Twinn v Sawridge Band, 2017 ABQB 366

Court of Queen’s Bench of Alberta Citation: Twinn v Sawridge Band, 2017 ABQB 366 Date: 20170607 Docket: 1103 09493 Registry: Edmonton Between: Catherine Twinn Applicant - and - Sawridge Band Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ I. Introduction [ 1 ] This matter comes before me by way of a Reference from Review Officer Dennis Pawlowski under Rule 10.18 of the Alberta Rules of Court . Catherine Twinn [Ms. Twinn] is a barrister and solicitor in Alberta.

On June 10, 2011, she filed an application before a Master in Chambers to permit a review of 14 accounts she had issued to the Sawridge Band, now Sawridge First Nation [Sawridge]. [ 2 ] These accounts were part of a retainer dating back to the mid 1980’s, involving constitutional and Charter challenges to Bill C-31, which proposed amendments to membership under the Indian Act , RSC 1985, c I-5 [ Indian Act ]. Between 1999 and 2009, Ms. Twinn billed Sawridge in excess of $5 million on this file. The disputed accounts were issued between October 31, 2005 and October 19, 2009, and total $213,959.29.

Sawridge argues the subject of these accounts did not form part of Ms. Twinn’s retainer, are barred under the Limitations Act , RSA 2000 CL-12 [ Limitations Act ], and are excessive in any event. [ 3 ] On June 10, 2011, Ms. Twinn filed an Appointment for Review of the disputed accounts. [ 4 ] On July 6, 2011, an order was granted in Master’s Chambers permitting review of the accounts.

[ 5 ] The review was originally scheduled for July 13 and 14, 2011. The parties appeared before Review Officer J.A.B. Christensen. Mr. Christensen suggested that a Reference to the Court might be required. Ultimately, the review was adjourned pending the appeal by Sawridge of the Master’s Order. [ 6 ] The appeal was heard on November 15, 2011, and dismissed by Browne, J with reasons reported at Twinn v Sawridge Band , 2012 ABQB 44 , 531 AR 158 . She held that the Alberta Rules of Court , r 10.10(2) (which has since been amended) did not apply to lawyer-initiated reviews. Ms.

Twinn’s application to permit review was “perhaps wise, but not necessary”: at para 62. Browne J held the quantum of the accounts should be decided first, and liability decided by Reference to a Justice of the Court of Queen’s Bench. [ 7 ] In September 2015, the parties appeared before Review Officer Dennis Pawlowski. The review did not proceed in order to allow for determination of the following issues outlined in his Reference: 1.

Did Sawridge Band expressly, impliedly, orally or [in] writing, enter into any agreement with Catherine Twinn to provide the services that are claimed to have been provided by her and, if so, what was the nature and scope of the agreement or agreements? 2. Are any of Catherine Twinn’s claims for legal costs barred by the Limitations Act (Alberta)? 3. Is Sawridge Band estopped, in any way, from contesting its liability with respect to any of the statements of account in question? [ 8 ] The evidence in the application before me consists of the following: 1. Affidavit of Catherine Twinn, sworn June 8, 2011; 2.

Transcript of Questioning on the Affidavit of Catherine Twinn on July 11, 2011; 3. Exhibits and Answers to Undertakings arising from Questioning on the Affidavit of Catherine Twinn; 4. Affidavit of Roland Twinn, Chief of Sawridge, sworn October 4, 2011; 5. Transcript of Questioning on Affidavit of Roland Twinn on November 2, 2011; and 6. Exhibits and Answers to Undertakings arising from Questioning on the Affidavit of Roland Twinn. II. Background Facts [ 9 ] Ms.

Twinn was admitted to the Law Society of Alberta in 1980, practiced law in various locations in Alberta, and in 1983, opened an office in Edmonton [Lancaster House or Data Room]. [ 10 ] Ms. Twinn entered into a retainer agreement dated April 13, 1984 with the Lesser SI Slave Lake Indian Regional Council and other parts of Treaty 8, signed by Chief Walter Twinn, in his capacity as President [Retainer Agreement]. Ms. Twinn says this Retainer Agreement governs her retainer with Sawridge. It is agreed that Sawridge is part of Treaty 8. [ 11 ] Ms. Twinn married Chief Walter Twinn in November 1984.

Walter Twinn died on October 30, 1997. His son, Roland Twinn, was elected as a member of the Sawridge Band Council in September 1997, and in February 2003, became Chief of the Sawridge Band. [ 12 ] The parties agree that the 1984 Retainer Agreement pertained to Bill C-47, which proposed various amendments to the Indian Act . This Bill died following the federal election in 1984. [ 13 ] In 1985, Bill C-31 was tabled. Ms. Twinn acted primarily as “instructing solicitor” in a lawsuit commenced in 1986 in the Federal Court by numerous Indian Bands.

The lawsuit involved lengthy Charter and constitutional challenges to Bill C-31. [ 14 ] The first 79-day trial in Federal Court began in September 1993. Six Bands were named as plaintiffs, including Sawridge. The lawsuit was dismissed, but the plaintiff Bands successfully appealed to the Federal Court of Appeal in 1997. A new trial was ordered based on reasonable apprehension of bias on the part of the trial judge. [ 15 ] The second trial was originally scheduled to commence in January 2005 but did not commence until January 2007.

By this point, only two plaintiff Bands remained: Sawridge and Tsuu T’ina First Nation. While the date is not clear on the evidence, Sawridge agreed at some point to cover legal fees on behalf of Tsuu T’ina First Nation. [ 16 ] Throughout these proceedings, the Twinn Law firm was one of the Counsel of Record on behalf of the plaintiffs. Lead counsel at that time was Philip Healey of Aird & Berlis LLP in Toronto. [ 17 ] The claim was extensively case managed.

In the course of the second trial, the plaintiffs made a number of controversial and unsuccessful applications, resulting in a cost award against the plaintiff Bands of approximately $1.8 million for their misconduct. The reasons for the costs award are reported at Sawridge First Nation v Canada , 2008 FC 267 , 320 FTR 166 , aff’d 2009 FCA 123 , leave to appeal to SCC refused, [2009] SCCA No 248. [ 18 ] In early 2008, the plaintiff Bands advised the Court they were closing their case, would not be calling any further evidence and, based on the pre-trial rulings, would be appealing to the Federal Court of Appeal.

The action was dismissed with reasons reported at Sawridge Band v Canada , 2008 FC 322 , 319 FTR 217 . [ 19 ] The plaintiffs’ appeal to the Federal Court of Appeal was dismissed on April 21, 2009: Sawridge First Nation v Canada ,

2009 FCA 123 , 391 NR 375 . Leave to appeal to the Supreme Court of Canada was denied on December 10, 2009: Sawridge Band v R , [2009] SCCA No 248 , 403 NR 393 . [ 20 ] With that background, I will now turn to an analysis of the issues outlined in the Reference. 1. What was the nature and terms of the retainer agreement between the parties?

a) Does the April 13, 1984 Retainer Agreement govern the parties? [ 21 ] Ms. Twinn argues that the agreement signed April 13, 1984 governs the retainer between the parties and applies to the disputed accounts. [ 22 ] The agreement pertains to “Proposed Membership Amendments To The Indian Act .” Ms.

Twinn was authorized to “conduct all matters and negotiations required under this retainer and to take any legal steps which may be necessary or desirable in Counsel’s sole opinion to protect the Client’s interests....” and to retain other counsel as she deemed essential. [ 23 ] As indicated earlier, the agreement was signed by Chief Walter Twinn in his capacity as President of the Lesser SI Slave Lake Indian Regional Council and other parts of Treaty 8.

There is no evidence as to the legal status of the Lesser SI Slave Lake Indian Regional Council or which entities formed Treaty 8 in 1984, although it is agreed that Sawridge was, and continues to be, part of Treaty 8. Nor is there other evidence of whether the six Bands that originally filed the lawsuit in 1986 formed part of Treaty 8. [ 24 ] It is agreed that the 1984 Retainer Agreement was executed when the proposed legislation was Bill C-47. However, the lawsuits challenged the subsequently tabled Bill C-31.

I heard no evidence as to the degree of similarity between the two bills. [ 25 ] There is no evidence that the parties took formal steps to end the Retainer Agreement, either before or after Chief Walter Twinn’s passing. No further written retainer agreement was ever executed nor is there evidence before me of any written amendments to this Retainer Agreement. [ 26 ] The legal fees outlined in the 1984 Retainer Agreement ($250 per day) increased over time, to $270 per hour, and Ms.

Twinn billed not only for the services she provided personally, but for various staff of Twinn Law firm. [ 27 ] In a broad sense, proposed amendments to membership under the Indian Act were the subject of both the Retainer Agreement and the ensuing litigation, but over time, the fundamental terms of the 1984 Retainer Agreement changed. The legal entity that signed the Retainer Agreement (i.e. the Lesser SI Slave Lake Indian Regional Council) is a different legal entity than Sawridge. The basis of billing not only increased, but changed from a daily flat rate to an hourly rate.

Further, in reading the terms of the agreement, it cannot be said that the full scope of this protracted litigation was contemplated. The agreement speaks of negotiation and specifically allows for possible withdrawal of counsel if an application to the court is required. [ 28 ] Consequently, I conclude that the Retainer Agreement has no application and does not inform the Review Officer’s assessment of the accounts in question. [ 29 ] Notwithstanding my conclusion that the 1984 Retainer Agreement does not apply to the parties, there is no question that Ms. Twinn had a form of retainer agreement with Sawridge.

b) What was the scope of the retainer and did it cover the subject of the disputed accounts? [ 30 ] The determination of the type of retainer governing the parties and the terms of that agreement is largely a question of fact.

In the case of an oral retainer, the onus is on the solicitor to prove its terms and the client’s version is more likely to be accepted if the terms of the retainer have not been reduced to writing: Davis & Company v Jiwan , 2006 BCSC 658 at para 73 , 2006 CarswellBC 1094 ; Peterson, Ross v Kirwood , [1984] AJ No 863 at para 71, 52 AR 284 . [ 31 ] Here, the analysis is hampered by limited and rather vague evidence on the part of Ms. Twinn as well as the absence of evidence from Sawridge on the terms of the retainer. The Questioning of Roland Twinn was focused on Ms.

Twinn’s handling of the case and other issues not before me in this Reference. [ 32 ] Ms. Twinn’s evidence is that her primary role was to act as “instructing solicitor” for the other firms engaged in representing the plaintiff Bands. She was the lawyer primarily responsible for assembling the legal team, locating and documenting evidence as well as marshalling witnesses, including expert witnesses. She deposed she was heavily involved in managing legal and other research. [ 33 ] The scope of Ms. Twinn’s retainer was also addressed in her correspondence of October 2005 to the Chiefs of the two plaintiff Bands.

She advised that Twinn Law would continue as Solicitor of Record and would be involved in all aspects of the case, including strategy, research and preparation for interlocutory motions and trial. Ms. Twinn would also lead evidence at trial. [1] [ 34 ] Ms. Twinn was also described as “the conduit” through which the various legal counsel on the file were provided with the clients’ instructions. [ 35 ] The parties agree that the determination of whether or not the subject matter of the disputed accounts fell within the terms of Ms.

Twinn’s retainer is an issue properly before me. [ 36 ] The accounts in question involve fees and expenses charged for the following:

i. Attendance at a UN Expert Conference in Arizona in October 2005; ii. Set up of Lancaster House (also referred to as Data Room start-up) between June and August 2003; iii. Data Room shutdown and creation of the “DML index” between February 2003 and February 2004. i. UN Expert Conference [ 37 ] In October 2005, Ms. Twinn travelled to Arizona to meet with Willie Littlechild and attend a UN Expert Conference. She billed Sawridge for 34 hours of her time plus expenses totalling $9,870.15. Ms. Twinn felt attendance at this Conference was part of her duties in connection with Bill C-31.

She admits she did not obtain approval from Sawridge to attend the Conference at its expense. [ 38 ] After she issued the account dated October 31, 2005, Sawridge refused to pay, stating this trip had not been approved. [ 39 ] The limited evidence before me does not establish that attendance at this seminar was part of her retainer and, as will be explained later in these reasons, is now barred under the Limitations Act , in any event. ii. Lancaster House/Data Room set-up [ 40 ] In 2003, to facilitate the litigation, Ms.

Twinn set up a second office in Edmonton, and staff from her Lac La Biche office began working in Edmonton. [ 41 ] Ms. Twinn recorded time spent between February 2003 and February 2004 ($54,735) and expenses incurred between June and August 2003 ($27,204.26) in relation to the Data Room set-up. She did not prepare an account until May 31, 2009, after Sawridge had terminated her retainer. She first presented this account to Sawridge at a “without prejudice” meeting regarding her outstanding accounts, which occurred sometime in October 2009. [ 42 ] Following this meeting, Ms.

Twinn reduced her account for these services by 30%, from $81,939.26 to $60,943.26. She made hand written changes on the May 31, 2009 account and sent it along with a number of other accounts to Sawridge, on November 20, 2009. [ 43 ] Ms. Twinn suggests the Data Room was established to support the second trial. As Sawridge had agreed to pay for an office for the first trial, this formed part of her understanding that the office set-up for the second trial would also be covered. [ 44 ] Ms.

Twinn’s evidence is that this office provided a workspace in Edmonton for lead counsel (based in Toronto), a space to meet and interview witnesses, and a space to store trial production. In July 2005, Edward H. Molstad, QC of Parlee McLaws became Counsel of Record, replacing Phillip Healey. [ 45 ] When Questioned on why these expenses were not billed until 2009, Ms. Twinn answered: Well, there were discussions with Mr. McKinney and - - which also included discussions with my legal counsel; there were discussions with myself, my accountant with them, with Mr.

McKinney and this was a matter that was not resolved. [2] [ 46 ] When asked again why these expenses were not included in her June 2003 account, she answered: Well, I wanted to have the conversation with the client about the cost of this office that had to be set up, and Samson in their litigation had to set up an office to support the litigation. They retained Terry Munroe and they paid for all the costs associated with that. In the first trial Sawridge also set up an office to support the trial process. So I was expecting that we would reach some resolution that would be reasonable. [3] [ 47 ] Ms.

Twinn admits that Sawridge never expressly told her that the time and expenses she incurred in the office set up would be paid, but suggests that based on discussions with Michael McKinney, General Counsel to Sawridge, and Bertha L’Hirondelle, then Chief of Sawridge, she “was left with the clear understanding” these expenses would be covered, because Sawridge recognized the need for the office in Edmonton, and she did what was needed to fulfill her professional obligations. [ 48 ] In his letter of April 22, 2010, Mr.

McKinney addressed these charges: DATA ROOM We note that $60,943.26 was added to the May 2009 invoice in relation to Data Room start up. We believe that these items and amounts had been the subject of earlier discussions.

We have previously advised you of our concerns with respect to these amounts, including the fact that some of these costs are office costs which would normally be incurred by legal counsel on their own account, the fact that the Band may have reduced or avoided these amounts had it been consulted and involved in the set up of the Data Room at a later time, the fact that some of the time included appears to be for the move of your office from the Band Administration building to your residence, the set up of an office at Enoch and the set up of an office at Hobbema and the fact that some of this work was charged at legal rates when it could have been done by others at non-legal rates.

These issues have not been addressed. [ 49 ] Was this expense an implied term of the retainer?

[ 50 ] In 2003, lead counsel was based in Toronto. It is logical that Ms. Twinn, as the coordinator and conduit of this litigation, would need space in Edmonton to support the trial.

The issue is not whether an Edmonton office was logically required, but whether the resulting expense in establishing it was part of the retainer such that the client is responsible for it. [ 51 ] The record before me does not suggest the monthly costs for leasing the space were charged to Sawridge. [ 52 ] While it is entirely possible for a client to negotiate such an expense as part of his or her retainer, in this instance, nothing was reduced to writing and the evidence supporting Ms. Twinn’s “clear understanding” (that the expenses would be covered) is scant.

In the absence of an express agreement, would the client expect to absorb this expense as an incidental part of its retainer, or would it expect that this expense is part and parcel of a lawyer doing business? [ 53 ] It is certainly conceivable that a lawyer may spend significant time and money setting up, or adapting their practice in order to serve their client. Absent an express agreement, it does not follow that time and money incurred with administrative functions should be the responsibility of the client.

For instance, it cannot be said that a lawyer’s time spent in hiring a legal assistant or buying a photocopier, or researching and learning new software programs, is an incidental part of a lawyer’s retainer, even if those steps are driven by the retainer. [ 54 ] Further, Ms. Twinn’s actions disaffirmed her assertion that she understood these expenses would be covered.

From inception, she billed her time and disbursements regarding the Data Room to a different file, and never actually sent the account until her retainer ended, some six years later. [ 55 ] While the concept of an Edmonton office or “war room” seems entirely logical given the scope of this litigation, I am unable to imply a term of this retainer that Sawridge was responsible not only for Ms. Twinn’s disbursements in setting up the office, but significant professional time too. Accordingly, these accounts will not be before the Review Officer. iii.

Office shutdown and DML (June 2008 – September 2008) [ 56 ] Sometime in early 2008, after the second trial was dismissed, Ms. Twinn wrote to Mr. McKinney and requested a meeting to discuss facilitating the intervention and winding down of the Data Room. Ms. Twinn requested that her counsel, Mr. Kaliel, Q.C.be present at the meeting. [ 57 ] Ms. Twinn suggested that the file contents (685 boxes) be put in a storage container and placed on the Sawridge First Nation.

Sawridge did not approve this request. [ 58 ] The evidence suggests that all producible documents in the litigation had been scanned through “Summation” software and stored on the Parlee McLaws server. [ 59 ] Nonetheless, Ms. Twinn felt it was necessary to organize the 685 boxes of material in order to retrieve hard copies in the event the appeal was successful. She instructed her staff to create a “detailed DML index” or database to accomplish this objective, and billed Sawridge $86,028.07. Although there were negligible disbursements associated with this, the account was almost entirely comprised of Ms.

Twinn’s staff’s time, billed at between $45 and $60 per hour. [ 60 ] Ms. Twinn believed preparing the file for storage was part of her retainer, but admits she did not receive instructions from Sawridge to create this data base. She deposed she was trying to have discussions with Mr. McKinney but it was a busy time. She did not advise Sawridge of the cost, as she did not know what the cost would be. [ 61 ] In his April 22, 2010 letter, Mr.

McKinney questions both the rate and total time charged, but does not dispute liability for these office shutdown expenses or suggest that the expenses were beyond the scope of the retainer. I conclude that these expenses regarding the office shutdown are properly before the Review Officer. 2. Are the claims barred by the Limitations Act? [ 62 ] I have determined that the accounts relating to the attendance at the UN Expert Conference and the Data Room start-up did not form part of Ms. Twinn’s retainer.

Nonetheless, if I am incorrect in this conclusion, I will consider whether any of the accounts are barred by the Limitations Act. In order to make this determination, it is necessary to first determine the nature of the retainer agreement between the parties. [ 63 ] In this case, I am satisfied that the retainer between Ms.

Twinn and Sawridge was a continual one, as defined by Rooke ACJ in Samson Cree Nation v O’Reilly & Associés , 2013 ABQB 350 at paras 29 , 67, 564 AR 169, aff’d 2014 ABCA 268 , that is, where legal counsel start to act and continue to act until the final appeal, or otherwise instructed. [ 64 ] Clearly in this retainer, Ms. Twinn issued periodic accounts, usually on a monthly basis. Under a continual retainer, counsel and the client may agree to interim or provisional accounts pending the final account, or a series of final accounts. [ 65 ] Whether Ms.

Twinn’s periodic accounts were interim or final is critical, as this determination informs when the limitation period starts to run. [ 66 ] Ms. Twinn argues that the periodic accounts issued were interim and as a result, the limitation period did not start to run until her final account was rendered at the end of the retainer (November 20, 2009).

[ 67 ] Ms. Twinn’s Appointment for Review of the disputed accounts is a claim for a remedial order and subject to the two year limitation period in the Limitations Act : Samson Cree Nation v O’Reilly & Associés , 2014 ABCA 268 at para 169 , 580 AR 181 . The Appointment for Review stops the two year limitation period from running. [ 68 ] Ms. Twinn filed her Application for Review of the accounts on June 10, 2011, within two years of the date of her last account.

Therefore, she argues, the Limitations Act does not preclude review of any of her accounts. [ 69 ] Sawridge argues the periodic accounts issued were each final accounts, and therefore, many of the accounts were issued more than two years prior to the Application for Review filed June 10, 2011, and are now barred under the Limitations Act. [ 70 ] In Samson Cree , Rooke ACJ provides a helpful distinction between periodic interim and periodic final accounts (at paras 45- 46): Periodic accounts may be interim or final.

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

Final accounts are ones that conclude all truly interim or provisional accounts before them (in which case, as noted, all the interim accounts are part of that taxation), or are final and taxable in themselves, with no regard to other accounts. [ 71 ] Ms. Twinn issued in excess of 137 accounts in the course of this retainer. Were these accounts periodic interim or periodic final? [ 72 ] In Samson Cree , Rooke AJC undertook a comprehensive review of the authorities in determining whether a periodic account is interim or final.

Those authorities were succinctly summarized in the later decision of Brown, J (as he then was) in Lewis Estates Communities Inc v Brownlee LLP , 2013 ABQB 508 at para 42 , 2013 CarswellAlta 1704 [ Lewis Estates ] : Taken together, these authorities have focussed on whether the lawyer and the client considered each of the accounts in question to be the lawyer’s final account for the work recorded.

And, in determining with regard to the dealings of the parties and the circumstances whether the parties intended that each account would be final, they establish that a periodic account is likely to be considered final [where] the parties understand that the lawyer’s charges will be based upon hours spent and the lawyers’ billable rates, and that the charges will not be adjusted, whether upwards or downwards, upon issuance of a final bill at the conclusion of the matter. [ 73 ] It is not disputed that for the most part, Ms.

Twinn issued accounts on a monthly basis and, with the exception of the disputed accounts, were paid by Sawridge. [ 74 ] Ms. Twinn points to Roland Twinn’s evidence that Sawridge reserved the right to question and reduce all legal accounts issued, including those of Ms. Twinn, as a factor suggesting the accounts were periodic interim. In my view, it is entirely appropriate (and expected) that Sawridge would develop an internal account review process. Over the course of this litigation, millions of dollars in legal fees were paid to various lawyers, including to Ms. Twinn.

Good governance and an internal review of accounts are not determinative of this issue. [ 75 ] There is nothing to suggest that Ms. Twinn’s accounts overall, would either increase or decrease depending on the results of the litigation or some other contingency, or that the parties agreed to adjust the accounts up or down at the end of the retainer. Ms.

Twinn’s accounts included her professional services for a specific period, and were billed according to the time spent at the agreed hourly rates. [ 76 ] Based on the conduct of the parties where each of the monthly accounts that pertained to the professional services rendered by Ms. Twinn were paid as due by Sawridge, I conclude that the periodic accounts issued by Ms. Twinn in the course of this very lengthy retainer are properly characterized as periodic final accounts, and were considered to be so by both Ms. Twinn and Sawridge: Lewis Estates at paras 44-46 . [ 77 ] As a result, Ms.

Twinn had no more than two years from the date of the account, to pursue a remedial order by way of review. [ 78 ] Ms. Twinn concedes that if I find the accounts were periodic final, then her Appointment for Review for the account dated October 31, 2005, in relation to her attendance at the UN Expert Conference, is clearly out of time.

a) The May 31, 2009 Account-Data Room Start-Up [ 79 ] In the course of oral argument, I questioned counsel on whether a limitation issue arose from the fact that the time and expenses relating to Lancaster House/Data Room start-up were incurred between 2003 and 2004, but not billed until 2009. This had not been addressed by the parties in their Briefs, as they were focused on limitation issues arising from the date the account was issued. [ 80 ] Counsel provided further written submissions on this issue on April 28, 2017. [ 81 ] Section 3(1) of the Limitations Act provides the limitation period for actions and remedial orders. It states: Subject to subsections (1.1) and (1.2) and

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known,

(

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 82 ] This

section must be applied to the facts of any given case, taking into account the circumstances existing, to determine the starting date for a limitation period. A plaintiff is not required to bring a claim until two years after discovery of the three criteria listed in s 3(1)(a): Gayton v Lacasse , 2010 ABCA 123 at paras 18-21 , 482 AR 179 . [ 83 ] The parties agree that the limitation period to bring a claim for services rendered started when Ms. Twinn knew or ought to have known of the injury, that the injury could be attributable to Sawridge and that the injury warranted bringing an action.

In the case of agreements, an injury is defined as “non-performance of an obligation”: s 1, Limitations Act. [ 84 ] Ms. Twinn argues that she understood, and her reasonable belief was, that she would be paid her time and the expenses incurred in setting up the Data Room. She argues the Court should not assume that she ought to have known “that the Band intended to be dishonest and deceitful with respect to its intention to pay the claim.” She points out there is no evidence to contradict her reasonable belief that the Band, through continued discussions, would agree to pay these costs.

Further, she argues, she could not have known Sawridge would refuse to pay until she actually rendered an account. Alternatively, Ms. Twinn argues that Sawridge’s failure to pay did not warrant bringing a proceeding until her retainer was terminated, because the stakes were high in this litigation and jeopardizing the Band’s position by suing over the relatively small cost of the Data Room set-up was not warranted. [ 85 ] Sawridge argues the injury attributable to it occurred when the expense and the work was actually incurred, and Ms.

Twinn should have issued invoices in the months the costs were incurred, in keeping with her usual practice. [ 86 ] In the circumstances of this case, it is difficult to accept that Ms.

Twinn, a barrister and solicitor, did not know and ought not to have known, that the Limitations Act applied to her claim for non-performance of Sawridge’s obligation to pay. [ 87 ] Significantly, in GJ White Construction Ltd v Palermo (1999), 2 CPC (5th) 110 , 7 CLR (3d) 13 (Ont SCJ) (WL) , the evidence before the Court in that case was that the invoice for work done in July and August 1989 was not sent out until December 30, 1994.

In light of that circumstance, Nordheimer J commented, at para 20, that it would be improper to use the time when the invoice was delivered as the basis for determining when the plaintiff knew, or ought to have known, the material facts giving rise to the cause of action because to “select [the invoice delivery] date would allow the plaintiff to effectively toll the limitation period for as long as it wished by simply withholding delivery of an invoice.” [ 88 ] Taking Ms. Twinn’s evidence at its highest, she relies on a clear belief or a clear understanding she would be paid.

With respect, this cannot delay the commencement of the limitation period. She leads no evidence to suggest that Sawridge waived the limitation period or voluntarily entered into some type of standstill agreement. A plaintiff cannot unilaterally impose a standstill agreement for delaying the preparation of an invoice: Royal Well Servicing Ltd v Murphy Oil Co , 2016 ABQB 418 at para 14 (Alta Master) [ Royal Well ] . [ 89 ] Nor on these facts, is Ms. Twinn justified in issuing the account only after her retainer had been terminated, in light of her argued significant legal and fiduciary duties to the Band.

Given the legal principle that a service provider cannot suspend the limitation period by delaying the issuance of an invoice, Ms. Twinn could have issued the account but delayed her request for payment pending discussions with Sawridge, or she could have negotiated a stand-still agreement on review.

She did neither. ( See Royal Well at para 14 ; Hugh Munro Construction Ltd v Moschuk , 2012 ONCA 109 at para 1 , 2012 CarswellOnt 1854 ). [ 90 ] It is neither fair nor in the interests of justice to issue an account to a client five to six years after the work was done, particularly when the long standing practice was to issue monthly accounts for time and expenses incurred.

It is incongruous to permit the lawyer an open-ended period in which to issue an account while imposing on the client, a regulatory limit of six months to review that account: Alberta Rules of Court , r 10.10; See also, the Law Society of Alberta, Code of Conduct , ch III, 3.6-3, Commentary 2, which stipulates, inter alia , that, “[s]ubject to any special agreement with the client, a final account should be rendered within a reasonable time after completion of the services.” [ 91 ] Further, the inordinate delay by Ms.

Twinn in issuing the account for the Data Room start-up puts Sawridge at a distinct disadvantage in being able to recall any discussions surrounding the subject matter of the account. It also thwarts the client’s ability to properly budget for and monitor its legal expenses.

The modern approach to litigation delay and presumed prejudice, most recently articulated by our Court of Appeal in Humphreys v Trebilock , 2017 ABCA 116 , 2017 CarswellAlta 647 , has, in my view, application to all aspects of litigation, including the rendering, enforcement of and challenge to accounts. [ 92 ] Consequently, I conclude that the account of May 31, 2009, relating to the Data Room start-up, was issued too late and the Appointment for Review of that account was filed too late. Therefore, I find that the May 31, 2009 Data Room start-up account is barred by s 3(1)(

a) of the Limitations Act .

b) The Accounts dated June 30, 2008-October 31, 2008 – Data Room shut-down and Creation of DML Index [ 93 ] The five invoices in question were sent to Sawridge with Ms. Twinn’s letter dated November 20, 2009. Ms. Twinn’s

Appointment for Review was filed June 10, 2011, more than two years from the date services were provided and more than two yearsfrom the date of the accounts. However, the limitation period may be extended by the application of s 8 of the Limitations Act, whichextends the limitation period if, during the limitation period, there has been an acknowledgment of or part payment toward the claim. Does

Section 8 of the Limitations Act apply to any of the Disputed Accounts? [94]

Section 8 of the Limitations Act reads as follows:

(2) Subject to subsections (3) and (4) and

section 9, if a person liable in respect of a claim acknowledges the claim, or makes a partpayment in respect of the claim, before the expiration of the limitation period applicable to the claim, the operation of the limitationperiod begins again at the time of the acknowledgment or part payment.

(3) A claim may be acknowledged only by an admission of the person liable in respect of it that the sum claimed is due and unpaid, butan acknowledgment is effective (

a) whether or not a promise to pay can be implied from it, and (

b) whether or not it is accompanied with a refusal to pay.

(4) When a claim is for the recovery of both a primary sum and interest on it, an acknowledgment of either obligation, or a part paymentin respect of either obligation, is an acknowledgment of, or a part payment in respect of, the other obligation. [95] Ms.

Twinn argues there has been both an acknowledgment and part- payment with respect to the accounts, which would serveto extend the limitation periods. [96] Sawridge, relying on the decision of Verville J in Dicorp Properties Ltd v Zellers Inc, 2005 ABQB 399, 381 AR 19, arguesthat any acknowledgment or part payment must be in relation to the disputed debt or accounts. [97] In Dicorp, the defendant objected to common area expenses assessed by the claimant landlord, raising concerns about thecalculation of the common area taxes, but it did not object to the common area expense attributable to a parking lot.

Despite making apayment towards those common area expenses it did not question, Verville J concluded that the defendant’s correspondence did notconstitute an acknowledgement of the common area taxes being claimed. [98] Graesser J, in John Barlot Architect Ltd v 973189 Alberta Ltd, 2008 ABQB 458, 73 CLR (3d) 44, distinguished Dicorp,concluding that the decision turned on the specific wording of the defendant’s correspondence and that the case did not otherwiseprovide guidance as to the nature or necessary form an acknowledgment must take to extend a limitation period. [99] Graesser J held it was not necessary for the acknowledgment to refer to the specific amount of the debt.

Citing Re Heffren, (MB KB), [1922] 2 WWR 1038, 68 DLR 766 (Man KB), he concluded that an acknowledgment is sufficient if thewords either expressly or by implication amount to an unconditional acknowledgment of the debt, but the acknowledgement must be inwriting. See also Nikel Investments Ltd v Gallaher, 2012 ABQB 276 at paras 22-23, 538 AR 373 (per Manderscheid J). [100] John Barlot involved a claim for outstanding architectural fees in relation to three different projects.

Graesser J considered theapplication of s 8 of the Limitations Act in relation to the “Haven Project.” [101] Graesser J reviewed three pieces of correspondence issued by the client. The first was a letter in July 2004 saying “in follow upwith our discussions of July 15, 2004, you have advised me that you will prepare the completion certificates for the Haven [Project].Once these certificates are completed, please contact me so that I can certify the cheque for final payment...” [102] Then, in early 2005, a settlement meeting took place between the parties.

The plaintiff asked the client that the proposal be putin writing.

The client made an offer in writing to pay the full amount owing under the “Haven Project” and some amount to anotherproject. [103] Finally, on April 20, 2005, the client wrote requesting certain schedules be prepared to obtain completion certificates for thevarious units and that upon completion of the requested schedules, the client would “prepare a certified cheque in the amount of$87,007.79” being the full amount owing on the “Haven Project.” [104] In dismissing the related appeal, the Court of Appeal concluded that the July 2004 letter, the February 2005 settlement offer andthe April 2005 letter, either alone or in combination, provided ample support for Graesser J’s conclusion that the client hadacknowledged the plaintiff’s claim respecting the “Haven Project,” and therefore extended the limitation period, pursuant to s 8: JohnBarlot Architect Ltd v 973189 Alberta Ltd, 2009 ABCA 307 at para 15, 460 AR 393. [105] In reviewing the authorities provided, the following principles emerge: - “Claim” is defined in s 8(1) as being an “accrued liquidated pecuniary sum”; - For the purposes of s 8, an acknowledgement need not refer to the specific amount of the debt; - The acknowledgement must be in writing; oral promises to pay are not sufficient; - The words used must expressly or by implication amount to an unconditional acknowledgement of the debt; - The limitation period may be extended by either an acknowledgment or a part payment.

[106] I would add that the analysis is factually driven, and the words used must be assessed in the context of the circumstancesexisting. [107] In Dicorp, the defendant never acknowledged the claim relating to common area taxes, because its correspondence consistentlyquestioned the calculations. The part payments made were found to be made towards amounts not in dispute. In that case, Verville J, atparas 68-69, commented: [68] Partial payment, sometimes constituting a form of acknowledgement, may extend a limitation.

However, here the Defendant clearlyindicated to the Plaintiffs that it would pay only with respect to the separate parking lot, which debt it did not dispute. The Defendantsubmitted that this was not an acknowledgement of the remainder of the debt. [69] Brandon v.

Dale, (SK CA), [1930] 2 D.L.R. 272 (Sask.C.A.) stands for the principle that for a part payment toextend a limitation, it must be made on account of the debt for which the action is brought, and it must appear that the payment wasmade on account of a greater debt, because unless a payment amounts to an admission that more is due, it cannot be taken as anadmission of a still existing debt. There is nothing in the [Limitations Act] which indicates that this principle is no longer applicable.

Ifind that the Defendant’s payment was on account of the charges with respect to which it admitted liability, not for any of the disputeddebt. The payment did not extend the limitation. [108] In John Barlot, while the correspondence seemed to tie payment to requests that further services be provided, the defendantnevertheless agreed to pay the entire amount owing. [109] In the matter before me, Ms. Twinn points to a series of communications from Sawridge as evidencing its acknowledgment ofher claims. First, a letter from Roland Twinn, dated September 17, 2009, in response to Ms.

Twinn’s explanatory letter regarding certaincontentious invoices. In this letter, Roland Twinn advised that Sawridge would like to resolve all outstanding accounting matters betweenMs. Twinn and Sawridge, and requested that she issue accounts for the period July 2008 to September 2008 so that all issues andconcerns could be dealt with at one time. [110] In response, Ms. Twinn sent a series of accounts under her cover of November 20, 2009. These accounts included new accountsisolating the DML indexing charges as well as accounts for the period July 2008 to September 2008. [111] Secondly, she relies on Mr.

McKinney’s letter to her, dated December 1, 2009, advising that Sawridge would be paying$10,000 per month towards the remaining outstanding balance and that he would be reviewing the invoices recently submitted, andadvising of any issues or comments. [112] Mr.

McKinney’s comments and concerns were later outlined in his letter of April 22, 2010. [113] Counsel for Sawridge concedes that part payments were made on three accounts, thus extending the limitation period to allowfor review: September 9, 2008 (Inv. 1034.200809), October 31, 2008 (Inv. 1034.200810) and December 31, 2008 (Inv. 1034.200812). [114] Regarding the balance of the invoices that relate to the Data Room shut down and DML Index, Sawridge argues it did notprovide an acknowledgement as contemplated by the Limitations Act, s 8, because at the time Sawridge issued the letter of September 17,2009, it had not received the majority of the accounts in issue, and the balance of the correspondence clearly outlined various concerns aswell as questions regarding the accounts issued. [115] In Nickel Investments Ltd, Manderscheid J referenced the Alberta Law Reform Instititute’s December 1989 Report No 55,Limitations, discussing the policy reasons for allowing an extension of the limitation period where there is an acknowledgement of thedebt by the debtor: There are two policy reasons for the common law doctrine of acknowledgement: 1.

If a debtor has admitted his indebtedness and his legal duty to pay the debt, he has, by his conduct, renounced his need for theprotection afforded by a limitations system. If he has admitted his legal liability, the reasons for limitations protection based on staleevidence, peace and repose, and economic cost are so reduced that a renewed limitation period is justified; 2. The second reason is based on estoppel.

If the debtor has promised to pay a debt, the creditor should be permitted to rely on this newpromise without bringing an action for a renewed limitation period. [116] These stated policy reasons are consistent with the established principle that to extend the limitation period, theacknowledgment must be unconditional. [117] In Dicorp, it was clear that the partial payment made by the defendant related only to the debt it did not dispute. In John Barlot,the defendant agreed to pay the entire amount owing.

Here, the correspondence of September 17, 2009, December 1, 2009 and April 22,2010 is not clear cut. [118] The letter of April 22, 2010 provides a detailed outline of questions and concerns regarding various accounts covering theperiod June 2008 to December 2008 and May 2009 through October 2009. While there is no indication that Sawridge was refusing to paythese accounts outright (as was the case with the charges for attendance at the UN expert seminar) it cannot be said this letter, inisolation or together with the earlier correspondence, viewed contextually, constitutes an unconditional acknowledgment.

This isevidenced in the penultimate paragraph of that letter: “We note that we are still paying $10,000 per month in respect of the outstanding amounts which we do not have concerns with...”(Emphasis added) [119] With the exception of the three invoices in which part payments were made, referenced earlier, the invoices dated June 30, 2008

(Inv. DML 200806), July 31, 2008 (Inv. DML 200807) and August 31, 2008 (Inv. DML 200808) are barred by the Limitations Act as the Appointment for Review was not filed in time and there was no acknowledgement or a part payment extending the limitation period for these invoices. 3. Estoppel [ 120 ] In the alternative, Ms.

Twinn argues Sawridge is estopped from relying on the limitation period by reason of representations by Sawridge that it would pay for the costs relating to the Data Room start-up and shut-down that she relied on to her detriment. [ 121 ] Words or conduct, combined with detrimental reliance, may estop a party from relying on the Limitations Act as a bar to the claim. The common law doctrine of promissory estoppel continues to operate in conjunction with the Limitations Act .

Whether the words or conduct constitute a representation and whether that representation was relied on to a party’s detriment, are findings of fact: Brar v Roy , 2005 ABCA 269 at para 32 , 371 AR 290 . [ 122 ] The evidence before me does not establish that Sawridge, through its words or conduct, represented that it would pay these costs, nor does it establish that Ms. Twinn relied on these representations to her detriment. The alternative claim of estoppel is dismissed. III. Conclusion [ 123 ] The account relating to Ms.

Twinn’s attendance at the UN Expert seminar in Phoenix did not form part of her retainer with Sawridge, and in any event, is barred under the Limitations Act . [ 124 ] The accounts relating to the Lancaster House/Data Room start-up did not form part of Ms. Twinn’s retainer with Sawridge, and in any event, are barred by the Limitations Act. [ 125 ] The accounts relating to the Data Room shut down and DML index constitute an incidental part of Ms.

Twinn’s retainer, with the exception of the accounts noted below however, the accounts are barred by the Limitations Act as the limitation period to enforce these accounts was not extended by virtue of s 8 of the Limitations Act . [ 126 ] Therefore the following accounts shall be remitted to a Review Officer for review in accordance with the Alberta Rules of Court : - Invoice 1034.200809 dated September 9, 2008; - Invoice 1034.200810 dated October 31, 2008; - Invoice 1034.200812 dated December 31, 2008; - Invoice 1034.200905 dated June 30, 2009; - Invoice 1034.200907 dated July 31, 2009; - Invoice 1034.200909 dated September 9, 2009; - Invoice 1034.200910 dated October 9, 2009.

Heard on the 24 th day of March, 2017. Dated at the City of Edmonton, Alberta, this 7 th day of June, 2017. Dawn Pentelechuk J.C.Q.B.A. Appearances:

Brian P. Kaliel, Q.C. Miller Thomson LLP for the Applicant Patty Ko Bishop & McKenzie LLP for the Respondent