Martland & Saulnier Law Firm v. Legal Services Society of British Columbia, 2018 BCSC 1110

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Martland & Saulnier v. Legal Services Society of British Columbia, 2018 BCSC 1110 Date: 20180704 Docket: S160156 Registry: Vancouver In the Matter of the Legal Profession Act , S.B.C. 1997, c. 9, s. 70 Between: Martland & Saulnier Law Firm And Legal Services Society of British Columbia Client Before: District Registrar Nielsen Reasons for Decision Counsel for the Law Firm: J. Saulnier Counsel for the Client: J. Doyle Place and Dates of Hearing: Vancouver, B.C. June 14 and September 25, 2017; April 19 and June 5, 2018 Place and Date of Judgment: Vancouver, B.C.

July 4, 2018 Table of Contents Introduction .. 3 Background .. 3 Legislation .. 5 Policy .. 6 Jurisdiction of the Registrar .. 10 The Application of the Patently Unreasonable Standard .. 15 Application of the s. 71(4) Factors .. 17 (

a) The complexity, difficulty or novelty of the issues involved . 17 (

b) The skill, specialized knowledge and responsibility required of the lawyer 17 (

c) The lawyer’s character and standing in the profession . 17 (

d) Amount involved . 17 (

e) Time reasonably spent 18 (

f) If there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable . 21 (

g) The importance of the matter to the client whose bill is being reviewed . 21 (

h) The result obtained . 22

(

i) Other circumstances . 22 Disposition .. 23 Introduction [ 1 ] This is a review of the lawyer’s bill presented to the Legal Services Society (the “LSS”) on February 19, 2015, pursuant to the Legal Profession Act , S.B.C. 1998, c. 9 (the “ LPA ”). The law firm seeks a total of $18,159.05 plus interest on their unpaid bill. The claim is based upon 121.6 unpaid preparation hours for Mr. Saulnier at a rate of $88.10 per hour, for a total of $10,712.96, and, 112.7 hours of unpaid time for Mr. Saulnier’s junior, Ms.

Dyck, at a rate of $66.07 per hour, for a total of $7,446.09. [ 2 ] The total fees billed and paid by the LSS is $63,141.27, which comprises of 629.4 hours at $88.10 per hour in prep time, and 87.3 hours at $88.10 per hour for court attendance fees. [ 3 ] Including submissions, the hearing took place over four days. At the hearing, Mr. Saulnier gave evidence on behalf of the law firm, and Mr. Griffiths gave evidence on behalf of the Legal Services Society.

Background [ 4 ] The background giving rise to this matter is not in dispute. [ 5 ] In 2009, when the accused was 15 years old, he was charged with the second-degree murder of his 20-month-old nephew. The accused was in custody until his acquittal in 2015. [ 6 ] The firm was involved in the defence of the accused from his arrest, both for his criminal charges and, after he was found unfit following his review board hearings. [ 7 ] When the accused was 18 years old he was found to be “fit but fragile” by both the review board and the court pursuant to s. 672.29 and 672.49 of the Criminal Code , R.S.C. 1985, c.

C-46. In effect, the accused was barely fit to stand trial and found to be in a condition where he could lapse into unfitness easily. The accused was therefore ordered to stand trial, but was detained at the Forensic Hospital. [ 8 ] The accused was a ward of the government, so his legal fees were funded by the Ministry of Children and Family Development until he turned 19 years of age. Once 19, prior to the preliminary inquiry, the firm applied for funding from the LSS. [ 9 ] In 2013 the firm filled out a Criminal Case Management (CCM) questionnaire for funding for the preliminary inquiry.

When the initial CCM questionnaire was completed, the firm advised that junior counsel was not needed for the preliminary inquiry, but would be required for the trial. The LSS approved 275 hours for the preliminary inquiry, preparation, and court hours all combined. The firm did not use all these hours for the preliminary inquiry. [ 10 ] On February 13, 2014, the firm submitted a further CCM “Opinion/Funding Request” for trial.

The firm requested 200 hours for the pre-trial preparation, 100 hours for daily preparation, and 150 hours for court time, based upon the issues which were identified in the form completed by the law firm. These amounts were ultimately approved. [ 11 ] Mr. Saulnier testified that in his experience, the CCM application was not typically treated as “final” as new issues invariably arise.

In this situation, counsel need only advise LSS of the new issues and the additional hours which are required. [ 12 ] On June 14, 2014, the firm advised LSS of additional issues which had arisen and the need for an additional 100 hours of funding. Of particular importance was that the Crown had advised the defence that it was leading evidence of three additional confessions, the admissibility of which is particularly material to the murder charge.

Also, on June 4, 2014, the firm advised LSS of the need for junior counsel. [ 13 ] From June 2014 to trial in December 2014, and afterwards, the firm made requests for additional funding. The firm advised LSS of the various and evolving reasons for the requests, including new evidence and legal issues which had arisen. In this regard the firm outlined the additional work which it believed was needed to be done. The firm’s funding requests were denied, with the exception of an additional 25 hours which was approved around October 2014. In a phone call around October 31, 2014, Mr. Griffiths invited Mr.

Saulnier to apply for extra fees at the conclusion of the case. [ 14 ] Mr. Saulnier admits that the request for junior counsel in the CCM application for funding for trial was ambiguous. The

section regarding junior counsel on page 9 was left blank. Nevertheless, the firm made a request for funding for junior counsel in an email sent June 4, 2014, just prior to the start of the two-week voir dire . It was Mr. Saulnier’s opinion that he could not prepare for all the new issues on short notice and it was necessary to split the work with junior counsel. [ 15 ] LSS asked the firm to set out the basis for needing junior counsel in more detail and the firm did so by letter on June 23, 2014.

Unfortunately, the firm’s request for funding for junior counsel was neither granted nor denied by LSS until after the trial had finished. In a letter dated December 10, 2014, LSS confirmed that a junior counsel was never approved for either the voir dire or the trial. LSS has conceded that it was “unfortunate” that this issue had not been addressed earlier. However, it is not in dispute that at no time did LSS authorize a junior counsel for either the voir dire or the trial.

Legislation [ 16 ] The Legal Services Society is constituted by the Legal Services Society Act , S.B.C. 2002, c. 30 (“ LSS Act ”).

Section 9 defines the objects of the LSS as follows: Objects 9(1) The objects of the society are, (

a) subject to section 10 (3), to assist individuals to resolve their legal problems and facilitate their access to justice, (

b) subject to section 10 (3), to establish and administer an effective and efficient system for providing legal aid to individuals in British Columbia, and (

c) to provide advice to the Attorney General respecting legal aid and access to justice for individuals in British Columbia.

(2) The society is to be guided by the following principles: (

a) the society is to give priority to identifying and assessing the legal needs of low-income individuals in British Columbia; (

b) the society is to consider the perspectives of both justice system service providers and the general public; (

c) the society is to coordinate legal aid with other aspects of the justice system and with community services; (

d) the society is to be flexible and innovative in the manner in which it carries out its objects. [ 17 ]

Section 11 of the LSS Act defines the methods of providing legal aid services. Sections 11(3) and (4) provide: Methods of providing legal aid services 11 . . .

(3) In determining the method, if any, by which legal aid is to be provided in any circumstance, the society must have regard to the costs involved, the needs of the person or persons involved and the society’s financial resources.

(4) The extent to which legal aid may be provided in relation to any legal problem is not to exceed the extent of legal and other services that a reasonable person of modest means would employ to resolve the problem. [ 18 ] Pursuant to s. 18 of the LSS Act , the Legal Services Society is to provide a budget to the Attorney General for the Province of British Columbia for approval. Although the Legal Services Society obtains some funding from the Law Foundation and the Notary Foundation, 90% of the Legal Services Society’s funding comes from the provincial government.

There is a Memo of Understanding between the Legal Services Society and the provincial government which is specifically authorized by s. 21 of the LSS Act . The Legal Services Society is not to run a deficit. Policy [ 19 ] In the circumstances, funding and balancing budgets is of particular importance. As a result, the policies of the Legal Services Society confer upon the Society the sole authority to determine all matters related to legal aid. [ 20 ] The Legal Services Society policy publication entitled “General Terms and Conditions” provides in part: General Terms and Conditions General 1.

LSS may modify the terms and conditions of the tariff contract at any time, and such modifications take effect upon reasonable notice. 2. A tariff lawyer’s acceptance of a representation contract is considered his or her conclusive agreement to represent a client in the case specified on the representation contract and bill LSS according to the tariff contract. 3. LSS has sole authority to determine all matters related to legal aid, including clients’ coverage and eligibility and appropriate compensation of lawyers. 4.

Tariff lawyers may ask LSS to review a decision regarding eligibility, coverage, or any other matter related to the

interpretation and administration of the tariff contract. . . . Extra legal fees and additional preparation 40. LSS may, at its discretion, pay further legal fees to tariff lawyers. In reviewing requests for extra fees and additional preparation hours, LSS will consider factors such as the actual time expended, legal complexity, nature of legal services rendered, importance of the

matter to a reasonable client of modest means, length of proceeding, amount of court time and/or LSS funding saved by the efforts of counsel, skill and efficiency of counsel, results achieved, and available tariff budget.

(1) Extra fees may be requested at the conclusion of the case and require counsel to submit a final invoice.

(2) Additional preparation may be requested if it is recognized at the outset of the case, or during the course of the contract, that substantially more hours than permitted under the applicable tariff will be required to complete the case. To request additional preparation, lawyers must submit an up-to-date invoice. . . . Junior and co-counsel 46.

LSS may authorize the appointment of junior or co-counsel, on terms LSS may determine, if the tariff lawyer submits a written request in advance to the Manager, Legal Services, indicating: (1) the exceptional circumstances of the case, including complex legal and factual issues, that make junior or co-counsel necessary; (2) the specific tasks junior or co-counsel will perform; and (3) the name and LSS vendor number of the proposed junior or co-counsel. [ 21 ] In a further policy publication entitled “Criminal Case Management (CCM)” the policies of the Legal Services Society are further defined.

The policy provides in part:

Part 2:

Definitions Criminal Case Management (CCM): a program where criminal cases set for more than 20 half days of trial are managed by the Legal Services Society in consultation with defence counsel. Budgets are set in advance and approved by LSS. The level of administration required to effectively manage the case is proportionate to the complexity and cost of the case. Types of cases include, but are not limited to: former Strategic Case Assessment Program (SCAP) cases, enhanced fees, Rowbotham, federal indemnification, or federal prosecution. . . .

Part 3: General Guidelines 1. Relations between lawyers and LSS as described in the General Terms and Conditions

section of the LSS Tariffs are contractual in nature and apply to all cases funded by LSS. This policy sets out additional terms for cases that are subject to Criminal Case Management (CCM). . . . 5. LSS shall determine: a. whether a lawyer is qualified to represent a client in a case that is subject to criminal case management, and b. the services that will be funded by LSS. . . .

Part 5: Budget Setting 1. In setting budgets and reviewing work plans, LSS shall assess the necessity and viability of the proposed defence objectives to determine whether a reasonable person of modest means would expend the funds for the work if paying a lawyer privately. Where counsel proposes procedures or defences that appear to have no reasonable prospect of success, or if successful are unlikely to advance the client’s case, LSS may refuse to fund such activities as part of the budget. . . . 5.

Where counsel believes that more than one lawyer is necessary to meet the demands of the case, the onus is on counsel to show why more than one lawyer is required. LSS determines the composition of defence teams by considering the most efficient use of resources and quality of service for the client, including the proposed role of the different lawyers. . . .

Part 6: Effective Case Management 1. Counsel shall bring skill and experience to manage cases efficiently and to work effectively with LSS and the case management process from the initial representation contract to completion of the case, including any post-payment review. Effective case management includes: a. Managing trial resources to best serve the client while recognizing the financial constraints of spending public funds. b. Complying with LSS policies and procedures including, but not limited to:

i. responding to LSS inquiries or requests in a timely manner, ii. providing information to LSS in a timely manner, iii. avoiding duplication and unproductive work, iv. cost-effectively allocating time and resources, v. actively reviewing the progress of the case with LSS case management upon request. c. Engaging in meaningful trial planning including, but not limited to: i. preparing and complying with work plans as deemed necessary by LSS, ii. reporting to LSS in a timely way, iii. regularly reviewing the work plan with LSS. d.

Complying with CCM billing requirements including, but not limited to: i. regularly billing accounts as directed by LSS and if not specified at least quarterly, ii. coordinating billing with the defence team including co-counsel and/or agent, ii. providing accurate and detailed time records. . . . 3. Counsel must comply with LSS’s regular requests for trial updates and regular communication with LSS.

If any changes occurduring the case that are not accounted for in the work plan, counsel must, where feasible, contact LSS to discuss changes beforediverting from the work plan and get prior authorization to amend the work plan. [22] If counsel disagreed with a decision made under the CCM, they may seek a review, however, any decision in this regard issubject to the director’s decision which is stated to be final and binding.

Part 9: Review provides in part: 1. Counsel may request a review of any decision made under this policy, including but not limited to, denial of a proposed budget orwork plan, revocation of hours or fees, or removal as defence counsel, by the Director within 30 days of being informed of the decision. 2. The Director may receive such representations from counsel as he or she deems appropriate. 3.

Unless the Director determines that there are valid reasons to consider late review requests, if counsel does not seek a review ofthe initial decision in writing within 30 days of the decision, the initial decision is final and binding. In considering whether to considerlate review requests, the Director may take into account operational impacts, including added administrative effort and the impact on theLSS’s financial forecasting caused by late requests. 4. After completing a review, the Director may confirm or vary the initial decision. The Director will notify counsel of his or herdecision in writing.

The Director’s decision is final and binding. Jurisdiction of the Registrar [23] Both parties agreed that the Registrar has jurisdiction pursuant to

Part 8 of the LPA. The issue of the Registrar’s jurisdictionwith respect to fees arising under a Legal Services Society contract was raised in Scarisbrick v. Legal Services Society, [1999] B.C.J.No. 2373 (S.C.), on appeal to the B.C. Court of Appeal in Scarisbrick v. Legal Services Society (2003), 2003 BCCA 2 , 9B.C.L.R. (4th) 219, and in Cannon v. Legal Services Society, 2006 BCSC 429. [24] In Scarisbrick v. Legal Services Society, [1999] B.C.J.

No. 2373, the Court highlighted the special nature of the role of the LSS.At paras. 16 and 17 the Court states: 16 I am uncomfortable dealing with the matter under s. 79 of the Legal Profession Act. On the surface, it is a contractual issuebetween the parties. However, with the concession by L.S.S. before the Master and before me, that it may be dealt with by way of such areview, I will attempt to do so. 17 Policy reasons explain my reluctance. Legal Services has a statutory mandate to provide legal services in certain circumstances. Itprovides a tariff for those who undertake to provide legal services.

If that tariff were subject to s. 79 review, the result would be mostunfortunate. A lawyer entering into such a retainer agreement should not be entitled to seek higher fees on the basis of the factorsenumerated in s. 79(2). Otherwise, planning and budgeting by L.S.S. would become a complex task. [25] The B.C.

Court of Appeal acknowledged the “special character” of an LSS contract, as it was so described, in Scarisbrick v.Legal Services Society (2003), 2003 BCCA 2 , 9 B.C.L.R. (4th) 219 where the Court states at paras. 10 through 12: [10] The discomfort expressed by the chambers judge at having to deal with the matter under s. 79 echoed the comment of theRegistrar, who said, “Somewhat surprisingly, both parties submit that the registrar does have jurisdiction under the Act to review thisbill.” When this appeal from the decision of the chambers judge first came before a panel of this Court, differently constituted, itadjourned the hearing with the request that counsel make submissions on the issue whether

Part 10 of the Legal Profession Act applies to

dealings between the Society and lawyers retained by it. Pursuant to that request, counsel for the Society delivered a written submissionof some considerable length. It is directed largely at the question whether the Registrar has jurisdiction to review a bill where there is anagreement between the solicitor and the client. He analyzed at some length the reasons in Doig v. Davidson Muir (1998), (BC CA), 48 B.C.L.R. (3d) 53 (C.A.) and Coad v. Rizk (1999), (BC SC), 68 B.C.L.R. (3d) 340 (S.C.) whichconsider that question.

Those cases, of course, do not bear directly upon the contract in question here which, in certain respects, is of aspecial character. The submission of the Society, however, is that the agreement between it and the lawyer stands “on the same footingas is any other agreement, written or unwritten, between a lawyer and a person who agrees to pay for legal services.” [11] Understandably enough, neither Mr. Scarisbrick, who appeared on his own behalf, nor Mr. Donaldson, Q.C., who appeared forthe intervenor, took any issue with the Society’s position on jurisdiction.

I would therefore dispose of that issue by accepting, as did theRegistrar and the chambers judge, the concession of the Society. [12] The Society also concedes that this case involves a “collapse” within Category IV of the Criminal Tariff and that the chambersjudge did not err in principle in taking into account s. 79(2) of the Legal Profession Act. In light of those concessions, there is no basis forholding that the chambers judge fell into error in exercising as he did the broad jurisdiction conferred on him by s. 81(1).

It follows, inmy view, that nothing in these reasons should be taken as a decision by this Court on the issue of jurisdiction or as to “collapse” or theapplicability of s. 79(2). [26] In Cannon v. Legal Services Society, 2006 BCSC 429, Registrar Blok, as he then was, addressed the special character of a legalservices contract and request for extra legal fees. The Court found that the Registrar had jurisdiction to review bills submitted to theLegal Services Society. At paras. 33 through 35 the Court states: [33] Counsel for Mr.

Cannon stated that the question whether the solicitor had been fully paid under the terms of the agreement wasvery much in issue. Had the Legislature not wanted LSS bills to be reviewed by the registrar it would have been a simple enough matterto have ousted jurisdiction by way of a provision of the Legal Services Society Act, R.S.B.C. 1996, c. 256. [34] It was, and is, my conclusion that a registrar has jurisdiction to conduct a review in order to ascertain whether the solicitor hasbeen properly paid under the terms of a fee agreement: Doig v.

Davidson Muir (1998), (BC CA), 48 B.C.L.R. (3d) 53,158 D.L.R. (4th) 1, [1999] 9 W.W.R. 99, 20 C.P.C. (4th) 26 (C.A.); Coad v. Rizk (1999), (BC SC), 68 B.C.L.R. (3d)340 (S.C.).

Since it is not agreed that the solicitor has been fully paid under the terms of the fee agreement then it follows that I havejurisdiction to determine that issue. [35] In my view the question in this case is not one of jurisdiction, as such, but rather is a question of the scope of the review. [27] After considering the extent of the Registrar’s jurisdiction on a review of an LSS contract, the court concluded that a decisionby the LSS in relation to fees ought not to be disturbed unless it can be shown that the decision was patently unreasonable.

Thisconclusion follows the analysis at paras. 55 though 60 where the Court states: [55] The starting point, then, is the contract and is not the “reconsideration of all the evidence and the application of judgment”through a “registrar’s process”, which was, in essence, the approach urged by the solicitor in this case. [56] But a consideration of the fees payable pursuant to the contract raises a further issue: what approach is to be taken on thediscretionary payment provision? As Southin J.A. indicated in Doig v.

Davidson Muir, supra at para. 23, in cases involving a feecontract one must look to see if the client has been billed (or conversely, that the solicitor has been paid) in accordance with the contract.It is at least arguable that the solicitor would not have been paid in accordance with the contract if LSS did not properly exercise itsdiscretion in considering a request for extra fees under this provision. Mr.

Cannon argued that the various circumstances of the case,together with the application of s. 71(5) of the LPA, meant that very little deference ought to be accorded to the exercise of discretion byLSS and that I might freely substitute my own discretion in the matter.

LSS argued that I should interfere only if the exercise ofdiscretion was shown to be “clearly wrong”. [57] Although there are many cases dealing with the degrees of deference to be accorded to exercises of discretion by inferiorcourts, administrative tribunals and statutory decision-makers, I am not persuaded that these offer anything more than the most generalguidance.

Neither party provided any authority dealing with the approach to be taken where a discretion to make a payment is granted bythe terms of a contract. [58] I consider it to be an important fact that, here, a party has entered into a contract whereby he has ceded to another party adiscretionary power to make (or not make) a payment. A choice has been made to enter into the contract. Parties dealing withadministrative tribunals have no choice but to subject themselves to a tribunal’s discretionary powers.

The voluntary aspect in this casemilitates strongly against interference with the exercise of discretion by LSS. [59] The following factors also suggest that substantial deference ought to be given to the exercise of discretion by LSS in dealingwith requests for extra fees: (

a) clause 3 of the LSS General Terms and Conditions, which states: 3. LSS has sole authority to determine all matters related to legal aid, including clients’ coverage and eligibility and appropriatecompensation of lawyers. (

b) the purpose of LSS and the legal aid scheme as a whole, and the need for LSS to reasonably control the allocation of its scarceresources; (

c) the existence of a practice for the review of extra fees requests, whereby requests are reviewed by outside counsel, whichprovides a check against possible unfairness in the decision-making process.

[60] These factors persuade me that a decision by LSS on an extra fees request ought not to be disturbed unless it is shown to be patently unreasonable. The evidence in this case fell far short of establishing this. Even on a lesser standard of review, reasonableness simpliciter , I am not persuaded that the solicitor made out a case for interfering with the exercise of discretion by LSS. Having regard to the terms of the contract (particularly those restricting billings for certain activities) and the circumstances of the case generally I am unable to conclude that the LSS decision on Mr.

Cannon’s extra fees request was unreasonable. Any lesser standard of review than reasonableness simpliciter would mean that I would be effectively substituting my discretion for that of LSS, an approach which I consider to be incorrect. [ 28 ] The term “patently unreasonable” was the subject matter of two recent Supreme Court of Canada decisions. A patently unreasonable finding of law was defined by the Supreme Court of Canada in West Fraser Mills Limited v. British Columbia (Workers’ Compensation Appeal Tribunal) , 2018 SCC 22 , wherein the Court states: [28] A legal determination like the

interpretation of a statute will be patently unreasonable where it “almost border[s] on the absurd”: Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92 , 2004 SCC 23 , [2004] 1 S.C.R. 609, at para. 18 . In the workers’ compensation context in British Columbia, a patently unreasonable decision is one that is “openly, clearly, evidently unreasonable”: Speckling v. British Columbia (Workers’ Compensation Board) , 2005 BCCA 80 , at para. 33 ; Vandale v.

British Columbia (Workers’ Compensation Appeal Tribunal) , 2013 BCCA 391 , 342 B.C.A.C. 112, at para. 42 (emphasis deleted). [29] By stipulating the standard of patent unreasonableness, the Legislature has indicated that courts should accord the utmost deference to the Tribunal’s

interpretation of the legislation and its decision. [ 29 ] A patently unreasonable finding of fact was defined by the Supreme Court of Canada in British Columbia (Workers’ Compensation Appeal Tribunal) v.

Fraser Health Authority , 2016 SCC 25 , wherein the Court states: [29] As already noted, and as the parties agree, the applicable standard of review requires curial deference, absent a finding of fact or law that is patently unreasonable ( Administrative Tribunals Act , s. 58(2)(a)). [30] The Tribunal’s conclusion that the workers’ breast cancers were occupational diseases caused by the nature of their employment was a finding on a question of fact ( Ediger v. Johnston , 2013 SCC 18 , [2013] 2 S.C.R. 98, at para. 29 ).

That finding is therefore entitled to deference unless Fraser Health demonstrates that it is patently unreasonable - that is, that “the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact” ( Toronto (City) Board of Education , at para. 45). Because a court must defer where there is evidence capable of supporting (as opposed to conclusively demonstrating ) a finding of fact, patent unreasonableness is not established where the reviewing court considers the evidence merely to be insufficient ( Speckling v.

Workers’ Compensation Board (B.C.) , 2005 BCCA 80 , 209 B.C.A.C. 86, at para. 37 ). Simply put, this standard precludes curial re-weighing of evidence, or rejecting the inferences drawn by the fact-finder from that evidence, or substituting the reviewing court’s preferred inferences for those drawn by the fact-finder. The Application of the Patently Unreasonable Standard [ 30 ] The issue becomes whether the evidence, viewed reasonably, is incapable of supporting the Legal Services Society’s decision or whether its decision borders on the absurd or is openly, clearly, evidentially unreasonable.

In order to address these issues, in my view, it is worthwhile to apply the matters to be considered by a Registrar on a review under the LPA .

Section 71 of the LPA provides: Matters to be considered by the registrar on a review 71(1) This

section applies to a review or examination under section 68 (7), 70 , 77 (3), 78 (2) or 79 (3).

(2) Subject to subsections (4) and (5), the registrar must allow fees, charges and disbursements for the following services: (

a) those reasonably necessary and proper to conduct the proceeding or business to which they relate; (

b) those authorized by the client or subsequently approved by the client, whether or not the services were reasonably necessary and proper to conduct the proceeding or business to which they relate.

(3) Subject to subsections (4) and (5), the registrar may allow fees, charges and disbursements for the following services, even if unnecessary for the proper conduct of the proceeding or business to which they relate: (

a) those reasonably intended by the lawyer to advance the interests of the client at the time the services were provided; (

b) those requested by the client after being informed by the lawyer that they were unnecessary and not likely to advance the interests of the client.

(4) At a review of a lawyer’s bill, the registrar must consider all of the circumstances, including (

a) the complexity, difficulty or novelty of the issues involved, (

b) the skill, specialized knowledge and responsibility required of the lawyer, (

c) the lawyer’s character and standing in the profession, (

d) the amount involved, (

e) the time reasonably spent,

(

f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable, (

g) the importance of the matter to the client whose bill is being reviewed, and (

h) the result obtained.

(5) The discretion of the registrar under subsection (4) is not limited by the terms of an agreement between the lawyer and the lawyer’s client. [ 31 ] Section 71(2) provides that subject to subsections (4) and (5) the Registrar must allow fees charged and disbursements which were “reasonably necessary and proper to the conduct of the proceeding or business to which they relate”. However, “necessary and proper” is never assessed irrespective of the terms of the retainer.

In the context of an LSS contract, it is arguable that fees and disbursements are neither necessary nor proper unless they have been authorized. [ 32 ] When agreeing to an LSS contract, the lawyer agrees to be bound by the budgets of the LSS which are set in advance, and approved on an ongoing basis. This is the special nature of the contract alluded to by both the Supreme Court and Court of Appeal in Scarisbrick , supra .

Although s. 71(5) of the LPA provides that the Registrar’s discretion under s. 71(4) is not limited by the terms of an agreement between the lawyer and the lawyer’s client, in the context of a case such as this, the underlying contract is of significant importance in the context of a patently unreasonable analysis. Application of the s. 71(4) Factors (

a) The complexity, difficulty or novelty of the issues involved (

b) The skill, specialized knowledge and responsibility required of the lawyer [ 33 ] The accused was extremely low functioning, making trial strategy and obtaining instructions difficult. The accused had been unfit to stand trial for years, he was illiterate, and had a borderline IQ. The defence had to apply for, then analyze, thousands of pages of third-party records relating to the accused’s history with the Ministry, the victim, and his family. The Crown sought to adduce evidence of recorded police statements given by the accused’s mother before she died.

The Crown also sought to lead multiple confessions of the accused to a jailhouse informant; a social worker; a psychiatric nurse; and at a review board hearing. The Crown also sought to lead bad character evidence concerning the accused showing a history of violence with respect to the victim. [ 34 ] New disclosure continued to be made up to and during trial. The Crown had two experienced full-time prosecutors working throughout the case. On October 21, 2014, there is a transcript of a voir dire wherein both the trial judge and the Crown prosecutor acknowledged the complexity of the case. Mr.

Saulnier was successful in excluding large parts of the Crown’s case. (

c) The lawyer’s character and standing in the profession [ 35 ] The lawyer is in good standing with the Law Society. He does not advertise and relies upon referrals for all his work. The lawyer is currently the vice chair of the CBA Criminal Subsection. The lawyer was called to the bar in 2005 and has 13 years’ experience involving criminal matters. Mr. Saulnier has experience with murder cases, and acted as junior counsel during the Pickton trial. (

d) Amount involved [ 36 ] In the present case the amount involved was not monetary. Rather, it concerned a potential life sentence. The stakes were at their highest. (

e) Time reasonably spent [ 37 ] The law firm put in a total of 716.7 hours on the file which were paid from early 2013, into early 2015. The total unpaid hours amount to 234.3 which includes the time of junior counsel. [ 38 ] There was no suggestion that the hours which Mr. Saulnier and his junior invested in the accused’s defence were not reasonably necessary or proper. The LSS recognizes that the primary professional obligation is between solicitor and client and that trial preparation is the domain of the lawyer.

However, the LSS takes the position that pretrial preparation must be done with the knowledge of the budgets given to the lawyer and the need for pre-approval for any time that may exceed the approved budget. [ 39 ] The LSS submits that the amount of preparation time approved and paid was more than reasonable and proportionate.

The LSS submits it was generous when measured against the statutory provision of s. 11(4) of the Legal Services Society Act concerning what “a reasonable person of modest means would employ to resolve the problem”. [ 40 ] In a decision dated April 22, 2015 the LSS explained its reasons for not granting additional fees. The decision states in part: I have reviewed this case with interest and in detail. I was impressed with your written submissions to the Court. I have also read the transcript of the oral reasons for judgment and congratulate you on a job well done.

This was a 4 week Youth murder trial in which the Crown’s case was based entirely on the statement of a jail house informant which was ultimately found to be unreliable. During the trial, there were evidentiary issues which necessitated written submissions and rulings by the Court, namely the admissibility of the statements of: a deceased witness; a jail house informant; and the accused, himself, while at a Review Board hearing. Throughout the proceedings you have corresponded with LSS requesting increases to your budget.

On one occasion your budget was increased by 25 hours on Review to account for unanticipated evidence. You had also requested authorization for junior counsel in these proceedings, which was denied. The trial is now complete and you are seeking a combined further 249.3 hours for yourself and a junior counsel. My very respectful opinion remains the same as that indicated in my letters to you dated June 10, 2014 and July 14, 2014. Bearing in mind the type of case this was, its seriousness and inherent complexities, it remains my view the case has been funded to capacity and in accordance with LSS Tariff and Policy.

The total fees paid in this case, not including disbursements, have been $64,964.49. Anything beyond that would certainly be beyond the ‘reasonable client of modest means’ for a four week Trial of this nature. Setting budgets in advance of trials gives counsel the opportunity to choose whether they can complete the case within the allotted budget. Budgets are set in accordance with the factors set out in the

Part 5 of the CCM policies. Some adjustments can be made after a budget has been set where unanticipated and significant matters arise during the course of the trial. The CCM policies require that counsel manage trial resources to best serve the client while recognizing the financial constraints of spending public funds. In this case, as I have said in earlier correspondence, a significant budget was authorized for both the prelim, and the trial in April of 2013 and February, 2014 respectively.

I have consistently expressed LSS’s view that, given the complexities of this case, its length and nature, the budget is appropriate and in accordance with LSS standards. Given all the foregoing factors, I respectfully decline to reconsider my decision. You may apply for a review of my decision. . . [ 41 ] The law firm sought a review of the decision. By letter dated July 16, 2015, the prior decision was upheld and remained unchanged. The July 16, 2015 decision provides in part: I reviewed the history of this file and the budgets provided. I conclude that the budgets were appropriate to the needs of the case.

I do not authorize extra fees. I recognize that this was a case that presented some particular challenges. The case was vigorously prosecuted despite some serious limitations in the Crown’s case. I have no doubt that media attention contributed to the Crown’s late position to proffer questionable statements made at the Review Board. The Crown also sought to rely on jail house informant evidence and self-serving statements by a dead witness. I do not question the caliber of the submissions you made regarding these issues. Ultimately your submissions kept the issue focused on the weaknesses of the Crown’s case.

This all contributed to a successful outcome. The concern I have is that the amount of time you spent to accomplish this is disproportionate to what LSS authorizes in cases of similar complexity. You have been advised throughout what budgets were authorized. I reviewed these budgets in some detail in October 2014. I approved some extra hours to reflect the addition of the Review Board evidence and provided some flexibility in how you could draw on your trial preparation time. Inherent in my review at that time was a limit to what we believed needed to be spent on the case.

When additional hours were authorized in October we had authorized just under 600 hours of preparation (475 hours general prep plus 120 hours trial prep) in addition to actual court attendance. At that time I determined this to be a realistic budget for the case. Your recent correspondence does not show a material or unanticipated change in the case since I last reviewed this. You now seek an additional 250 hours (rounding up slightly) for yourself and an associate from your office who was not approved to work on the file despite your requests for a junior.

I have to conclude that the risk of losing on a weak Crown case lead you to invest more time than we had authorized. While I am sympathetic to the pressure you face in these circumstances I am bound by the criteria we apply in setting criminal case budgets. To do otherwise in these circumstances would unduly erode the foundations of setting budgets and case management. I have also considered the comments of the Mr. Justice Silverman. Undoubtedly he also appreciated the benefit of your careful and thorough submissions. However, Mr. Justice Silverman is not responsible for managing the legal aid tariff.

Out of respect for his comments and your hard work in this case I have taken a fresh look at the global budgets provided in this case. I have considered the factors in paragraph 41 of the General Terms and Conditions of the LSS Tariffs.

Unfortunately, despite the Judge’s comments and your undeniable commitment to the case, I conclude that extra fees are not warranted under our policy. [ 42 ] The LSS submits that the accused’s defence was funded at a ratio of 7.2 hours of prep time for every hour of court time, and if the request for additional hours was paid, that the ratio would increase to 11.3 hours of prep time for each hour of court time. [ 43 ] During the course of the litigation the law firm kept LSS regularly updated and provided with time estimates for both preparation and court time. Each request for additional time was addressed.

At times, they were allowed, varied, or refused. With the exception of the request for a junior council, I find the requests were routinely responded to in a timely fashion. [ 44 ] The law firm submits that unlike the situation in Cannon , supra , the lawyers did not agree to a standard LSS tariff or a block rate.

Rather, the law firm agreed to act on an hourly basis, for roughly a third of the lawyers’ normal hourly rate, on the understanding that the law firm would be paid for all the hours worked. [ 45 ] The law firm submits that unlike Cannon, supra , the law firm is not trying to get paid higher fees than that fixed by contract, but rather is seeking to be paid at the rate fixed by the contract.

Further, the law firm submits that unlike the situation in Cannon , supra , the lawyer did not have the option of withdrawing from the contract. [ 46 ] Criminal defence counsel cannot withdraw, at will, due to non-payment of legal fees as per R. v. Cunningham , 2010 SCC 10

, [2010] 1 SCR 331. If there is insufficient time for another lawyer to take on the case and prepare, the lawyer is on the hook tosee the matter through to a conclusion. This principle is now codified in the Code of Professional Conduct for British Columbia atparas. 3.7-3 to 3.7-6. [47] By the fall of 2014, the law firm could not withdraw. (

f) If there has been an agreement that sets a fee rate that is based on an amountper unit of time spent by the lawyer, whether the rate was reasonable [48] There is no issue with respect to the hourly rate which was agreed to. (

g) The importance of the matter to the client whose bill is being reviewed [49] The accused was facing a potential life sentence for the murder of his 20-month-old nephew. At the time of the alleged offencehe was 15 years old, severely intellectually compromised by fetal alcohol syndrome, a ward of the Ministry of Child and FamilyDevelopment; detained at a forensic hospital because of his fragile state; and aboriginal. The accused was an individual identified inFederal Commissions and by the Supreme Court of Canada in R. v.

Gladue, (SCC), [1999] 1 SCR 688 as beinghistorically vulnerable, disadvantaged, and subject to historical discrimination. Given the accused’s risk factors, had he been convicted,he may well have died in jail. [50] From the client’s perspective, it is difficult to imagine a matter more important to him. (

h) The result obtained [51] The accused was acquitted. From the client’s perspective this was the best result achievable. The case was in a constant state offlux requiring the lawyers to adjust their strategies accordingly. The law firm achieved a truly remarkable result to the benefit of theclient, under extremely difficult circumstances. (

i) Other circumstances [52] The Registrar is to consider all the circumstances, including those listed in s. 71(4) of the LPA. Other relevant circumstances inthis case include the Legal Services Society Act, the Legal Service Services Society’s policies, and the resultant contract between theLegal Services Society and the law firm. [53] The law firm entered into a contractual relationship with the LSS to provide legal services for the benefit of the accused. Undercross-examination, Mr.

Saulnier agreed that he was aware of, and bound by those policies. [54] The contract was never intended or meant to be one where the law firm would be paid, as a matter of right, an hour’s rate for anhour worked.

Superimposed on the contract were numerous provisos including: • the LSS would set budgets for preparation and court time with a view to whether a reasonable person of modest means wouldexpend the funds for the work if paying a lawyer privately; • the LSS would have the sole authority to determine all matters related to legal aid including the appropriate compensation of thelawyers; • if the law firm wanted to be paid for more hours than approved and budgeted, they would need the pre-approval of the LSS; • if the law firm wanted a budget for a junior lawyer, that required the prior approval of the LSS; • any decision of the LSS concerning budgets, fees, and a junior council could be reviewed, but ultimately the LSS would have thefinal decision which would be binding. [55] From the outset, there was always the risk that the LSS would not approve the budget, additional hours, or the retaining of ajunior lawyer.

The law firm took the case knowing its background, and was aware in accepting the terms and conditions inherent inproviding legal services within the context of an LSS funded matter could result in a budget not being approved. Further, as the matterprogressed towards trial, the fact that the lawyer would be unable to withdraw as counsel would not have been unexpected given thatMr.

Saulnier was a seasoned and experienced criminal defence counsel. [56] When the law firm undertook the contract it was known that fees would be constrained by budgets set by the LSS, and that thelawyer may find himself in the unenviable situation where he could not withdraw from the case, even though he may not be paid for allthe hours worked. Disposition [57] The LSS provided an ongoing explanation for the budgets provided and the fees allowed. With the exception of the law firm’srequest for a junior lawyer, the LSS replied to each request for funding in a timely manner.

Finally, the LSS detailed their reasons for notproviding further fees in their letters of April 22, 2015 and in their reconsideration decision of July 16, 2015.

[ 58 ] In the LSS’s view, the approved budget was consistent with the complexities of the case, its length and nature, and was consistent with LSS standards.

This was unquestionably a decision at the heart of the LSS’s jurisdiction. [ 59 ] As stated in Cannon , supra , at para. 60 , it is not the role of the registrar to substitute their discretion for that of the LSS, unless it can be demonstrated that the decision of the LSS was patently unreasonable. [ 60 ] In view of the LSS’s mandate and obligations, and the evidence on this review, I cannot characterize the LSS’s decision concerning fees to be “almost bordering on the absurd” or “openly, clearly, evidently unreasonable” as per West Fraser Mills , supra , at para. 28, nor can I say that the evidence is “incapable of supporting the findings of fact” of the LSS, as per B.C.

Workers Compensation Appeal Tribunal v. Fraser Health Authority , supra , at para. 30. [ 61 ] The law firm’s claim for additional fees is dismissed. [ 62 ] On the issue of costs, the general rule is that an administrative agency or tribunal will neither be entitled to, nor be ordered to pay costs unless there was misconduct or lack of procedural fairness on the part of the administrative agency: see Lang v. B.C. [Superintendent of Motor Vehicle s] 2005 BCCA 244 . Accordingly, each party will bear their own costs. “District Registrar Nielsen”