Guardian Law Group v LS, 2021 ABQB 591

Court of Queen’s Bench of Alberta Citation: Guardian Law Group v LS, 2021 ABQB 591 Date: 20210728 Docket: DA01 016110 Registry: Calgary Between: Guardian Law Group Applicant - and - LS, In Her Capacity as Guardian and Trustee of RL Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice C. M. Jones _______________________________________________________ Introduction [ 1 ] I am the Case Management Justice for this matter, which originally arose when RL challenged a determination that he lacked capacity to manage his financial affairs.

RL retained the Applicant, Guardian Law, to represent him at a capacity hearing. The matter was ultimately settled before the hearing could take place, with the result that the Respondent, LS, now has guardianship and trusteeship over RL.

[ 2 ] The Applicant brings a claim against LS, in her capacity as RL’s guardian and trustee, for payment of legal fees incurred while representing RL.

LS opposes on the grounds that RL lacked the capacity to retain the Applicant, and the retainer agreement can therefore be rendered null and void at her option. [ 3 ] To assist in my decision, on March 9, 2021, I directed the parties to submit arguments in answer to the following question: At law, what are the requirements that must be met by counsel to be validly retained to represent an individual in the context of that individual’s own capacity hearing? [ 4 ] I received briefs from both parties and heard oral submissions at a hearing on May 31, 2021.

Having reviewed the submissions, I issue this decision to lay out the legal principles that will apply to future proceedings in this case, and to offer guidance to the legal profession about how to approach a retainer to represent a client at his or her capacity hearing. Background [ 5 ] This decision is one of pure law, and as such I make no findings of fact, nor do I apply the relevant tests to the facts. The following facts are uncontested and provided for context only. [ 6 ] In June 2013, RL executed an enduring power of attorney (“EPA”) in favour of his daughter, LS.

The EPA was to take effect upon a medical declaration that RL lacked capacity to manage his own finances. In November 2015, a physician, Dr. Azad, signed a declaration that RL was incapable of managing his estate. Subsequently, LS took over management of her father’s finances. [ 7 ] In March 2018, a second physician, Dr. Madin, signed a second, substantially-identical declaration that RL lacked capacity to manage his affairs. [ 8 ] RL became unhappy with LS’s handling of his accounts and decided to challenge the declarations of incapacity.

In May 2018, he retained Guardian Law and they represented him throughout the proceedings. [ 9 ] Shortly thereafter, Guardian Law retained a physician, Dr. Mayhew, to assess RL’s capacity. Dr. Mayhew examined RL at Guardian’s offices and concluded that he had capacity to manage in the domains of financial and legal matters. [ 10 ] In September 2018, I ordered an independent capacity assessment for RL. This was conducted by a psychologist, Dr.

Patchet, who opined in his report that RL lacked the ability to retain and instruct counsel and to manage financial affairs. [ 11 ] Also, in September 2018, independently and without my direction, Guardian Law retained a psychiatrist, Dr. Quickfall, to produce another report on RL’s capacity. Dr.

Quickfall concluded that RL’s capacity was on the borderline, but did not warrant a removal of his ability to make decisions and could instead be mitigated with proper support systems. [ 12 ] In May 2019, out of concern about his capacity, I ordered that a litigation representative be appointed for RL pursuant to Rule 2.11 of the Alberta Rules of Court , Alta Reg, 124/2010 (“ Rules ”). [ 13 ] In the face of conflicting expert opinions, we proceeded toward a hearing to determine RL’s capacity.

However, the matter did not proceed to a hearing and LS resumed management of her father’s affairs. [ 14 ] On June 28, 2019, Guardian Law filed a “Brief of Argument for Costs”, in which it claimed $92,789.00 that RL allegedly owes in legal fees arising from his action. [ 15 ] LS opposes the application on the grounds that her father lacked capacity to retain Guardian Law, and the retainer agreement is therefore voidable at her option. Issue [ 16 ] I repeat that these reasons do not resolve the dispute between the parties.

Instead, they provide guidance and clarity on the legal test for enforceability of a lawyer-client retainer agreement where the client’s capacity is in issue. [ 17 ] The sole issue before me is: At law, what are the requirements that must be met by counsel to be validly retained to represent an individual in the context of that individual’s own capacity hearing? Analysis [ 18 ] I must first decide the applicable area of law, then explain how capacity is addressed within that context. I will then discuss how to apply the relevant legal tests specifically to retainer agreements.

Procedural Note [ 19 ] Guardian brought its claim as an application for costs, hence its status as Applicant in this decision. However, for the reasons below, it seems to me that the dispute at bar falls squarely within the ambit of contract law, rather than the cost provisions, of the Rules

of Court and Guardian is therefore more accurately characterized as the plaintiff in a contractual claim. [ 20 ] I will leave to the parties any potential procedural issues that might arise from my characterization of the dispute, and address the question before me on its merits. Contract Law Governs this Dispute [ 21 ] The parties’ submissions generally addressed my question by analyzing the reasonableness of lawyers’ actions, elucidating best practices for assessing capacity in the context of negligence, and noting important policy concerns specific to retainer agreements.

These are valid considerations, and I address them below, but neither party explicitly located these concerns within the framework of contract law. I do not fault counsel for this, as neither the pleadings nor the question was framed in contractual terms, but nonetheless I find that contract law should govern the dispute. [ 22 ] A retainer agreement is a contract for legal services between a lawyer and a client. Principles of contract law apply to retainer agreements, subject to

Part 10 of the Rules of Court : Homersham v New Urban (Ramsay Exchange) GP Ltd ., 2017 ABQB 384 at para 43 , rev’d on other grounds 2018 ABCA 303 . This intervention of the Rules gives retainer agreements a “special character” that tempers the strict application of contract law with equitable considerations: Abel v Burke , 2000 BCCA 284 at para 14 . [ 23 ]

Part 10 of the Rules concerns independent review of retainer agreements and is not at issue in this decision. The decision of a review officer under

Part 10, Subdivision 4 centres on the reasonableness of fees. A review officer does not interpret retainer agreements; that authority lies with the Court alone: Sweetgrass First Nation v Rath & Company , 2014 ABCA 426 at para 3 . [ 24 ] Much has been written on the subject of duties and best practices for lawyers dealing with clients who have questionable capacity.

Issues of capacity arise in a variety of legal contexts. [ 25 ] In the area of wills and estates, for example, the issue of testamentary capacity arises if a testator executed a will when he or she was suffering from a late-in-life cognitive impairment. If the lawyer who prepared the will did not take proper steps to ascertain the client’s capacity, he or she can be held liable in negligence. [ 26 ] Capacity can also arise in lawyer’s ethics.

Under the Law Society of Alberta Code of Conduct , lawyers must satisfy themselves that their client has the “requisite mental ability to make legal decisions about his or her legal affairs and to give the lawyer instructions”: Ch 3.2-15, commentary [1]. Failure to meet that standard can result in disciplinary action against the lawyer. [ 27 ] Both the wills and estates and ethical context are concerned with claims against lawyers, either for negligence or for breach of ethical duty. However, the present dispute is a claim brought by a lawyer against a former client.

The remedy sought is contractual damages in the amount of the fees allegedly owing under the retainer agreement. The Respondent denies the claim by appealing to a contractual defence: lack of capacity. These factors indicate that contract law governs. [ 28 ] With respect, I disagree with the Applicant’s characterization of the issue as being one of costs. The matter was resolved without the need to proceed to a capacity hearing. Guardian cannot assert that it was substantially successful in asserting RL’s capacity, since LS currently manages her father’s affairs.

In these circumstances, a cost award ordinarily would not be appropriate. [ 29 ] Costs are usually awarded based on schedules set out in the Rules . Guardian Law is instead claiming the amount of legal fees owing under the retainer agreement. [ 30 ] Costs awards are made between parties to litigation. This case is a claim made by a law firm, who represented a party to the dispute, against its own former client.

The fact that LS, who was the Defendant in the capacity dispute, is the Respondent in this claim is irrelevant: she responds to this action as her father’s guardian and trustee, not in her personal capacity. [ 31 ] The fact that this claim has been brought by the lawyer, the non-applicability of

Part 10 of the Rules , the remedy sought, and the defence raised, all lead me to the conclusion that contract law governs the present dispute, and disputes like it, and I will proceed on that basis. Capacity Generally [ 32 ] The Adult Guardianship and Trusteeship Act , SA 2008, c A-4.2 [“ AGTA ”] offers the following definition: 1(d) “capacity” means, in respect of the making of a decision about a matter, the ability to understand the information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of (

i) a decision, and (ii) a failure to make a decision; [ 33 ] Determinations of capacity are fact-specific. Each person’s capacity must be assessed with respect to the particulars of their circumstances. [ 34 ] Capacity is also task-specific. It does not follow from a finding of capacity or incapacity in one area that a person has or lacks capacity in any other area: Carmichael v GlaxoSmithKline Inc . , 2020 ONCA 447 , leave to appeal ref’d [2021] SCCA No. 409 (SCC); Hrycyna v Hood , 2018 SCKA 49 at para 6. [ 35 ] In many contexts, including contract, there is a presumption that adults have capacity: Chitty on Contracts , (32 nd ed, 2015), vol. 1, at p. 837 [“ Chitty ”].

[36] The Respondent submits, and I agree, that a finding of capacity in a certain area does not lead to a finding of capacity withrespect to all tasks within that area. For example, a client may have capacity to instruct counsel in relation to one legal problem, but notanother. The complexity of each specific task in question must be assessed relative to the person’s cognitive ability. [37] Capacity can change over time. It can increase or decrease, depending on each person’s circumstances. [38] Different categories of capacity have been described as falling into a hierarchy.

This was described in Calvert (LitigationGuardian of) v Calvert, (ON SC), [1997] 32 OR (3d) 281 (SC), aff’d (ON CA), [1998] 37 OR(3d) 221 (CA), leave to appeal ref’d [1998] SCCA No. 161 (SCC) at para 56: There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisionsregarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the abilityto understand financial and legal issues. This puts it significantly higher on the competency hierarchy.

It has been said that the highestlevel of capacity is that required to make a will. [emphasis added] [39] I take this hierarchical nature of categories of capacity to be a useful baseline, not a determinative statement. To clarify, afinding of a capacity in a “higher” area does not necessarily lead to a finding of capacity in all “lower” areas.

This was stated succinctlyin Sylvester v Britton, 2018 ONSC 6620 at para 71: I do not agree that because there has been a finding of incapacity to manage property and finances, a party is necessarily incapable ofproviding instructions to counsel on all matters in issue in litigation. A person may be capable for one task yet incapable for another.

Thenature of the issues in the litigation will vary in complexity. [40] In other words, while instructing counsel will generally require higher capacity than managing financial affairs, it is notnecessarily true that every instruction to counsel will be more complex than every financial decision. Again, it is fact- and task-specific. Capacity in Contract [41] Capacity is a fundamental aspect of contract law. If a party does not have the requisite capacity, an otherwise valid contractcan be defeated. As noted above, adults are presumed to have the capacity to enter contracts: Chitty at p. 837.

The burden of provingotherwise is on the party alleging incapacity, on a balance of probabilities: Hittinger v Turgeon, 2005 ABQB 257 at para 22. [42] Contractual capacity is assessed at the time the contract was formed. [43] A contract with a party that lacks capacity is voidable at the option of that party.

The test for whether a contract is voidablebased on mental incapacity comes from Bank of Nova Scotia v Kelly, (PE SCTD), [1973] 41 DLR (3d) 273 (PESCTD) at para 10: 1) At time of contract, the party seeking relief was incompetent; 2) By reason of such incompetence, that party was incapable of understanding the terms of the contract and forming a rationaljudgment of its effect upon his or her interests; and 3) The other party had actual or constructive knowledge of such incompetence. [44] For a contract to be voided for incapacity, it must be unfair to the party lacking capacity.

In RMK v NK, 2020 ABQB 328,Goss J conducted a thorough review of the jurisprudence on capacity and summarized the law as it relates to unfairness and knowledgeat para 140: Courts of equity will not interfere if a contract entered into with a mentally incompetent person is fair and was made in good faith, if theother party to the contract had no knowledge of his or her mental incapacity and did not take advantage of that person. The contract willonly be set aside if it is unfair to the mentally incompetent individual.

If it is fair, the person will be without a remedy; [45] Unfairness alone does not create grounds for relief. A fair contract will not be unwound, even if incapacity and knowledge aremade out: Chitty at p. 873. Only if the unfairness amounts to equitable fraud does a separate action exist. Capacity to Enter Retainer Agreements Capacity to Instruct Counsel Analogy [46] Capacity to enter a retainer agreement is very closely connected to the capacity to instruct counsel.

In RMK, Goss J adoptedthe test for instructing counsel from Costantino v Costantino, 2016 ONSC 7279, at para 47: To meet the test for capacity to instruct legal counsel, a person must:

a) Understand what they have asked the lawyer to do for them and why;

b) Be able to understand and process the information, advice, and options the lawyer presents; and

c) Appreciate the advantages and drawbacks and the potential consequences associated with the options they are presented with. [47] There are some differences between capacity to instruct and capacity to enter into a retainer agreement. Due to its contractualnature, capacity to enter into a retainer agreement is assessed only at the time the contract is formed. Capacity to instruct counsel must be

determined on an ongoing basis with respect to each decision: Costantino . [ 48 ] The effect of this is that a retainer may be validly entered into if the client had capacity at the time it was created. If the client’s capacity diminished over the course of the retainer such that the lawyer could no longer accept instructions, the lawyer would have ethical obligations. However, the retainer agreement would not be voidable since the parties had capacity when it was signed.

Policy Considerations of Retainer Agreements [ 49 ] Guardian argues that retainer agreements have unique public policy elements that differentiate them from other types of contracts. People have a right to representation. This is particularly important in the context of a capacity hearing since the client may be incapable of self-representing. [ 50 ] Guardian says that people with questionable capacity are vulnerable and that any decision that puts barriers between them and effective representation creates a danger of exploitation and injustice.

This finds support in Weldon McInnis v John Doe , 2014 NSSM 13 , rev’d on other grounds 2014 NSSC 437 , at para 39 : A too-quick finding of mental incapacity to retain and instruct a solicitor puts such clients at risk of being taken advantage of by others without the protection that legal representation might provide. It might make solicitors leery of accepting retainers from such clients for fear that their accounts would not be paid.

Such a result would not be a good policy. [ 51 ] The thrust of Guardian’s position is that the burden of determining client capacity should fall on counsel, as indicated in Hood at para 7. The courts should defer to counsel’s judgment. If a lawyer believes, at the time the retainer agreement is signed, that a court could reasonably conclude that the client has capacity, then the agreement should stand. [ 52 ] I agree that people whose capacity is in question are vulnerable to exploitation, and that the first inquiry into their capacity must be conducted by counsel.

I also agree that any barrier placed in the way of a vulnerable client creates the potential for harm. [ 53 ] However, in my view, these concerns are not enough to displace the Court’s role. There are other policy concerns at play. Not all lawyers are honest, and the risk of exploitation extends to exploitation by counsel. Access to representation is important, but it is equally important that participants in the justice system are free from undue influence and capable of making the requisite decisions. [ 54 ] There is also a broader context.

Guardian frames the inability to walk into a law firm and sign a retainer agreement as a denial of access to representation. In my view, this is too narrow a view of the right. A person with diminished capacity can access the courts through a litigation representative. In fact, Rule 2.11 (

c) mandates that one be appointed if the person lacks capacity, as defined in the AGTA , to make decisions in respect of the claim. [ 55 ] Counsel must make the first assessment of capacity when deciding to enter into a retainer, but where a client later challenges the retainer it is not sufficient to simply defer to counsel’s determination.

Counsel’s finding of capacity can be weighed along with other factors. [ 56 ] The Court has a role in analyzing whether counsel had knowledge that the client lacked capacity to fully appreciate the terms of the retainer, and whether sufficient mitigating steps were taken to address the concern.

The Test [ 57 ] I propose the following test for voiding a retainer agreement for incapacity: 1) Did the client, at the time of entering into the retainer agreement, have the capacity to understand its terms and form a rational judgment of its effect on his or her interests? 2) Did the lawyer know that the client lacked capacity, and more specifically

a) Were there sufficient indicia of incapacity known to the lawyer to establish a suspicion that the client lacked the requisite capacity?

b) If yes, did the lawyer take sufficient steps to rebut a finding of actual or constructive knowledge of incapacity? [ 58 ] This is a particularization of the test for contractual capacity from Kelly , with elements specific to retainer agreements. [ 59 ] I note that the sequence of parts 1 and 2 of the test is not important, and they can be dealt with in either order based on practical considerations. In order to void a retainer agreement, the answers to the above questions must be: 1) No 2) Yes (determined by the answers to

a) and b):

a) Yes

b) No [ 60 ] This reversing in order is possible because both parts of the test are necessary conditions, and because neither depends upon the other.

Part 1 focuses on the client’s actual capacity,

part 2 asks what the lawyer knew. [ 61 ] In

part 1, the factual determination of incapacity may involve a lengthy hearing and a battle of experts. It may be expedient to

resolve the knowledge and mitigation in

part 2 first, to avoid such a proceeding. [ 62 ] If a challenge to a retainer agreement arises after a proceeding that ruled on capacity in another context, such as financial capacity, there may be a risk that the contractual capacity assessment will be tainted, since it is retrospective. In such a case, examining the knowledge and actions of the lawyer under

part 2 first may be desirable. [ 63 ] It is up to the trier of fact to determine how to approach the order of the test, based on the circumstances of each case. [ 64 ] Having elucidated the test, I offer the following comments to help clarify the test and guide lawyers in approaching capacity issues.

Part 1: Did the client have capacity? [ 65 ] The

definitions of capacity canvassed in these reasons share two common concerns: 1) that the person in question can understand the relevant information and 2) that the person can appreciate how the relevant information will affect him or her. [ 66 ] The Kelly test requires that the claiming party be found “incompetent”, then examines whether that incompetence causes them to be incapable of understanding and appreciating the contract.

In my view, “incompetence” implies a formal declaration or diagnosed condition, both of which may indicate incapacity, but neither of which is a prerequisite to a finding of incapacity. [ 67 ] Nor does a formal declaration or diagnosed condition automatically lead to a finding of incapacity. Even where a person needs a guardian, for example, they may be capable of instructing counsel on certain issues: Hood at para 6. [ 68 ] Earlier cases employed the term “lunatic” to describe people who lacked capacity: Imperial Loan Co Ltd. v Stone , [1982] 1 Q.B. 599 . The term is pejorative, and has faded out of use.

I would similarly retire the label of “incompetent”. [ 69 ] The essence of the inquiry is whether the person can understand and appreciate the consequences of the retainer agreement. Modern

definitions of capacity, such as the one found in the AGTA , confirm this focus by merely asking whether the person has sufficient understanding and appreciation. A separate question of whether he or she is “incompetent” is unnecessary.

Part 2(a): Were there sufficient indicia of incapacity known to the lawyer to establish a suspicion that the client lacked the requisite capacity? [ 70 ] It is important to emphasize again that this analysis is done under the framework of contract. Contract parties have no duty to take positive steps to inquire into the other party’s capacity: absent information that alerts them to incapacity, they are entitled to rely on the presumption of capacity: Chitty at p. 876. A lawyer may have to take such steps under ethical obligations, or to meet a fiduciary duty, but as a contract party there is no such requirement.

The issue in contract is knowledge. [ 71 ] Black’s Law Dictionary (11 th ed, 2019) defines suspicion as “the apprehension or imagination of the existence of something wrong based only on inconclusive or slight evidence, or possibly even no evidence”. [ 72 ] At this stage, the focus is on the information available.

The point is to determine whether there is information available which, absent further inquiry or mitigation, could result in a finding that the lawyer had either actual or constructive knowledge of the client’s incapacity. [ 73 ] In her brief, the Respondent offers a list of potential factors that indicate a suspicion of incapacity.

These factors are largely drawn from RMK and Kozak Estate (Re) , 2018 ABQB 185 and include: 1) The retainer pertains to proceedings which concern the client’s capacity; 2) Whether the client appreciates the nature of the proceedings; 3) A past history of being unable to keep and choose counsel; 4) Psychological or documentary evidence of incapacity; 5) How the client presents when meeting counsel; 6) Inability to communicate objectives and priorities clearly; 7) A repeated focus on irrelevant issues or facts; 8) Mistaken beliefs regarding court procedures; 9) Reliance on another party to communicate with counsel; or 10) Increasing isolation from friends and family. [ 74 ] This list is neither exhaustive nor mandatory.

The analysis must proceed on a case-by-case basis. No single factor necessarily leads to a finding either way, and there may be other relevant factors to consider. The fact-specific nature of capacity precludes an authoritative list of considerations. [ 75 ] Courts have held that medical evidence does not necessarily outweigh a lawyer or layperson’s opinion about a person’s

capacity: Wood v David Mitchell et al., 2020 ONSC 4903; Sawatzky v Sawatzky, [1986] SJ No 371 (QB). Though the reasons for alawyer’s conclusion about his or her client’s capacity are subject to solicitor-client privilege, this may be waived by putting capacity inissue: Britton; Wood. [76] If suspicion cannot be made out, the inquiry ends and the retainer agreement stands.

Part 2(b): If yes, did the lawyer take sufficient steps to ascertain capacity so as torebut a finding of actual or constructive knowledge of incapacity to contract [77] If suspicion is made out under

part 2(a), the focus shifts to the actions of the lawyer. There are two ways to prevent asuspicion of incapacity from rising to the level of actual or constructive knowledge: mitigate the client’s potential incapacity, or makereasonable inquiries which confirm the client’s capacity. [78] Mitigating potential incapacity is done by bolstering the client’s ability to understand and appreciate the terms of the retaineragreement.

For example, the agreement might be simplified. [79] Black’s Law Dictionary (11th ed, 2019) defines constructive knowledge as “knowledge that one using reasonable care ordiligence should have, and therefore that is attributed by law to a given person”. [80] Suspicion becomes knowledge where there were factors of which the lawyer was aware, or using reasonable care anddiligence should have been aware, which demonstrate that the client was not capable of understanding the terms or effects of the retaineragreement. [81] Actual or constructive knowledge is rebutted where the lawyer takes reasonable steps to conclude that the client does in facthave the requisite capacity.

Mere suspicion cannot create an inference of knowledge unless it mandates further action which is not taken.Where further action is taken that confirms the client’s capacity, knowledge is rebutted. [82] The Respondent offers suggestions of reasonable steps to take, and I endorse them. As above, these factors are to be assessedin the circumstances of each case, and do not form an exhaustive or exclusive list.

The steps include: 1) Obtaining consent from the client to speak with his or her family doctor or psychologist; 2) Obtaining consent from the client to request their medical records; 3) Reviewing any capacity assessments that have been performed; 4) Speaking with family, friends, or close contacts for their opinion on the client’s capacity; or 5) Requesting a capacity assessment. [83] The most extreme step is to apply to the Court for advice and direction. This will not be required in most cases.

However,where there are serious concerns about a client’s capacity that cannot be mitigated by other means, it is better for counsel to engage theCourt’s judgment than proceed at their own risk to represent a client who may not fully understand and appreciate the retainer. [84] The reasonableness of the steps taken is determined with reference to the lawyer’s level of knowledge after they werecompleted.

If the Court is satisfied that the lawyer still knew or ought to have known that the client lacked capacity, then the lawyer’sefforts were insufficient. [85] However, if the Court is satisfied that lawyer’s efforts led to a sufficient certainty that the client had capacity, the inquiry endsand the contract stands.

Even if it is determined that the client in fact lacked capacity, if the Court is satisfied that the lawyer wassufficiently certain the client had capacity then the contract cannot be voided and the inquiry ends. [86] Where the lawyer’s efforts lead to uncertainty or doubt about the client’s capacity, the Court must ask whether the steps takenconstituted “reasonable care and diligence”, or whether a reasonable lawyer would have looked further.

Uncertainty, doubt, andsuspicion are not actual knowledge, and if reasonable care and diligence was taken, then they cannot be constructive knowledge either. [87] It is critically important that a trier of fact assess the reasonableness of the steps actually taken. It is not for a trier of fact tosay a lawyer should have done what the judge would have done in that situation, or that “more reasonable” steps should have been taken:Weldon McInnis v John Doe, 2014 NSSC 437 at paras 39-41.

If the lawyer’s actions were reasonable and they left him or her short ofthe requisite knowledge, the retainer agreement must stand. Equitable Considerations Apply [88] I am mindful that, in the present case, Guardian’s obligations under the retainer agreement appear to have been fullyperformed, and LS seeks to void the contract now that only payment remains outstanding. As such, other equitable considerations mayapply, as stated in Waldock v.

Bissett, (BC CA), [1992] 67 BCLR (2d) 389 (CA) at p. 541: In considering whether to cancel the contract for not being fair in its inception, the court, or now the registrar, may apply all theprinciples of equity which go to whether justice requires that a contract voidable for such things as breach of fiduciary duty ormisrepresentation or duress should be rescinded even though it has been fully performed and, thus, restitutio in integrum in its strictsense is not possible.

Conclusion [ 89 ] Claims by counsel against their clients for payment under retainer agreements fall within the purview of contract law. Defences based on incapacity should proceed under the framework set out in these reasons. [ 90 ] I thank counsel for their submissions in this matter. Heard on the 31 st day of May, 2021. Dated at the City of Calgary, Alberta this 28 th day of July, 2021. C. M. Jones J.C.Q.B.A. Appearances: Mathew J.N. Farrell and Donna L. Gee for the Applicant Paul E. Reid for the Respondent