Adebisi v Dentons Canada LLP, 2023 ABKB 452

Court of King’s Bench of Alberta Citation: Adebisi v Dentons Canada LLP, 2023 ABKB 452 Date: 20230731 Docket: 2103 13357 Registry: Edmonton Between: Dr. Omoniyi Adebisi Appellant - and - Dentons Canada LLP Respondent _______________________________________________________ Decision of the Honourable Justice S.E. Richardson Appeal from the decision of Review Officer dated March 7, 2022 _______________________________________________________ Introduction [ 1 ] The Appellant appeals the decision of the review officer in relation to a legal bill presented by the Respondent.

The Appellant represented himself before the review officer. After two full days of evidence and submissions, the review officer reduced the Respondent’s legal bill by $3,300 and confirmed the remainder of the bill. [ 2 ] As a result of the claimed errors by the review officer, the Appellant argues that the decision “be completely set aside, and/or varied” with no suggestion as to a quantifiable variation. [ 3 ] The Respondent argues that the review officer made no errors (absent a calculation error noted below) and the appeal should be dismissed.

The Respondent further argues that as a result of the failure of the Appellant to follow the Rules , and failure to correct deficiencies in the record, costs on a solicitor/client basis is warranted. [ 4 ] For the reasons set out below, the decision of the review officer is confirmed, but for the calculation error, and the appeal is dismissed. Enhanced costs are awarded on this appeal in the amount of $35,000.

Background [ 5 ] The Appellant is a medical doctor who split his medical practice between Alberta and the United States. In Alberta he practiced in Wetaskiwin. In 2018, he launched four separate complaints before the Alberta Human Rights Commission (AHRC): against individual physicians, against Alberta Health Services (AHS) and against the Wetaskiwin Primary Care Network (WPCN). He alleged personal discrimination, discrimination in recruitment and compensation issues. [ 6 ] In support of these complaints, he retained the services of his first counsel, Ms. Haraba.

She provided an opinion that the AHRC had the jurisdiction to deal with his complaints. After she retired, he managed the litigation himself. Shortly before the AHRC was to consider his complaints, he learned that the AHRC would not be providing him with a lawyer. He had been under the mistaken understanding that the AHRC would provide him with counsel. He sought an adjournment and retained Ms. Vigneaux, his second counsel. [ 7 ] As part of her retainer, Ms. Vigneaux prepared a legal opinion for the Appellant wherein she concluded that the AHRC did not have the jurisdiction to hear his complaints.

Following this confidential opinion, the Appellant, with the assistance of Ms. Vigneaux, entered into conciliation or mediation with the parties to his disputes. Ms. Vigneaux discovered a conflict on the file at this stage and the Appellant was referred to Ms. Carter at Dentons to assume carriage of his matters. [ 8 ] After meeting with Ms. Carter, the Appellant entered into a retainer agreement with the Respondent on April 27, 2021.

The retainer agreement stipulated the hourly rate, the scope of the retainer, and, importantly, that the retainer agreement itself, as signed, contained the full and entire basis of the agreement between the parties. [ 9 ] When the Respondent was retained, more than 2 years of documents had to be reviewed in order to properly advise the Appellant. There was an urgency to this document review as hearings had already been set in the near term. [ 10 ] The Respondent was provided the client file from Ms. Vigneaux.

This included her legal opinion that the AHRC did not have the jurisdiction to entertain the Appellant’s complaints. After reviewing this opinion and having regard to the fact that the complaint process remained ongoing, the Respondent prepared their own opinion on this legal issue. They came to the same conclusion as Ms. Vigneaux. [ 11 ] Concurrent with the preparation of this opinion, the Respondent was preparing to represent the Appellant in the conciliation process to resolve his claims outside the AHRC process.

The Appellant instructed the Respondent that he wanted to maintain his complaints with the AHRC regardless of any success in the conciliation process. [ 12 ] Upon signing the retainer agreement, the Appellant made a $9,000 payment toward his retainer. On May 31, 2021, the Respondent submitted a statement of account to the Appellant for $18,000. On July 30, 2021, at the conclusion of the solicitor client relationship, the Respondent submitted a statement of account for a total of $82,948.99 (inclusive of GST and disbursements).

But for the initial $9,000 deposit, the Appellant never made any effort to contact the Respondent or address his outstanding account. As a result, on September 24, 2021, the Respondent filed an Appointment for Review of Retainer Agreement/Lawyer’s Charges and the hearing before the review officer was scheduled. The Review Officer’s Decision [ 13 ] The hearing before the review officer occupied two full days over four calendar days: October 14, 2021, November 22, 2021, January 24, 2022 and March 7, 2022. The Appellant represented himself throughout this process.

The review officer noted on several occasions that the hearing was much longer than usual hearings, and the volume of information he received and reviewed was much greater than for usual hearings. [ 14 ] On October 14, 2021, the Appellant requested and was granted an adjournment because he was working in the United States. He appeared at that hearing date via cell phone and he requested an adjournment so that he was not incurring long distance charges. As well, the cell phone reception was not good. His adjourned application was granted. [ 15 ] On November 22, 2021, the hearing began.

The review officer heard from both the Appellant and counsel for the Respondent. He distilled the issues on that date for consideration as follows: did Ms. Carter tell the Appellant before she was retained and before she reviewed any material, that the AHRC did have the jurisdiction to hear his complaints? And did he only retain Ms. Carter for an opinion, or for conciliations as well? The review officer invited further information, submissions and evidence from the Appellant in advance of the next hearing date. [ 16 ] On January 24, 2022, the review officer heard from the parties again.

On this date, he distilled the issues as follows: the reasonableness of the fees for the amount and effort of the legal opinion, the lack of information provided to the Appellant about the costs to prepare the opinion letter and the reasonableness of the fees more broadly. He also concluded that the Appellant had not demonstrated on a balance of probabilities that Ms. Carter gave him a verbal opinion before any retainer agreement was signed, and before the file was transferred by Ms. Vigneaux.

The review officer also concluded that the evidence supported a finding that the Appellant had retained the Respondent to act for him in the whole of his litigation; the AHRC complaints and the conciliation process. [ 17 ] The outstanding issues were reserved for March 7, 2022. The review officer found that the ten hours Mr. Konopka spent on the opinion letter as to the jurisdiction of the AHRC over the predicate dispute “was excessive” given the opinion of previous counsel on this issue, and the absence of any discussion with the Appellant that “this is going to cost you a fair amount of money to do this”.

The review officer reduced that part of the bill by 50% and rounded up the $1,625 discount in fees to $1,700, favouring the Appellant. [ 18 ] He also reduced the total bill by a further $1,600 to account for the cost management factor. Specifically, he applied this

reduction as a penalty against the Respondent because they denied the Appellant the ability to have the information necessary forcontrolling the costs of the legal work provided. He also noted that the purpose of a cost management reduction is more of a penalty tothe law firm because of the lack of ability on the client’s part of have had the information necessary for controlling costs. [19] The review officer’s decision was an oral decision, and it is lengthy.

It appears that the review officer inadvertently made acalculation error when he applied these two reductions to the Respondent’s final bill, as he calculated the $1,700 reduction and the$1,600 reduction to a total of $2,300. The actual sum should have been $3,300. No one caught this inadvertent calculation error at thetime of the decision. This error will be corrected.

Grounds of Appeal [20] The Appellant argues that the review officer erred in the following ways: by exceeding his jurisdiction by interpreting theretainer agreement instead of simply applying it, by concluding that that the fees charged by the Respondent were reasonable, that thehearing lacked procedural fairness and that the review officer erred by not sufficiently considering the evidence and/or mischaracterizingevidence and by ignoring representations made by the Appellant. [21] Specifically, he argues the review officer’s findings on the credibility of Ms. Carter resulted in an

interpretation of the retaineragreement that was outside the jurisdiction of the review officer, that the fees are unreasonable because previous counsel, Ms. Vigneaux,had already prepared an opinion on the issue of the jurisdiction of the AHRC and the Respondent had that opinion when the Appellantretained them.

Accordingly, any fees charged for the Respondent to undertake the legal work to prepare their own opinion on the sameissue were duplicative and thereby unreasonable. [22] On the claim of lack of procedural fairness, the Appellant asserts that the “indiscernible” notations in the transcript of thehearing yield to the conclusion that the review officer did not hear that portion, that he ignored that portion or that he mischaracterizedthat portion of the hearing. He further asserts that the review officer “could have easily invited Ms.

Vigneaux to come in and clarify heropinion on the jurisdiction of the AHRC” over the predicate dispute/complaint. Finally, the Appellant asserts that he was deniedprocedural fairness because the review officer “was not prepared to believe the Appellant’s testimony regarding what transpired betweenhim and Ms.

Carter prior to signing the Retainer” and that the review officer “refus[ed] to allow him to question the Respondent”. [23] The Respondent argues that the review officer did not interpret the retainer agreement and so did not exceed his jurisdiction,that the hearing was procedurally fair and ultimately, that the fees charged were reasonable. Standard of Review [24] The standard of review applied to an appeal of a review officer’s decision under Rule 10.26(1) is deferential, given the reviewofficer’s specialized knowledge and experience in assessing the reasonableness of lawyer’s accounts.

As the person hearing theevidence and examining the parties’ materials, the review officer is in the best position to assess and weigh evidence: Rocks v IanSavage Professional Corporation, 2015 ABCA 77 at para 15, leave denied [2015] SCCA No 204, citing McLennan Ross v KeenIndustries Ltd (No 2) (1988), 1988 ABCA 224 , 86 AR 311 (CA). [25] A review officer may err by: failing to consider the evidence and or representations; making a finding of fact that is clearly inerror; proceeding on an erroneous principle; failing to apply a required principle; awarding an amount so high or low as to betray an errorof principle; incorrectly determining a true question of jurisdiction or failing to provide a hearing that is procedurally fair: Rath & Co vSweetgrass First Nation, 2014 ABCA 426, leave denied [2014 SCCA No 67, Nichols v Field Law, 2018 ABQB 238, CIBC MortgagesInc v Sicoli, 2013 ABQB 451, Repchuk v Silverberg, 2013 ABQB 305, Fraser Milner Casgrain LLP v Kristof Financial Inc, 2012ABQB 359. [26] Recently the Alberta Court of Appeal held that the standard of review from Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65, applied to an appeal of a review officer’s decision such that questions of law are reviewed on acorrectness standard and questions of fact are determined on the palpable and overriding error standard: Tallcree First Nation v Rath &Co, 2020 ABQB 592, aff’d 2022 ABCA 174, at para 9. [27] Issues of jurisdiction and procedural fairness are questions of law and attract a correctness standard of review.

The assessmentof the reasonableness of a lawyer’s fees attracts a deferential standard of review and the review officer’s decision on this point can onlybe interfered with where the record betrays an erroneous finding of fact and where the correct finding of fact would have affected thereview officer’s decision on reasonableness. [28] On appeal, a Court may interfere with the review officer’s decision if any of these errors are clearly made on the record of thehearing.

Where interference is so justified, the Court on appeal may reassess the account or return it for a new assessment, among otherremedies: McLennan Ross, at para 6, Rule 10.27(1). Issues 1. Did the review officer exceed his jurisdiction by interpreting the retainer agreement and making findings of credibility? 2. Was the Appellant afforded procedural fairness in the hearing before the review officer? 3. Did the review officer err in finding that the fees charged by the Respondent were reasonable?

4. What costs award should flow from this decision? Did the Review Officer exceed his jurisdiction? [ 29 ] The Appellant argues that the review officer exceeded his jurisdiction in two intersecting respects: that he interpreted the terms of the retainer agreement and that he made findings of credibility. [ 30 ] The Respondent argues that the review officer limited his consideration of the retainer agreement to the scope of the agreement and thus did not exceed his jurisdiction.

Further, they argue that the review officer did not make any credibility findings, instead he merely applied the proper balance of probabilities threshold to the claims made by the Appellant in relation to the dispute about a conversation between the Appellant and Ms. Carter. [ 31 ] Rule 10.18(1)(

a) requires that “a review officer must refer any question arising about the terms of a retainer agreement to the Court for a decision and direction”. The terms of a retainer agreement cannot be decided by the review officer, and this includes questions of

interpretation, implied retainer agreements and oral agreements: Sweetgrass First Nation v Rath & Co , 2013 ABCA 165 . [ 32 ] The Appellant argues that the “express terms of the retainer agreement are not really disputed, what is disputed however, are the representations (if any) made to the Appellant prior to the signing of the Retainer”. The Appellant argues that before the retainer agreement was entered into, Ms. Carter expressed an opinion to the effect that the AHRC did have the jurisdiction over the complaints initiated by the Appellant.

He argues that it was this verbal representation, communicated before the retainer agreement was entered into that induced him to retain the Respondent. [ 33 ] The Appellant’s claim that Ms. Carter provided a legal opinion before the retainer agreement was signed was accompanied by inflammatory language, suggesting fraud and extortion on the part of Ms. Carter. It is language that a member of the Law Society of Alberta would likely have been subject to sanction if used against another counsel.

The review officer cautioned against the use of such language and offered the Appellant an opportunity to provide any evidence in support of his claim. Despite the month-long break in the hearing (from November 22, 2021 to January 24, 2022) and despite the Appellant providing emails and documentation to the review officer before and after each of the hearing dates, the Appellant provided nothing, not even a note made by him contemporaneous to the pre retainer discussions with the Respondent.

There was no evidence to support this claim. [ 34 ] The Appellant argues that “either way, the contrasting positions of the parties regarding the circumstances surrounding the signing of the Retainer crystallize a dispute, namely what were the nature of the representations made by the Respondent to the Appellant (if any) prior to the signing of the Retainer?” Further he argues that the review officer “ought not have waded into this controversy” when the review officer concluded that “If [the Appellant’s] version of events is correct, it would be tantamount to – to, you know, a finding that Ms.

Carter essentially lied to you, intentionally lied to you, with the hope that you would then sign a retainer agreement with her. That is a serious allegation, and I’m simply, number one not prepared to make a finding like that without solid evidence in favour of that position. And I don’t have solid evidence in favour of that position” (January 24, 2022 p. 38 line 17-21). [ 35 ] The Appellant’s argument on this point is without merit. The review officer did not “wade into the controversy”.

The review officer did not prefer the Respondent’s version of events over that of the Appellant, as suggested by counsel for the Appellant. The review officer accurately set out the position of the Appellant on this point. The review officer addressed the lack of any evidence to support his this claim. The review officer by implication, ascribed the evidentiary and persuasive burden to the Appellant on his claim. The review officer by implication applied the proper balance of probabilities standard to the claim.

The review officer then, dismissed the claim that was offered without any evidentiary foundation by the Appellant. [ 36 ] In declining to place any weight on the Appellant’s assertion that Ms.

Carter provided a legal opinion before the retainer agreement was signed, and in effect, induced the Appellant to enter into the retainer agreement, the review officer did not make any credibility findings, as suggested by the Appellant. [ 37 ] Even if the review officer could be said to have made a credibility finding on this issue, it is within his purview to make such a finding provided that the credibility finding relates solely to whether the lawyer acted within the scope of the retainer: Fraser Milner Casgrain LLP v Kristof Financial Inc. , at para 48 .

The review officer considered the position of the parties and the whole of the evidence before him, to conclude that there was no evidence to support the claim of the alleged activity by Ms. Carter. [ 38 ] As well, the Respondent points to the fact that it was agreed between the parties that no document review was conducted by the Respondent until after the retainer agreement was executed, so there would have been nothing upon which Ms. Carter could have based any such legal opinion. [ 39 ] Finally, the Respondent points to the terms of the retainer agreement itself – terms that are not disputed by the Appellant.

The documents explicitly state that the engagement letter and the Terms of Business form the agreement between the parties and there is an express provision that stipulates that the retainer agreement cannot be modified without agreement in writing by a partner of the Respondent firm. [ 40 ] In fact, the only evidence that the review officer had on this point was the evidence of the Respondent.

The review officer, an expert in this field, applied his knowledge and concluded that the argument from the Appellant on this point was lacking any evidentiary foundation and was contrary to the express terms of the retainer agreement and contrary to the professional obligations of counsel not to provide legal opinions without first reviewing client files. All of this was within the jurisdiction of the review officer. Was the Appellant afforded procedural fairness? [ 41 ] The Appellant asserts the following in his argument that he was not afforded procedural fairness: he was not given sufficient

opportunity to advance his case, the review officer should have invited Ms. Vigneaux to “clarify her opinion” and “clear up and confusion” in the Appellant’s testimony, the review officer “favoured” Ms.

Carter by letting her depart the proceedings to go to an appointment and in refusing to allow the Appellant to question her, the review officer did not attempt to retrieve the Appellant’s notes from him, the “indiscernible” notations in the transcript indicate a lack of understanding on the part of the review officer and denied the Appellant the opportunity to advance his case and resulted in the review officer mischaracterizing and misunderstanding the Appellant’s testimony. [ 42 ] In Baker v Canada (Minister of Citizenship and Immigration) , 1999 SCC 699, the Supreme Court of Canada established the considerations when analyzing procedural fairness.

The closer an administrative process resembles a judicial process, the more procedural protections are necessary. In the present case, the review hearing is an informal process, therefore less protections are required. The second factor is whether the statutory regime attracts a right of appeal. More procedural protections are required where there is no right of appeal. A hearing before a review officer attracts a statutory right of appeal, therefore fewer procedural protections are required. The third factor is the importance of the decision to the individual affected.

The greater the impact on a person’s liberty, the greater protections are required. The decision of a review officer does not engage liberty interests, it is an assessment of the value of the legal services provided. The fourth factor is the doctrine of legitimate expectations, which involves the expectation that a decision maker will follow its regular procedures. This factor is engaged in a hearing before a review officer. Finally, the last factor is respect for the procedural choices made by the decision maker.

Since there are few procedures established in statute upon review officers, procedural protections do not need to be robust. [ 43 ] The Appellant was given sufficient opportunity to advance his case. The hearing took place over four calendar days. He attended over the phone, which added a level of complication to his presence that was capably and patiently handled by the review officer. The hearing itself was also adjourned because time ran out and because the review officer asked both parties to submit evidence or submissions in response to specific issues that the review officer raised.

The Appellant was not rushed through the process. The Appellant was permitted every opportunity to ask questions, seek clarification, address the issues raised by the review officer, and counter the submissions of the Respondent’s counsel. His concerns were clearly understood by the review officer. The Appellant was invited after each adjournment to provide the review officer with additional documentation. This documentation was clearly reviewed by the review officer in advance of the next date.

There is no merit to the assertion that the Appellant was not provided a sufficient opportunity to advance his case before the review officer. [ 44 ] The suggestion that the review officer “could have easily invited” Ms. Vigneaux to give evidence betrays a lack of understanding of the role of the review officer and the hearing process. While the hearing process is an informal one, the review officer role is not inquisitorial. A review officer is a neutral party, vested with the impartiality that comes with occupying a decision-making function of the Court.

It is not the review officer’s job to advance the interests of any party who appears before them. The Appellant represented himself at the hearing, and he alone was responsible for marshalling the witnesses and the evidence to support his claim that the Respondent’s bill was not reasonable. The evidence shows that the Appellant was well organized and well educated.

His emails to the Respondent during their lawyer-client relationship demonstrates that he was well versed in his predicate complaint before the AHRC and was capable of advocating for himself. [ 45 ] The Appellant argues that the review officer erred in not permitting him to question Ms. Carter and is particularly aggrieved that Ms. Carter did not attend the March 7, 2022 hearing date. Parties may be represented by anyone at these hearings. The fact that the Respondent chose to be represented by Mr. Konopka on March 7, 2022, and that Ms.

Carter did not attend that date, is of no consequence. [ 46 ] Hearings before a review officer are conducted by submissions from the parties, after the review officer has received and reviewed all the documents submitted in relation to the retainer, communications between the lawyer and the client, and any other documentary support that either party wishes to provide. Questioning, in the vein of discoveries or cross examination, is not part of this hearing regime. [ 47 ] The hearing before the review officer occupied 2 full court days over 4 different calendar days.

As a result of the public health restrictions occasioned by the COVID 19 pandemic, all these appearances were virtual appearances. All parties appeared over WebEx. A clerk remained in the courtroom and operated the recording device. Following the hearing, this recording was reduced to a transcript. It is correct that there were a number of “indiscernible” notations in the transcripts and that most of those were during the Appellant’s submissions. There are many reasons for an “indiscernible” notation in a transcript.

It could be that the speaker’s bandwidth was unstable and only part of a word was captured on the recording, it could be that the speaker was a fast talker, and the recording makes it difficult to parse out individual words, it could be that there was background interference in the courtroom or in the physical space where the speaker was situated. [ 48 ] The notation of “indiscernible” does not inevitably lead to the conclusion that the review officer ignored, mischaracterized or misunderstood evidence or submissions. [ 49 ] It is correct that most of the “indiscernible” notations in the transcript are attributed to the Appellant.

The review officer interrupted the Appellant and sought clarification more than once when an “indiscernible” notation was recorded in the transcript.

The review officer was actively engaged in questioning and reframing what the parties were saying, interrupting at times to clarify points and to ensure that he had a full understanding of the parties’ positions on issues. [ 50 ] A fulsome review of the transcript does not support the conclusion that the review officer did not hear or understand those portions of the transcribed recording where “indiscernible” is noted. [ 51 ] Finally, the Appellant argues that he was not afforded procedural fairness because the review officer erred by not sufficiently considering the evidence and/or ignoring representations made by the Appellant, and by mischaracterizing evidence.

There is no merit to this suggestion. [ 52 ] The review officer understood the issues and focused the lengthy, bifurcated hearing on the issues at hand. He had reviewed

the materials filed in advance and had a command of the evidence and the Appellant’s complaints about the fees. The review officer directed the hearing to the issues at hand, sought submissions and reviewed the evidence on each issue as it arose. He explained the process and the relevance of certain evidence to the Appellant when it was clear that the Appellant did not fully understand the process or the issue. The review officer took care to ensure that he understood the Appellant’s position on each issue before a decision was rendered.

He applied the proper burden of proof and pointed out gaps in the evidence on the positions of both parties when necessary. Were the fees reasonable? [ 53 ] The Appellant argues that the fees charged by the Respondent were not reasonable.

Specifically, he argues that the total fees offend R 10.9 and the test for reasonableness, that the fees to prepare the opinion on the jurisdiction of the AHRC were duplicative and unnecessary given the opinion prepared by previous counsel and that some of the fees incurred were for steps taken by the Respondent and as such, the Appellant is not responsible for these fees. [ 54 ] The Respondent asserts that the review officer considered all the evidence and properly determined the quantum of fees. [ 55 ] Review officers are experts in the field, and they are best placed to assess the reasonableness of the fees under R 10.9.

This necessarily involves an assessment of the value of the legal services provided. [ 56 ] In Steinke v Hajduk Gibbs , 2014 ABQB 34 , the Court set out the principles that govern the assessment of lawyer’s fees.

These include that the court must hold the lawyer and the client to promises made in a retainer agreement regarding amounts a lawyer may charge and a client must pay for legal services in the absence of a compelling reason not to; unless there is a contrary position in the retainer agreement, a client must pay for a legal service which increases the likelihood the purpose of the retainer agreement will be achieved; the client is not responsible for the cost associated with unnecessary steps; a client who instructs a lawyer to take a step which increases the likelihood the objective of the retainer will be achieved but will not likely present a benefit which justifies the cost or does not increase the likelihood of success is responsible for the fees associated with this service; to ensure that those obliged to pay for legal services are treated reasonably by their counsel, taking all circumstances into account; a client who contests their lawyer’s charges at the outset of the hearing must particularize their complaint; and finally, it is the lawyer who bears the burden of persuading the review officer that the amount charged is appropriate. [ 57 ] Counsel for the Appellant argues that some steps taken by the Respondent were unnecessary, specifically, the preparation of the opinion on the jurisdiction of the AHRC, and that the client is not responsible for the cost of this necessary step. [ 58 ] Even though the Appellant retained Ms.

Carter to assist him, the retainer agreement acknowledged that some of the work on his file would be completed by other counsel under Ms. Carter’s supervision. This was to the Appellant’s benefit as those other counsel had a much lower billable hourly rate than Ms. Carter. [ 59 ] The Appellant argues that the fees to prepare the opinion on the jurisdiction of the AHRC was billed at $50,000. This is incorrect. The review officer was not confused about the amount of fees charged for this opinion. In fact, the $50,000 was the billing for the entirety of the legal work completed in the first billing period.

The preparation of the legal opinion was a small portion of this amount. Much of this first billing period was devoted to a document review of the previous two years of material on the Appellant’s multiple AHRC claims and preparing for conciliations. [ 60 ] The review officer concluded that the Appellant was not fully apprised of the potential cost of the opinion nor was he given the option of seeking a less detailed, shorter opinion letter. This was relevant because there was already the opinion from Ms.

Vigneaux which contained a detailed history of the AHRC complaints. [ 61 ] The review officer concluded that the student at law research hours and the ten hours spent by Mr. Konopka to review the documents provided by the Appellant, in preparation for drafting the opinion letter, were necessary and reasonable. However, the review officer agreed with the Appellant that the the additional ten hours for actually drafting the opinion by Mr. Konopka, was not reasonable because “some of the ten hours should not really have been spent without giving Dr.

Adebisi some information on how much it would cost to do a detailed opinion letter and also what his option might be in requesting an opinion letter that is not nearly as detailed”. As a result of this conclusion, the review officer reduced by just over half the fee for these ten hours, resulting in a $1,700 reduction. [ 62 ] The review officer then addressed the cost management factor, which he explained was “a factor that review officers do consider from time to time in assessing the reasonableness of fees.

And it is based on the premise that a client should be informed of the potential costs of a matter.” He further explained that “the cost management factor when we apply it, it is not a mathematical process of applying...[it] is applied more as kind of a penalty to the law firm because of the lack of ability on the client’s part to have had the information necessary for controlling costs”. [ 63 ] Although the review officer concluded that the fees and time entries “seem to be reasonable for what was done” and that “the work was reasonably done”, he concluded that while that there was communication and warnings from the Respondent to the Appellant that the litigation could be expensive, there was nothing in the evidence “that is a definitive enough warning to say this could cost a lot of money”.

The cost management factor was also applied for two other reasons. First, because there was ambiguity in relation to the first bill whether the amount included the $9,000 that the Appellant initially advanced in support of the retainer agreement, or whether the first bill was in addition to that initial payment. Second, because there was ambiguity in the Respondent’s communication to the Appellant on that first bill about whether Ms. Carter’s time was included in it or not. [ 64 ] The remainder of the fees were found to be reasonable as a result of the combination of the following.

The review officer considered that the Appellant is an educated, articulate medical doctor. He regularly communicated with the Respondent via emails that were lengthy and contained additional attachment material. The litigation began two years earlier, against multiple parties, the claims were complicated and required the review of an enormous amount of material. The conciliations were set for April 26 and May 4. The Respondent was initially contacted by the Appellant April 22 – 26, and the retainer agreement was signed April 27 th . This work was

also time sensitive as the Respondent was retained days before the first of the scheduled conciliations. [ 65 ] It was on May 24 th that the Respondent provided the Appellant with their legal opinion that the AHRC did not have the jurisdiction to hear his complaints. [ 66 ] After the legal opinion, from mid-June to mid-July 2021, the Appellant was in regular almost daily contact via telephone or email with the Respondent on the conciliation, offers, positions, strategy and the Appellant’s goals, which morphed from settling his individual disputes into making systemic changes and policy reviews to pave the way for, from his view, more fairness for Black physicians in the future. [ 67 ] As well, even though the Appellant had retained the Respondent, he continued to have discussions, communications and correspondence with counsel for AHS and with the AHRC, all of which had to be provided by these third parties back to the Respondent as a matter of professional obligation.

This conduct by the Appellant increased the time that the Respondent had to devote to his litigation. [ 68 ] Finally, the review officer dealt with the Appellant’s claim that the Respondent did not understand his objectives in the conciliations and did not provide him with any value in those negotiations. [ 69 ] Setting aside for the moment that the review office did not accept the Appellant’s contention that he only retained the Respondent to prepare an opinion and not to represent him during the conciliations, the review officer disagreed that the Respondent did not provide value for their services in the conciliations.

The review officer considered the fact that the Appellant was in the weaker position in the conciliations, that he sought remedies that were not available in law, that his goals in this process were broad and anchored in systemic changes, and that the Respondent was retained within a very short period of time before conciliations began and thus, had a very short time frame to review the material and prepare for the conciliations. [ 70 ] It was clear that the Appellant was under many mistaken impressions relating to the actions that he launched. He thought that the AHRC would provide him with counsel.

He thought that the conciliations would be potentially successful while at the same time maintaining his complaints with the AHRC. He thought that the review officer should have called Ms. Vigneaux as a witness in support of the Appellant’s arguments at the initial hearing. [ 71 ] The Appellant was motivated in this litigation to change the landscape for other Black physicians in Alberta. He wanted systemic changes to the way AHS and the WPCN recruited and compensated doctors.

Even if successful in these goals, he wanted to continue to advance his complainants at the AHRC until he got a written decision that he could use to pursue liability and to attempt to continue to keep the complaints active. [ 72 ] The Appellant’s goals were weak in the litigation itself. However, his goals superseded his individual claims as he sought to effect systemic changes to how AHS and the WPCN operated. This motivated him to continue litigation that had limited potential for success.

The review officer found that the Respondent apprised the Appellant of this fact and represented his interests as he instructed them to do. [ 73 ] There is no error in the review officer’s consideration of the reasonableness of the fees, or his decision on the quantum of reduction for the hours spent by Mr. Konopka on drafting the opinion ($1,700) or on the cost management reduction (($1,600). The only error is the calculation one. The net reduction in the fees should have been $3,300, not $2,300 as indicated by the review officer.

Costs [ 74 ] The Respondent seeks costs for the hearing before the review officer, costs for this appeal, and prejudgement interest. The Appellant argues that

Schedule C costs is sufficient. [ 75 ] For the hearing before the review officer, the Respondent seeks

Schedule C Column 1 costs in the amount of $675 per half day of hearing. They are not seeking any costs for the October 22, 2021 hearing date that was adjourned. They argue in support of costs that the hearing before the review officer took much longer than usual. The review officer addressed the issue of costs on March 7, 2022. He applied R 10.23 and declined to make a costs award for the hearing as he explained that the Rules only permitted a costs award where the client misbehaved during the review. He concluded that he could not find that this was the case.

As the Appellant was self- represented during the hearing before the review officer, this is a finding that was open to the review officer to make and there is nothing on the record that warrants disturbing this finding. [ 76 ] The Respondent argues that full indemnification of their costs on the appeal is warranted, or in the alternative, 75%-80% of full indemnification costs, arguing that counsel for the Appellant engaged in actual misconduct and conduct that was contemptuous of the Rules of Court. [ 77 ] The Respondent advised that their total costs are approximately $50,000 from the date that the Notice of Appeal was filed. [ 78 ] The Respondent cites the following as conduct warranting the sanction of full indemnification: late service of the Notice of Appeal such that the Respondent had only 2 days notice of the appearance date, lack of compliance with the Rules regarding sufficient notice, the lack of a complete record submitted by the Appellant, the lack of complete materials submitted by the Appellant, and the fact that when these deficiencies were brought to the attention of counsel for the Appellant, he chose to ignore or avoid the Rules .

As a result of this conduct by counsel for the Appellant, the Respondent was required to expend the cost and resources to obtain and submit the significant missing portions of the record of proceedings. As well, they argue that the lack of sufficient notice required them to incur extra costs to act quickly to avoid a delay of the appeal. [ 79 ] The Appellant filed the Notice of Appeal on April 1, 2022 returnable for April 28, 2022. Yet this document was not served

on the Respondent until April 26, providing only 2 days’ notice of the chambers application. No explanation was provided for this delay in service. Despite this late notice, the chambers date was not adjourned. [ 80 ] As well, this Notice of Appeal was served more than one month after the Certificate of the Review Officer was issued on March 7, 2022. This was contrary to R 26(4) which requires service of a Notice of Appeal within one month.

No explanation was provided for this breach of the Rules . [ 81 ] The Notice of Appeal was in breach of R 10.26 as the record of proceedings contained significant omissions and it did not contain a written argument. The omissions included the lack of a transcript for the November 22 hearing date – which was a full half day of proceedings. The Respondent eventually consented to an Order permitting the Appellant to serve his written submissions by June 26, 2022. The Appellant filed his written submissions on July 7, and the Respondent was served a filed copy days later, in breach of the consent order.

Service of the written submissions was eleven days after they were due and three days after they were filed with the Court. This left the Respondent with four days to prepare, respond and file their written submissions for the appeal. [ 82 ] Finally, the index of documents prepared by the Appellant was filed on April 1, 2022 and served on the Respondent almost 3 months later, on June 24, 2022. In addition to delayed serviced, the Appellant’s index was materially deficient. The Appellant’s index was 35 pages. The Respondent provided a complete index which contained almost 1100 pages.

The Appellant’s index omitted attachments to the letters that the Appellant had sent, which letters and attachments were before the review officer and referred to by the review officer. The Appellant was a prodigious electronic communicator, both to the Respondent during the solicitor client relationship and to the review officer. Before and after each of the November 22, 2021 and January 24, 2022 hearing date, the Appellant provided a considerable amount of email communication to the review officer.

This was not fully catalogued in the index of documents. [ 83 ] The Appellant neglected to provide the transcripts for October 14 and November 22, 2021. The review officer, in answering the Appellant’s questions about the procedure to appeal the decision, told him that he would not be required to obtain the October 14 transcript as that was just an adjournment application. However, the November 22 hearing date was a full half day and was a substantive appearance.

When the omission of the November 22 transcript was brought as to the attention of counsel for the Appellant, he advised Respondent’s counsel that he would not be providing the transcript.

As a result, the Respondent assumed the expense of acquiring and submitting this transcript so that the record would be complete on this appeal. [ 84 ] The Respondent relies upon Weatherford Canada Partnership v Addie , 2019 ABCA 92 , to support their assertion that conduct that does not involve fraud, a breach of trust and abuse of process or the making of baseless allegations or dishonestly may nevertheless, rise to the level of “misconduct” for the purposes of a costs assessment. [ 85 ] Counsel for the Appellant argues correctly that full indemnification costs are rare.

He further argues that an award of full indemnification requires strong malfeasance on the part of the unsuccessful party. This is incorrect.

While the Court of Appeal has concluded that “solicitor client costs are rare and must be based on intentional misconduct during the litigation”, (emphasis in the original), malfeasance is not required: see Weatherford , at para 14, 15-18. [ 86 ] Counsel for the Appellant argues that some of the delay was related to the new court e-filing procedures implemented during the COVID public health restrictions, that the Respondent consented to some of the delays and that there was no prejudice to the Respondent as a result of his actions.

I disagree. [ 87 ] By early 2022, the Court had been engaged in the COVID initiated digital filing system for almost 2 years. While there may still have been challenges with some counsel to the new system, professional courtesy obligated counsel for the Appellant to communicate with counsel for the Respondent. There should have been no delay in serving the Respondent with materials that were already filed. Yet, the Notice of Appeal was served 25 days after it was filed.

The Respondent was prejudiced by this late service as they had to marshal their resources for a chambers application that was only 2 days after they were served. The Appellant’s written submissions were served eleven days after they were due and three days after they were filed with the Court. The Respondent was prejudiced as this left them with four days to prepare, respond and file their written submissions for the appeal.

The fact that the Appellant refused to order a transcript of the November 22 hearing date further prejudiced the Respondent as they were required to order and pay for that transcript in order to resist the appeal and place all the required and relevant material before the Court. [ 88 ] Even in the written material filed on this appeal by counsel for the Appellant, the absence of the record is glaring. Counsel for the Appellant begins his factum by stating that the appeal “arises from the decision of the Review Officer rendered in the proceedings occurring on January 24, 2022 and March 7, 2022”.

This ignores the hearing dates of November 22, 2021 (which was a substantive appearance, and a 53 page transcript). It was on November 22, 2021 that the hearing began, and that the Appellant presented his main 2 arguments. This date also contains the Respondent’s arguments countering these claims.

This transcript set out the review officer’s explanation to the Appellant about the process, and it demonstrates the technical challenges of the Appellant appearing over the phone, how the review officer was fully engaged in explaining the process, explaining the technology, and interrupting the Appellant when the review officer did not fully understand either a phrase, sentence, concept or the substance of what the Appellant was saying. This goes directly to the Appellant’s claim that he was not afforded procedural fairness.

As well, the November 22, 2021 transcript sets out the timeline of the discussions, the retainer, the work done, and the concurrent conciliation process. [ 89 ]

Schedule C amounts are inadequate to address the conduct of counsel for the Appellant, the additional burden on the Respondent to file their own material without the benefit of the time permitted by the Rules , and the unnecessary costs incurred by the Respondent to order a transcript and correct the substantial deficiencies in the Appellant’s index of documents. [ 90 ] The Appellant will pay costs of $35,000 to the Respondent. Costs are payable forthwith. Conclusion [ 91 ] The appeal is denied. The decision of the review officer is affirmed. The calculation error in the review officer’s decision is

corrected such that the amount of the Respondent’s bill is $79,648.77 (82,948.77 billed minus the $3,300 reduction applied by the review officer). Prejudgement interest will apply to this amount. The Appellant will also pay costs in the sum of $35,000, payable forthwith. Heard on the 31st day of January, 2023 Dated at the City of Edmonton, Alberta this 31st day of July, 2023. S.E. Richardson J.C.K.B.A. Appearances: Ugo Ukpabi For the Appellant Rose Carter K.C., James Konopka and Justin Ockerman (Student-at-Law) For the Respondent