comply with the former rules, then the current rules will not be applicable and the former rules will determine if the Agreement is enforceable. If the Agreement did not comply with the former rules, then the current rules will apply to determine the enforceability of the Agreement; • If the Agreement is enforceable, then I must review it for unreasonableness or unconscionability. The principles set out in Rusk provide a guide when considering the reasonableness of the fee;

• If the Agreement is not enforceable, then a reasonable fee must be determined in accordance with the applicable rule. When considering the reasonableness of a fee, I can look to rule 10.2 of the Alberta Rules of Court (or rule 613 of the former rules if applicable).

However, the factors listed in Rusk should also be considered given that the parties proceeded on the basis that they had a valid contingency agreement and given the unique circumstances of a contingency arrangement when compared to a more traditional retainer agreement. [ 43 ] The factors outlined in Rusk and the cases referred to in that decision, can be summarized as follows: 1. What are the financial circumstances of the client? Would he/she have been unable to pursue his/her claim without the services of a solicitor who would take the matter on a contingency fee basis? 2.

Who bears the responsibility for payment of disbursements? If the lawyer is paying the disbursements “up front” and if the matter is not successfully resolved, is it likely that the client will be able to reimburse the lawyer for those disbursements? 3. What is the level of complexity and difficulty involved in the issues of liability and quantum of damages? 4. Is liability in issue? 5. Is the opposing party well represented? 6. What is the overall risk being assumed by the lawyer in undertaking to represent the client on a contingency basis – considering both time to be spent and the cost of disbursements? 7.

What is the experience of the lawyer? Does the lawyer have a particular expertise in dealing with the subject matter of the claim? 8. Did the lawyer act efficiently in identifying the areas of concern? 9. How much time was spent by the lawyer on the file? 10. At what point during the conduct of the matter, was it resolved? 11. How important was the successful conclusion of the litigation to the client? 12. Was the settlement a good one for the client? [ 44 ] Many of these factors overlap with the factors listed in rule 10.2 .

Analysis [ 45 ] There are 4 issues for determination by the Court on this application: 1) Should the Court confirm the overall settlement of $950,000 plus taxable costs and disbursements? 2) Is the contingency fee agreement between the parties enforceable? 3) If the contingency fee agreement is enforceable, is there any reason to vary, modify or disallow this agreement or any part thereof? 4) If the contingency fee agreement is not enforceable, what is the fair and reasonable fee to which Mr.

Lee is entitled in all of the circumstances? [ 46 ] On the first issue, the parties all agree that the overall settlement amount is reasonable and that it should be confirmed by the Court. The Defendant’s insurance limits are $1,000,000. The Defendant is M’s grandfather and co-guardian of M. He is already providing for M’s needs from his own resources.

If M were to obtain judgment against his grandfather, there is no indication that the grandfather would have the ability to pay the judgment personally, and it would generally not be in M’s best interests to attempt to enforce a judgment against the Defendant personally. [ 47 ] In addition, the delays caused by taking the matter to trial would not be in M’s best interests. [ 48 ] The Public Trustee has expressed a concern that the evidence introduced by Mr.

Lee in the course of this application may have undermined M’s position in the litigation, and for that reason, the Public Trustee is of the view that it would not be in M’s best interests to disturb the settlement. [ 49 ] For all of the above reasons, I am of the view that the settlement should be confirmed and I so order. [ 50 ] I move now to the issue of whether or not the Agreement is enforceable. [ 51 ] Rules 616, 618 and 619 of the former Rules of Court provide as follows: 616(1) A contingency fee agreement (

a) must be in writing, and (

b) must be signed by the lawyer and the lawyer's client, or by their authorized agents.

(2) To be enforceable, a contingency fee agreement must contain the following particulars in precise and understandable terms: (

a) the name and address of each client; (

b) the name and address of the lawyer; (

c) a statement of the nature of the claim; (

d) a statement of the event or contingency upon which legal fees are to be paid to the lawyer; (

e) a statement about (

i) the manner in which the contingency fee is to be calculated; (ii) the maximum fee payable, or the maximum rate calculated, after deducting disbursements; (iii) whether the client is responsible to pay disbursements and, if so, a general description of types of disbursements likely to be incurred, other than relatively minor disbursements; (

f) if the lawyer is to receive any taxable costs that are awarded, a statement (

i) that the taxable costs are intended to be a complete or partial reimbursement of the client's legal expenses, (ii) that taxable costs are the property of the client and that by signing the contingency fee agreement that client is waiving the right to any taxable costs payable to the lawyer in accordance with subclause (iv), (iii) that taxable costs retained by the lawyer will be in addition to the lawyer's percentage, fixed or other form of legal fees, and (iv) that the percentage of taxable costs that may be received by the lawyer may not exceed the percentage of the judgment or settlement the lawyer is entitled to receive in legal fees; (

g) a statement that, if the client gives notice in writing to the lawyer within 5 days after the client's copy of the contingency fee agreement is served on the client, the client may terminate the contingency fee agreement, without incurring any liability for fees, but that the client is liable to reimburse the lawyer for reasonable disbursements; (

h) a statement that (

i) a taxing officer may, on request of the client, review the contingency fee agreement and any account rendered under it, or both, and (ii) the agreement and any account may be further reviewed by a judge of the Court of Queen's Bench, on request of the client or the Clerk of the Court.

(3) The contingency fee agreement must be witnessed by a person who sees the client actually sign the agreement, who must then swear an affidavit of execution.

(4) The client must be served with a copy of the signed contingency fee agreement within 10 days after the date on which the agreement is signed, and an affidavit of service to that effect must be executed by the person who served the agreement.

(5) A client may terminate a contingency fee agreement without incurring liability for payment of any legal fees related to or arising from the agreement, but is liable to pay reasonable disbursements, if the client, within 5 days after receipt of the copy of the contingency fee agreement, gives written notice of the termination to the lawyer.

(6) If a contingency fee agreement provides that a lawyer is entitled to taxable costs, the lawyer is not entitled to receive from the taxable costs any more than the percentage the lawyer is entitled to receive in legal fees from a judgment or settlement.

(7) Every account rendered under a contingency fee agreement must contain a statement that (

a) a taxing officer may, at the request of the client, determine the fairness and reasonableness of the account or the contingency fee agreement, or both, and (

b) the agreement and any account may be further reviewed by a judge of the Court of Queen's Bench on request of the client or the Clerk of the Court.

(8) Subrules (2)(e), (f), (

g) and (h), (3), (4), (5) and (6) do not apply to a contingency fee agreement entered into before May 1, 2000 if (

a) the agreement complies with this Rule as it existed before May 1, 2000, and (

b) a copy of the agreement was filed with the Clerk of the Court in accordance with Rule 617 as it existed before May 1, 2000. … 618 If a lawyer does not comply with Rule 616, the lawyer is, on successful accomplishment or disposition of the subject matter of the contingency fee agreement, entitled only to those legal fees that would have been payable in the absence of the contingency fee agreement, and without regard to the contingency. 619(1) A contingency fee agreement may, at any time after its making until the expiry of six months from the last date on which a

solicitor has received on his own account the fee, or any part of it, be reviewed by the clerk at the instance of the client, and the procedure shall be that applicable on the taxation of solicitor and client bill of costs.

(2) At any time while the agreement is before the clerk, or within 15 days after he has given his decision on review, the clerk may, and on the request of the client, shall, refer the agreement to a judge of the Court of Queen's Bench, and the clerk shall thereupon transmit all the material before him to a judge, and shall secure an appointment for the review, and notify the solicitor and client of the appointed time.

(3) The judge reviewing the agreement has the powers which the clerk has on the taxation of a solicitor and client bill of costs.

(4) The clerk or the judge has the power on review to (

a) approve the agreement, or (

c) vary, modify or disallow the agreement; and if the agreement is disallowed, the amount payable shall be determined in accordance with Rule 618. [ 52 ] The Agreement in this case does not comply with r 616 of the former Rules of Court . It does not contain the statements required by r 616(2)(f). Rule 616(2)(

e) has also not been complied with because Clause 8 of the Agreement makes it impossible for the client to calculate the maximum fee payable should the circumstances indicated in that clause occur. In addition, there is no Affidavit of Execution attached to the Agreement as required by r 616(3), though there is no suggestion that the Agreement was not signed by TS. There is no indication that r 616(4) has been complied with. Further, the Statement of Account does not contain the statement required by r 616(7)(b). Rule 616(2) is very clear.

To be enforceable, a contingency agreement must contain certain particulars and statements. If a lawyer does not comply with Rule 616, then pursuant to Rule 618, he or she loses the ability to rely on that agreement and is entitled only to those legal fees that would have been payable in the absence of the contingency fee agreement. In my view, the flexible approach referred to in Rusk , that should be taken to problems arising from contingency fee arrangements does not extend to permit a disregard for the rules that apply to contingency agreements.

Rather, the flexible approach is more appropriate when considering more minor or technical departures from the rules as well as

interpretation issues arising from an otherwise valid contingency agreement. A flexible approach also has application when considering the reasonableness of a fee charged under a contingency fee agreement. [ 53 ] As the Agreement in this case does not comply with the former Rules of Court , the new r 10.7(2) applies to it even though the Agreement was executed prior to November of 2010 when the new Rules of Court came into effect. [ 54 ] Rules 10.7(2)(

e) and (

f) are very similar to the former rules 616(2)(

e) and (f). The Agreement in this case does not comply with rr 10.7(2)(

e) and (

f) and therefore, pursuant to r 10.7(2), it does not meet the requirements for the Agreement to be enforceable. [ 55 ] In the result, pursuant to r 10.8, Mr. Lee is entitled only to lawyer’s charges determined in accordance with r 10.2 as if no contingency fee agreement had been entered into. [ 56 ] Rule 10.2 provides: 10.2(1) Except to the extent that a retainer agreement otherwise provides, a lawyer is entitled to be paid a reasonable amount for the services the lawyer performs for a client considering (

a) the nature, importance and urgency of the matter, (

b) the client’s circumstances, (

c) the trust, estate or fund, if any, out of which the lawyer’s charges are to be paid, (

d) the manner in which the services are performed, (

e) the skill, work and responsibility involved, and (

f) any other factor that is appropriate to consider in the circumstances.

(2) A lawyer may be paid in advance or take security for future lawyer’s charges.

(3) Every lawyer’s account must (

a) contain a reasonable statement or description of the services performed, (

b) show the fee for the service, and (

c) set out separately the details of any disbursements paid or to be paid by the lawyer or any other charges of the lawyer in performing the lawyer’s services. [ 57 ] I move now to the last issue, namely, if the contingency fee agreement is not enforceable, what is the fair and reasonable fee to which Mr. Lee is entitled in all of the circumstances? [ 58 ] I will begin by reviewing the considerations outlined in rule 10.2 and I will then consider any additional factors set out in the Rusk case that may be applicable to the circumstances of this case. 1. The Nature, Importance and Urgency of the Matter

[ 59 ] Mr. Lee was hired to pursue compensation for the serious personal injuries suffered by M. There can be no doubt that the recovery of compensation was important for M and for his family. The settlement that was achieved will provide a significant benefit to M as he gets older. The settlement was structured to better benefit M.

The settlement achieved was the best that could be expected given the $1,000,000 limit on the Defendant’s insurance coverage. [ 60 ] Though the matter was not urgent in the sense that it had to be concluded within a certain period of time, there was an early indication that M would have benefited from some manner of payment to him as the matter was unfolding. Impacting M was the fact that he lived in a remote community where there were limited services available to him to assist with his adapting to the loss of his leg.

I note from the file that in September of 2005, TS requested $5,000 to move M and herself to Grande Prairie so that M could be enrolled in a rehabilitation program to learn how to use his prosthetic leg. Mr. Lee made inquiries about such a payment and wrote follow up letters on October 17 and 19, 2005. He received a response on November 8, 2005 requesting additional information about the rehabilitation program. The adjuster proposed settlement of the claim as an alternative to the payment and nothing further appears to have been done on this request for funds after that point. Mr.

Lee then sent the adjuster a Statement of Claim with his letter dated April 7, 2006. It does not appear that there were any further efforts made to obtain any type of payment pending the resolution of the file.

The request for funds highlights the fact that given M’s young age, there was a need to resolve the matter in a timely fashion so that M could begin to get some benefit from the settlement funds. [ 61 ] In addition, resolution in an overall sense within a reasonable period of time was important for M because the settlement funds would accrue interest over time, thereby providing an additional benefit for M. 2. The Circumstances of M and his Guardians [ 62 ] M is a minor and his parents/guardians are impecunious and do not have the ability to pay legal fees. English is not the first language of M’s guardians.

M and his guardians live in […], a remote community in northern Alberta where it is more difficult for them to access legal and other services. They could not have pursued this matter without a lawyer who was prepared to take it on a contingency fee basis. 3. The Trust, Estate or Fund, if any, Out of Which the Lawyer’s Charges are to be Paid [ 63 ] In this case, from the settlement funds, a lump sum will be provided to the Public Trustee to cover M’s needs to age 18 and the remaining funds will be used to fund a structured settlement which will generate monthly payments for M, commencing at age 18.

Given the obstacles that M faces for his future, it is likely that the funds remaining after legal fees and disbursements are paid, will represent a significant portion of M’s income on an ongoing basis, for the rest of his life. 4. The Manner in Which the Services Were Performed [ 64 ] The Public Trustee raises the issue of whether the manner in which the file was conducted is relevant to the reasonableness of the fee. Mr.

Lee’s response is that the result should be the focus, and not how the job was done. [ 65 ] It is my view that regardless of whether one is considering a contingency fee agreement or a more traditional retainer agreement for legal fees, the manner in which the services were performed is a proper consideration in determining the reasonableness of the fee. A person who enters into a fee arrangement with a lawyer is entitled to have the legal services performed to a standard required by the Law Society of Alberta, regardless of the nature of that fee arrangement.

Given the often vulnerable status of persons pursuing personal injury claims, it is even more critical that such standards are adhered to in those cases. [ 66 ] In this case, the Public Trustee submits that the court should look at the length of time it took to resolve the file and that the court should also consider the following:

a) a student prepared the Statement of Claim;

b) there was a delay of over 6 months in serving the Statement of Claim;

c) it took 1.5 years to get to examinations for discovery;

d) there was an offer in December of 2008 and it took 18 months to bring an application for approval of the offer before the court;

e) essential reports were not obtained when the offer was recommended by Mr. Lee to M’s guardian, despite the urging by the Public Trustee that these reports were required for a proper consideration of the offer that had been made. I note that in a letter dated July 29, 2009 from the Office of the Public Trustee to Mr. Lee, many of the important considerations previously raised by the Public Trustee had not been dealt with by Mr. Lee. Despite this, Mr. Lee chose not to get the additional information that was important for M and instead applied to the court for approval.

It was only after the application to approve the offer was rejected by Macklin, J, that Mr. Lee obtained the proper reports. Macklin, J indicated during the application that without any information on the additional claims of cost of care, loss of income, loss of housekeeping and special damages, it was impossible to say that the settlement arrived at of $450,000 was either reasonable or in the best interests of the injured Plaintiff, MS. Based on the representations of counsel during the application, Macklin, J also highlighted that there was no liability dispute;

f) if the file was settled when it should have been, M would have received considerable interest on his settlement by now. M has been deprived of his settlement and interest on the settlement funds due to delays on the file;

g) Mr. Lee’s approach in his submissions to the court, in his own sworn evidence and through the Affidavit of George Lucki, was to effectively undermine M’s claim in an attempt to justify the previous settlement that Mr. Lee initially recommended. The Public Trustee submits that because the claim is not finalized until approved by the Court, this was not in M’s best interests. [ 67 ] In response to these concerns, Mr. Lee submits the following:

a) there was pre-judgment interest calculated into the general damages claim;

b) the file was settled in December of 2012, just over 7 years after the Statement of Claim was filed. Mr. Lee says that these things take time and that you can’t rush to settlement because injuries crystallize over time. Mr. Power, however, acknowledged that the file could have been resolved earlier;

c) the court should not take into account the delay and the failure to get expert reports;

d) Mr. Lee held off incurring the costs of expert reports because he was worried that M’s guardian would not come forward to complete the matter;

e) Mr. Lee was worried that the Defendant was going to argue that the real cause of M’s damages was his family’s history of alcoholism and abuse, some of which was documented in the Child Intervention Children and Youth Services First Nations on Reserve reports related to M; [ 68 ] Mr. Lee also relies on the Affidavit of Mr. Lucki to justify some of the steps taken on the file. I have great difficulty with this evidence. Mr. Lucki is a psychologist who is giving opinion evidence on the appropriateness of steps taken by a lawyer in the management of a lawsuit.

He is not a lawyer and does not appear to be qualified to give such opinion evidence. The nature of his qualifications was not provided with his Affidavit. I put no weight on his Affidavit or the report attached to it. [ 69 ] I note that during the course of the litigation, the Public Trustee had discussions with Mr. Lee and provided useful information and suggestions relative to steps to be taken in the proceedings, and the implications of structured settlements relative to certain government benefits and tax considerations. The Public Trustee also raised with Mr.

Lee on more than one occasion, its concerns about the delays in moving the matter forward. There is every indication that the Public Trustee was attempting to work cooperatively with Mr. Lee to move the matter forward to a successful and timely conclusion for M. 5. The Skill, Work and Responsibility Involved [ 70 ] Mr. Lee indicated that he has over 20 years of experience and has extensive experience working with aboriginal clients and injured children.

It appears that he would have had about 10 years of experience in this regard, at the time that this file was opened in 2004. [ 71 ] The Public Trustee submits that Mr. Lee was a Justice of the Peace for 10 years and that he got very little accomplished over 10 years on the file, with long periods of inactivity. The Public Trustee says that there is a higher duty to move things along when working with disadvantaged clients who are not familiar with the system and have language difficulties. [ 72 ] Mr.

Lee says that in his practice, he works almost exclusively on a contingency basis. [ 73 ] In considering the work involved in completing this matter for M, the time spent is a very important factor. Unfortunately, it is impossible in this case, for the court to determine how much time was spent by Mr. Lee in carrying out the services that he performed for M. [ 74 ] Mr. Lee does not keep time records. In his Affidavit sworn February 28, 2014, paragraph 37, he states “I do not keep time and cannot advise the Court how much time was spent on the file.” Mr.

Lee was questioned on his Affidavit and indicated that he typically did not keep notes of his phone conversations with clients and he does not keep a diary of appointments. There is also no evidence of time records being kept by anyone else in Mr. Lee’s office who worked on this file. [ 75 ] Mr. Power spent 30 hours on the file to get it settled. He says that all reports were in place when he came on to the file. The Public Trustee takes no issue with the work done by Mr. Power. [ 76 ] Mr.

Lee says that more time was required by him because of the unreliability of M’s guardians, their failure to return calls and their phone being out of service. [ 77 ] The Public Trustee submits that the onus is on Mr.

Lee to demonstrate his time and efforts on what he did, and that the time spent cannot be recreated at this point. [ 78 ] The Public Trustee submits that the file should have been settled years earlier than the 10 years that it took because the matter was not complicated. [ 79 ] The Public Trustee provides the basic timeline of the case as follows: October 5, 2003 – date of loss September/October 2004 – Mr. Lee’s file opened September 21, 2005 – Statement of Claim filed

April 2006 – Statement of Claim served Affidavit of Records filed January 15, 2007 November 2007 – Examinations for Discovery Undertakings Answered July 21, 2008, September 19, 2008, and October 2, 2008 December 2008 – first offer from Defendant ($400,000) February 2009 – January 30, 2009, Defendant offers $450,000 and he puts it in writing on February 4, 2009 - first settlement reachedafter counter-offers ($450,000) September 2010 – Macklin, J dismisses Mr. Lee’s application to confirm first settlement – at some point after the application, Mr. Leeretains counsel to bring the file to a conclusion Mr.

Lee files a Notice to Admit Facts September 24, 2010 2011/2012 – Expert Reports obtained by Plaintiff and Defendant October 30, 2012 – Mediation held March 26, 2013 – Letter from Power advising that the present settlement has been achieved subject to confirmation of insurance limits [80] The Public Trustee says that a review of Mr. Lee’s file confirms that he did very little to advance the file and that there wasvery little going on “behind the scenes” and in fact it was Mr. Lee’s office staff and articling student who were responsible for much ofthe work that was done. Mr.

Lee admitted, when he was questioned, that his assistant did a large portion of contacting the client andspeaking with the client. [81] Mr. Lee never travelled to […], Alberta to see M’s guardians, nor did he ever meet with M. [82] The Public Trustee submits that absent time records, the Court can look at several factors including Mr. Power’s time, the Billof Costs, the fact that time was spent on the Statement of Claim, an Affidavit of Records, discoveries, undertakings, obtaining expertreports, negotiations, and a court application. [83] I again refer to the Rusk case on the issue of recording time.

Though the references in that case were made in the context ofcontingency agreements, the importance of recording time in order to assess the value of the service provided in any lawyer/client feearrangement cannot be overemphasized. It is generally only those files where fees are being completed on a tariff or where a fixed feearrangement has been made between lawyer and client, that the time spent by the lawyer is not a significant consideration. [84] In this case, where Mr. Lee was proceeding on the basis that he had a valid contingency fee agreement, the comments made inthe Rusk decision are applicable here.

In my view, they also have a more general application for the reasons indicated above. [85] In the Rusk decision, the following references were made on this issue: 1) At para 24, in referring to the case of Cook v Mission Memorial Hospital [1996] BCJ No. 1297 [Cook], where the lawyer had“less than preferable time keeping habits,” Oliver, J made the following comments on the issue of time recording at para 29: “It has been suggested, and there is authority to support the proposition that in a case involving a contingency fee, time records need notbe kept by the solicitors.

Nevertheless, having regard to the way in which the law is developing and the way that Yule v.

Saskatoon hasbeen applied in recent contingency fee review cases, it is my view that any lawyer who hereafter fails to keep records when undertakingcontingency fee litigation in circumstances where there is a possibility of his bill being taxed is foolhardy - for lack of detailed timerecords deprives the Court of important information necessary to protect the legitimate interests of the provider of legal services.” 2) At para 29: “Similar to the opinions expressed by Oliver J. in Cook, supra, at para[s]. 43-4 Parrett J. in [Adams (Guardian ad litem of) v Emmott],[1997] BCJ No 2473 (BCSC), also argued strongly in favour of recording time spent on a case: Recorded time is one aspect of the information which the court is entitled to consider in assessing the reasonableness of a proposed fee.That information is not to be used in a contingency fee case to simply consider an appropriate hourly rate for that would ignore both thevalue of counsel's experience and expertise and the time spent in staying on top of the field in which they practice.

It would equallyignore the risk factor associated with these cases. Nevertheless it is a factor which the court is entitled to consider and one which can be obtained with relatively little effort. I share theviews expressed in Cook.” 3) At para 30: “In Renaerts (Guardian ad litem of) v. Korn, (BC SC), [1998] B.C.J.

No. 3223 (S.C.), [1999] 9 W.W.R. 499,Williamson J. made the following point at para. 47 with respect to tracking hours: With the greatest of respect to those who may think otherwise, I conclude that when counsel asks the court to affix its imprimatur to apremium to be awarded for a job well done, it is the time actually expended that of necessity must help to define the premium. Counselwho seek such approval without an accurate record of time expended, do so at increased risk. I would not, however, be taken to say that

time expended is determinative. It is one factor to be considered among many.” [ 86 ] By failing to keep time records, Mr. Lee has removed an important factor from the court’s consideration of what a fair and reasonable fee should be in this case. 6. Degree of Complexity and Difficulty of Issues of Liability and Quantum of Damages [ 87 ] Mr. Lee admits that liability was not really in issue and that the issue of quantification of general damages was straightforward.

However, he submits that the cost of future care was a contentious issue and that the future loss of income claim was very contentious. [ 88 ] In addition, he submits that he had a fear that his clients would not come forward with the evidence he needed to establish the claims. In his Questioning, Mr. Lee said that one of the main issues in this case, if it went to trial, would have been what is the appropriate standard to judge M’s income or future income because his injuries occurred at such a young age.

The Defendant was taking the position that they should use the northern Alberta reserve as a comparison and Lee argued that such a comparison would have been unfair. [ 89 ] Mr. Lee says that there were complex issues related to the causation of damages. He says that the Defendant could have argued that family neglect was the cause of a majority of the child’s special damages and not merely the amputation of the leg. During his Questioning on Affidavit, Mr.

Lee indicated that the causation issue dealt with whether or not the injury of losing the leg was the reason for M’s inability to earn future income and his cost of future care or whether it was due to his pre-existing condition of family abuse and family dysfunction. He says that this issue would have increased the need for expert reports but that in the end, the Defendant did not obtain an independent psychological assessment and only relied on an Occupational Therapist’s report to argue that the child’s special damages were caused by other factors. He says that this was a real issue and a potential risk.

He says that third party documents (Children and Youth Services, First Nations) suggested severe neglect by M’s guardians. [ 90 ] The Public Trustee says that this case does not have the type of complexity that is found in medical malpractice cases. The Public Trustee insists that this matter was not complicated. 7. Was liability in Issue? [ 91 ] As indicated above, Mr. Power admitted that liability was not in issue. Mr. Lee submits that M’s family members minimized the Defendant grandfather’s neglect during discoveries. He was also concerned that the child’s guardian would not follow up and complete the case.

He says that this created a risk to M and to Mr. Lee. He says that the Defendant was represented by senior counsel. [ 92 ] During his Questioning, Mr. Lee was asked if he had obtained enough admissions from the Defendant at examinations for discovery to confirm that liability would not be an issue and he said that he didn’t think so. [ 93 ] The Public Trustee submits that a child can’t be liable for negligence. The Public Trustee also points out that Macklin, J had no problem in suggesting that liability could never be shared with M.

The Public Trustee says that by any reasonable standard, liability was never in question in this case, and that Mr. Lee failed to recognize that the Defendant’s arguments in respect of liability for the accident were, essentially, hopeless. The Public Trustee maintains that Mr.

Lee made no attempt to build his case on quantum through the proper experts or even through written research, or a written quantum brief. [ 94 ] I note from my review of the Transcript from the proceedings before Macklin J, that the lawyer for the Defendant DM indicated that practically speaking, liability was not an issue. [ 95 ] I also note that Mr. Lee’s Brief for this application indicated that liability was admitted after discoveries. 8.

At what point in the action was the file settled? [ 96 ] Liability was admitted after discoveries and the file was settled after mediation without the need for a trial. [ 97 ] A Certificate of Readiness was not filed. 9. Liability for Disbursements [ 98 ] Clause 5 of the Agreement provides: 5.

At the end of the case, the Clients agrees (sic) to pay all disbursements and expenses actually incurred by the Solicitor as necessary or expedient (in the sole discretion of the lawyer) in case whether recovery or settlement is had or not. [ 99 ] Setting aside the fact that the Agreement is not enforceable, the reality is that because M is a child and his parents/guardians are impecunious, it is unlikely that Mr. Lee would have been able to recover his disbursements if he was unsuccessful or if his clients failed to proceed with the litigation. Mr.

Lee points out that in addition to the disbursements of $38,884.35 that he incurred on the file, he also made advances to the clients in the total sum of $1,866.45 and is charging no interest on these advances.

10. What was the Degree of Risk assumed by Counsel? [ 100 ] Mr. Lee says that he assumed considerable risk as he exposed himself not only to loss of the disbursements and advances that he made, but also the loss of his time spent on the case. He says that this risk was exacerbated by the unreliable nature of M’s guardians. [ 101 ] Mr. Power confirmed that the risk on liability was not that significant and that this was the view more so after the appearance before Macklin J. Mr.

Power also suggested that the cost of future care was fairly straightforward but that the loss of income earning capacity carried more risk. [ 102 ] The Public Trustee submits that Macklin J’s dismissal showed that this was a serious case. The Public Trustee also says that Mr. Lee’s worry about his clients not coming forward is not borne out by the facts. They were coming to examinations for discovery and providing undertakings. Affidavits were being signed. The Public Trustee says that Mr. Lee’s clients were participating in the process. Conclusion [ 103 ] In this case, Mr.

Lee’s willingness to take this matter on a contingency fee basis provided a significant benefit for M and his family. I am taking that into account in assessing a reasonable fee. [ 104 ] I am also considering the conduct of the file generally, the delays in moving the matter forward, and the attempt, in the absence of essential expert reports, to conclude the matter based on a settlement that was significantly less than that to which M was entitled.

I am also considering that interest could have been earned for M if the matter was concluded in a timely fashion and if the settlement funds had been paid within a reasonable time after settlement had been achieved in December of 2012. [ 105 ] Though I have no evidence on the time spent by Mr. Lee on this matter, I do have an indication of the steps taken on the file and the evidence of Mr. Power having spent 30 hours to conclude the file, with the expert reports having been obtained by Mr. Lee for that purpose.

I also have the Revised Bill of Costs, which details the $12,350.00 fees that would be payable for the steps taken in the action according to

Schedule C: Tariff of Recoverable Fees in the Rules of Court . [ 106 ] I also note that in clause 8 of the Agreement, Mr. Lee specifies an hourly rate of $250. [ 107 ] The Public Trustee suggests that $50,000 would be a generous fee when considering the work that was done on the file. Using Mr. Lee’s hourly rate at $250, this would reflect 200 hours of time spent on the file. Having reviewed the file and the steps that were taken, it is difficult to imagine that 200 hours was spent on the file. Even half of that amount would be a generous estimate.

However, time spent is not the only thing that I must consider. [ 108 ] After considering all of the factors in rule 10.2 and the additional factors set out in the Rusk decision, I am of the view that a reasonable fee for Mr. Lee’s services is $65,000. Disbursements, GST and repayment for the advance of $1,866.45 would all be in addition to that fee amount. [ 109 ] Accordingly, the settlement amount of $950,000 plus taxable costs and disbursements is confirmed by the Court. Mr. Lee’s fee to be paid from the settlement amount is $65,000 plus disbursements, and GST.

He will also be repaid the advance of $1,866.45 from the settlement amount. [ 110 ] The terms of the agreement between Mr. Power and Mr. Lee were not disclosed in this application. To be clear, the Court is making no assessment as to how the $65,000.00 is to be apportioned between Mr. Power and Mr. Lee and leaves that issue to the two of them. [ 111 ] Absent an agreement between the parties on the issue of costs of this application, they may be spoken to within 30 days. Heard on the 6 th day of June, 2014. Dated at the City of Edmonton, Alberta this 14 th day of November, 2014. D.A. Yungwirth J.C.Q.B.A.

Appearances: James R. Weir Office of the Public Trustee for the Public Trustee Kendall Power Main Street Law Office Agent for Robert P. Lee for the Plaintiff Robert P. Lee Barrister & Solicitor for the Plaintiff Not in attendance Galan Lund Brownlee LLP for the Defendants Not in attendance