Barth v Ritter, 2021 SKCA 95

Court of Appeal for Saskatchewan Docket: CACV3532 Citation: Barth v Ritter , 2021 SKCA 95 Date: 2021-07-05 Between: Timothy Aaron Barth Appellant (Applicant) And Iffat Ritter Respondent (Respondent) Before: Jackson, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Leurer On appeal from: QBG 102 of 2019, Saskatoon Appeal heard: March 10, 2021 Counsel: Timothy Barth on his own behalf Bryden Wudrich for the Respondent Tholl J.A. I.

INTRODUCTION [ 1 ] Iffat Ritter, a lawyer, represented Timothy Barth in a family law matter for a period of time and then withdrew. Mr. Barth paid the bills for legal fees and disbursements that were periodically sent to him by Ms. Ritter. Approximately three months after the last statement was rendered, Mr. Barth sought to have the entire account assessed pursuant to The Legal Professions Act, 1990 , SS 1990-91, c L-10.1 [ Act ]. When Ms. Ritter was served with the application, she retained a lawyer from the same firm that represents Mr. Barth’s wife in the family law litigation. This led to Mr.

Barth filing a second application seeking to have that lawyer removed from the assessment application on the basis of a conflict of interest. [ 2 ] The Chambers judge orally dismissed the application to remove Ms. Ritter’s counsel and, after reserving on the other application, dismissed Mr. Barth’s application to have the bills assessed: Barth v Ritter (14 November 2019) Saskatoon, QBG 102 of 2019 (Sask) [ Chambers Decision ]. Mr. Barth asserts the Chambers judge erred by refusing to order that Ms. Ritter’s counsel be removed from the matter and, as a remedy, asks for an order from this Court requiring Ms.

Ritter to refund the entirety of the legal fees he paid to her. He also raises additional issues with regard to the Chambers judge’s refusal to order the assessment. [ 3 ] For the reasons that follow, it is my view that the appeal should be dismissed. II. BACKGROUND [ 4 ] On August 1, 2017, Mr. Barth retained Ms. Ritter, a lawyer at Cuelenaere LLP, to represent him in a family law dispute. At some point, his wife retained Samantha Neill, a lawyer at Scharfstein Gibbings Walen Fisher LLP [Scharfstein Gibbings], to represent her in the litigation. Ms. Ritter acted as counsel for Mr.

Barth until September of 2018, although she did not file a notice of withdrawal until November of 2018. During the course of her representation, Ms. Ritter rendered 12 statements for legal fees and disbursements, with the dates of the statements ranging from October 17, 2017, to October 25, 2018. Mr. Barth questioned a portion of the charges in one of the bills in early August of 2018, and Ms. Ritter adjusted it at the time in accordance with his concerns. After this adjustment, the total of the bills was $38,201.81. Mr. Barth paid all of the bills in full.

His last payment of $3,526.47, which paid the last four bills, was made on December 20, 2018. [ 5 ] In November of 2018, Mr. Barth retained Valerie Watson to represent him in his family law litigation. After less than one month of representing Mr. Barth, Ms. Watson changed law firms and accepted a position at Scharfstein Gibbings. As a result, she also withdrew from representing Mr. Barth. A conflict protocol in relation to Ms. Watson was put in place at Scharfstein Gibbings prior to her joining that firm. [ 6 ] On January 21, 2019, Mr.

Barth filed an application with the Court of Queen’s Bench seeking an order permitting the entirety of Ms. Ritter’s account to be assessed. Because he had applied more than 30 days after the bills had been rendered, he required leave of a judge under s. 67(1)(a)(iii) of the Act to have the account assessed. The application was returnable March 14, 2019. His grounds for the application stated that such an order was in the interests of justice, pursuant to s. 67 of the Act . [ 7 ] After she was served with the application, Ms. Ritter retained Brent Barilla, Q.C., to represent her. Mr.

Barilla is a partner at Scharfstein Gibbings, the same firm that represents Mr. Barth’s wife. The application was adjourned by consent for two weeks. When it returned to Chambers on March 28, 2019, Mr. Barth raised an issue regarding Mr. Barilla’s alleged conflict of interest in representing Ms. Ritter. He asserted Scharfstein Gibbings was in a position of conflict because the firm also represented his wife. The matter was

adjourned to April 11, 2019, for the purposes of Mr. Barth filing an application seeking to have Mr. Barilla barred from acting for Ms. Ritter. Mr. Barth filed an application without notice on April 9, 2019, asking for that relief. Justice Smith refused to grant the application because of the lack of notice and directed that it be brought with notice. Mr. Barth filed an application with notice on April 10, 2019, seeking the same relief. The matters were adjourned one more time and ultimately both applications were heard together on May 30, 2019. [ 8 ] On May 30, 2019, the Chambers judge orally dismissed Mr.

Barth’s application to have Mr. Barilla barred from acting for Ms. Ritter. The endorsement of the Chambers judge’s ruling is as follows: “I am satisfied that there is no conflict of interest, subject to a production of a Chinese wall. I will dismiss the request to discharge Mr. Barilla from this file, specifically from the taxation in representation of Ms. Ritter. This matter is reserved”. [ 9 ] On May 31, 2019, Mr. Barilla, on Ms. Ritter’s behalf, filed an affidavit from a partner at Scharfstein Gibbings setting out the conflict protocol that was in place for Ms. Watson.

On September 18, 2019, the Chambers judge endorsed the following on the file: I note that I did not write a further fiat after receiving Mr. Barilla’s letter of May 31, 2019. I correct that omission now. Having seen the letter and the affidavit, I am satisfied that there was no conflict of interest that would have prevented Mr. Barilla from appearing on this matter. [ 10 ] On November 14, 2019, the Chambers judge rendered a lengthy written decision on the remaining issue. His written reasons did not further address the removal of Mr. Barilla. Because Mr.

Barth had filed his application for assessment outside of the 30-day period, the Chambers judge noted that the principal issue before him was whether it was in the interests of justice to extend the time in which to bring the application. He applied s. 67(1)(a)(iii) of the Act in his analysis. In doing so, he recognized that he could order assessment of all, some or none of the bills. [ 11 ] The Chambers judge examined the evidence in detail. He reviewed the retainer agreement, the 12 statements of account, and the circumstances surrounding the one concern that had been raised by Mr. Barth to Ms.

Ritter about the bill in early August of 2018. He then examined the 33 criticisms about Ms. Ritter’s work that Mr. Barth had itemized in his January 2, 2019, affidavit, along with Ms. Ritter’s evidence that responded to those issues. The Chambers judge observed that Mr. Barth had filed a complaint with the Law Society of Saskatchewan that addressed many of the same issues. He then noted the Law Society’s conclusion that the complaint had raised no issues of conduct or competence and that no further investigation was warranted.

After making this observation, he excerpted the first two paragraphs from page 2 of the Law Society’s report, which concluded as follows ( Chambers Decision ): [30] The [Professional Responsibility Counsel] expressed the opinion that Mr. Barth’s complaint raised no issues of conduct or competence with respect to Ms. Ritter … In particular, the first two paragraphs on page 2 of her letter read as follows: I note that over the course of around five months through the assistance of Ms. Ritter and her colleagues, you went from rarely seeing your son to a joint custody/shared parenting arrangement.

You were ordered interim child and spousal support. You also obtained (although less to do with Ms. Ritter and more her colleagues) a conditional discharge on your criminal charge. As an independent observer, I can say these were very good results for you, obtained in a reasonable time frame. While there have been some delays encountered since then, they appear to fall at the feet of the opposing party and other third parties rather than Ms. Ritter. It is not uncommon in litigious matters that your position differs from that of the opposing party.

If you were in agreement, you would not be taking your matter to court. As such the opposing party has the right to have their views represented in the court by the opposing counsel. It is not misconduct for Ms. Ritter to work with opposing counsel to try and resolve your legal matter. From my review, I believe Ms.

Ritter has attempted to limit the amount of delay and leeway given to the opposing side, while remaining within her obligations according to the rules of court in the Code of Professional Conduct . [ 12 ] After reviewing this evidence, the Chambers judge began his analysis by setting out s. 67 and s. 71 of the Act . The relevant portions of those sections are as follows: Application for taxation 67

(1) A bill of fees or disbursements with respect to services performed by a member may be assessed: (

a) on application to the court: (

i) by the person charged with the bill, within 30 days after the day on which the person received the bill; (ii) by the member, if no application is made pursuant to subclause (i); or (iii) by the person charged with the bill, after the expiration of the time set out in subclause (i), if the court is satisfied that it is in the interests of justice to do so … . … Taxation after payment 71

(1) Payment of a bill does not preclude the court from referring the bill for assessment if: (

a) an application for assessment is made within 30 days after the day on which the bill was paid … . [ 13 ] Other than setting out the text of the section, the Chambers judge did not address what effect, if any, s. 71 of the Act had on the application. [ 14 ] The Chambers judge listed several cases regarding the application of s. 67 of the Act and focused his discussion on Doig v

Mazinke, 2007 SKQB 3, 291 Sask R 221 [Doig]; Machula v Kuse, 2011 SKQB 370, 384 Sask R 86 [Machula]; and Salyne v Walen, 2012SKQB 139, 395 Sask R 229 [Salyne]. He then concluded as follows: [38] In my view, the facts of this case are similar to the circumstances faced by Smith J. in Salyne.

Both cases involved somewhat difficultfamily proceedings where the client was, considering all the facts involved, reasonably successful during the time that counsel wasengaged, with few complaints expressed as services were provided and paid for. [39] More importantly, I agree with the observations of the Law Society’s [Professional Responsibility Counsel]. The complaintsexpressed by Mr. Barth sound more like after-the-fact criticisms on matters of judgment. Lawyers employ various approaches andstrategies in the representation of clients in litigious matters.

In deciding what approach or strategy should be given in a given case, theyare expected to exercise reasonable judgment, informed by their training, their experience and the particular circumstances of the case. [40] The expectation is for “reasonable” judgment – not “perfect” judgment. Reasonably exercised judgments, with hindsight knowledge,may turn out to be incorrect. That, of itself, does not make them any less reasonable. This is not to say that any of Ms. Ritter’s decisions inthis case were incorrect. That said, Mr. Barth now believes they were.

He now argues that the services he received should have beenprovided free of charge. In my view, Mr. Barth’s submissions reflect a serious misunderstanding of the role of counsel – amisunderstanding that has inflated his expectations well beyond what is reasonable. His misunderstanding, standing alone, cannot formthe basis for a finding that it is in the interests of justice to extend the applicable time limit.

Conclusion [41] Under all the circumstances, and having regard to the authorities I have mentioned, I find that it is not in the interests of justice toextend the time for applying for an assessment of the accounts identified. In the result, the application is dismissed. Ms. Ritter shall haveher costs, taxed under Column three. [15] At some point after the argument of the applications in the Court of Queen’s Bench, Mr. Barilla withdrew from acting forMs. Ritter and she is now represented by different counsel. The notice of change of representation was dated July 28, 2020, and filed onAugust 5, 2020. Mr.

Barth has not asserted any conflict concerns about Ms. Ritter’s new counsel. III. ISSUES [16] The issues in this matter are as follows: (

a) Did the Chambers judge err by refusing to disqualify Mr. Barilla from acting for Ms. Ritter? (

b) Did the Chambers judge err by finding it was not in the interests of justice to order an assessment of Ms. Ritter’s bills? IV. ANALYSIS A. Removal of Ms. Ritter’s counsel [17] As a preliminary point, Ms. Ritter conceded that, although the notice of appeal mentioned only the November 14, 2019, order,this appeal also includes an appeal from the Chambers judge’s order dismissing the application to have Mr. Barilla barred from acting forher. Her factum fully responded to the issue.

As a result, it is not necessary to consider whether the Chambers judge’s May 30, 2019, oraldecision, confirmed by his September 18, 2019, fiat, is incidental to the appeal of the November 14, 2019, order, within the meaning ofs. 9(5) of The Court of Appeal Act, 2000, SS 2000, c C-42.1. [18] It is important to be clear from the outset about Mr. Barth’s reasons for objecting to Mr. Barilla acting for Ms. Ritter. Asclarified in his oral presentation, his concern is that Ms. Ritter would provide confidential information to Mr. Barilla that she receivedfrom Mr. Barth when he was her client.

He expresses worry that Mr. Barilla could then pass that information on to other lawyers atScharfstein Gibbings, who represent his wife, and those lawyers could use that information to his detriment in the family law litigation.His expressed concerns are compounded by the fact that his subsequent former counsel, Ms. Watson, also now works at ScharfsteinGibbings. [19] Mr. Barth’s written submissions also contain assertions regarding a different lawyer, Courtney Fisher, who moved fromCuelenaere LLP to Scharfstein Gibbings. Ms. Ritter admits Ms.

Fisher worked at Cuelenaere LLP at a point in time when she representedMr. Barth and subsequently changed firms to Scharfstein Gibbings, but there is no other evidence regarding that issue. As a result,Ms. Fisher’s involvement has no relevance to the matter at hand. [20] Mr. Barth does not assert that the alleged conflict could potentially work to his detriment in his bill assessment dispute withMs. Ritter. His concerns are confined to the potential negative effect it could have on his family law litigation.

This is important because itmust be kept in mind that the application at stake in this appeal was not an application to have Scharfstein Gibbings barred from acting forMs. Barth in the family law litigation. It was an application to have a partner of that firm prevented from representing Ms. Ritter inconnection with Mr. Barth’s request to assess the legal accounts rendered by Ms. Ritter. I note that Mr. Barth has twice unsuccessfullyapplied in the Court of Queen’s Bench to have Scharfstein Gibbings disqualified from acting for his wife in the family law litigation.

Anappeal from the first of those determinations was struck by this Court as being manifestly without merit: Barth v Barth (21 February 2020)Regina, CACV3556 (Sask CA), leave to appeal to SCC refused, (18 February 2021). Because an appeal from thesecond of those unsuccessful applications is still pending before this Court in CACV3690, I will not further examine that aspect of theissue. [21] Neither party referred this Court to any cases that considered the scenario that exists here. They both relied on the general

principles that have developed with regard to disqualification of counsel. As a result, I will begin my analysis with an examination of theclassic and common scenario where Party A seeks to disqualify Party B’s counsel because that counsel, or their firm, had previously actedfor Party A. [22] The leading case on disqualification of counsel is MacDonald Estate v Martin, (SCC), [1990] 3 SCR 1235[MacDonald Estate]. In MacDonald Estate, a lawyer moved to a firm that represented a party against her former client. The former clientsought to have the law firm disqualified from representing his adversary.

In examining whether the law firm should be prohibited fromacting in those circumstances, Sopinka J., for the majority, set out three competing values that arise when a party seeks to have anotherparty’s counsel disqualified from acting for them (at 1243): In resolving this issue, the Court is concerned with at least three competing values. There is first of all the concern to maintain the highstandards of the legal profession and the integrity of our system of justice. Furthermore, there is the countervailing value that a litigantshould not be deprived of his or her choice of counsel without good cause.

Finally, there is the desirability of permitting reasonablemobility in the legal profession. [23] After extensively canvassing domestic and international jurisprudence in MacDonald Estate, Sopinka J. determined that thefollowing test should be applied to determine whether a lawyer or law firm should be disqualified from acting against their former client(at 1259–1260): [T]he test must be such that the public, represented by the reasonably informed person would be satisfied that no use of confidentialinformation would occur.

That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Isthere a disqualifying conflict of interest? ... Typically, these cases require two questions to be answered:

(1) Did the lawyer receive confidential information attributable to a solicitorand client relationship relevant to the matter at hand?

(2) Is there a risk that it will be used to the prejudice of the client? [24] The Supreme Court considered the duty of loyalty owed by a law firm to a client in R v Neil, 2002 SCC 70 , [2002] 3SCR 631 [Neil]. In that case, a lawyer represented a client in relation to circumstances that had resulted in criminal charges. A differentlawyer at the same firm represented parties adverse in interest to the original client.

In speaking of the duty of loyalty in conjunction witha party’s right to not be deprived of their counsel of choice, Binnie J. stated the following: [12] … the defining principle – the duty of loyalty– is with us still. It endures because it is essential to the integrity of the administration ofjustice and it is of high public importance that public confidence in that integrity be maintained … .

Unless a litigant is assured of theundivided loyalty of the lawyer, neither the public nor the litigant will have confidence that the legal system, which may appear to them tobe a hostile and hideously complicated environment, is a reliable and trustworthy means of resolving their disputes and controversies … . [13] The value of an independent bar is diminished unless the lawyer is free from conflicting interests. Loyalty, in that sense, promoteseffective representation, on which the problem-solving capability of an adversarial system rests. Other objectives, I think, can be related tothe first.

For example, in MacDonald Estate, supra, Sopinka J. speaks of the “countervailing value that a litigant should not be deprived ofhis or her choice of counsel without good cause” (p. 1243). … [14] These competing interests are really aspects of protecting the integrity of the legal system.

If a litigant could achieve an undeservedtactical advantage over the opposing party by bringing a disqualification motion or seeking other “ethical” relief using “the integrity of theadministration of justice” merely as a flag of convenience, fairness of the process would be undermined. … [29] … it is the firm not just the individual lawyer, that owes a fiduciary duty to its clients, and a bright line is required.

The bright line isprovided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests ofanother current client – even if the two mandates are unrelated – unless both clients consent after receiving full disclosure (and preferablyindependent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting theother. (Emphasis in original) [25] The Supreme Court returned to an examination of disqualifying conflicts of interest in Canadian National Railway Company vMcKercher LLP, 2013 SCC 39, [2013] 2 SCR 649 [CNR].

In that case, a law firm, representing a group of plaintiffs, brought a class actionagainst one of their current clients. The class action was unrelated to any of the matters on which the law firm represented the existingclient. All of the existing client’s retainers were terminated by the law firm or by the client. Thereafter, the client brought an applicationseeking to have the law firm disqualified from acting for the plaintiffs in the class action.

In examining this issue, McLachlin C.J.C.determined that the duty of loyalty has three components: a duty to avoid conflicting interests, a duty of commitment to the client’s cause,and a duty of candour. She reiterated the bright line rule from Neil, which states that a law firm cannot concurrently represent parties thatare adverse in interest to each other, regardless of whether the matters are related, without the clients’ consent.

As set out in paragraph 32of CNR, the bright line rule only applies when the immediate legal interests of the clients are directly adverse and the rule does not applyto condone tactical abuses. Once again, the Supreme Court highlighted the prejudice that can occur as a result of a lawyer’s misuse ofconfidential information. [26] While the principles from MacDonald Estate, Neil and CNR might have some general relevance, they are a poor fit with thecircumstances at hand. Mr.

Barth was never a client of Scharfstein Gibbings, so the duty of loyalty owed by a lawyer and their firm to aformer client, and the associated bright line rule, are not engaged. [27] A scenario closer to the one being examined here is found in Simmonds v Dalmyn (1993), (MB CA), 106DLR (4th) 677 (Man CA) [Simmonds]. In Simmonds, a client retained a lawyer, Mr. Dalmyn, and commenced a medicalmalpractice action against two defendants. The defendants retained the Aikins law firm to defend them. The action languished and waseventually dismissed for delay.

After the action was dismissed, the client retained new counsel and sued Mr. Dalmyn for solicitor

negligence. In response, Mr. Dalmyn retained the Aikins law firm to defend him. The client successfully applied to have the Aikins lawfirm disqualified from representing Mr. Dalmyn because of its prior representation of the defendants in the underlying medicalmalpractice action. However, on appeal, Kroft J.A., writing for the majority, allowed the appeal and permitted the Aikins law firm tocontinue acting for Mr. Dalmyn.

In his majority reasons, Kroft J.A. made the following observations: [40] This case must be considered with an appreciation that the situation here is at the opposite pole from the kind addressed in theMorton [ (MB CA), [1988] 2 WWR 317 (Man CA)] and MacDonald Estate cases. No member of the Aikins firm everrepresented Simmonds. No one there received or had access to privileged or confidential information from Simmonds.

Aikins representedher adversary in the first action and, if permitted, will represent her adversary here. … [66] All of the reasons I have expressed will, I trust, make it clear why, in my view, the learned motions judge erred in bringing thepresent case under the rubric of the MacDonald Estate decision and in concluding that there is a legitimate concern for the perception offairness in the justice system that should prevail over Dalmyn’s right to retain the lawyer of his choice. … [68] Simmonds has obviously lost confidence in Dalmyn.

She may also be angry because the “enemy” lawyer who succeeded in havingher first action dismissed is once again representing an adversary. These understandable emotional reactions are not tantamount to a“perception” that there is unfairness in the justice system or that there is a blot on the “integrity” of the judicial process. [28] The fact pattern in Simmonds is somewhat comparable to the matter at hand, but there is a significant distinguishing feature. InSimmonds, the Aikins firm had ceased to act for the defendants in the original action because it was fully concluded. Here, Mr.

Barthcontinues to be engaged in ongoing litigation with his wife, who is still represented by Scharfstein Gibbings. Mr. Barth’s specific concern– that he will be prejudiced in his underlying litigation – was not a factor in Simmonds. As such, the determinations in that case do notpresent a complete answer to this appeal. [29] While this jurisprudence provides a useful backdrop, it is my view that the issue facing us can be resolved on a much morefundamental basis. When a disqualifying conflict is found, the usual remedy would be an order barring counsel from acting on the matter,with or without costs.

That remedy is not available here because the argument of the application in the Court of Queen’s Bench proceededand Mr. Barilla subsequently withdrew as counsel. In my view, in the circumstances at hand, there is no order from this Court that couldrespond to any potential prejudice in the assessment application. Mr. Barth has not asserted, let alone established, that he was potentiallyprejudiced in any way in the conduct of the application under s. 67 of the Act. He stated unambiguously in his oral submissions that hisconcerns only related to the possible negative effects on his family law litigation. Mr.

Barth does not allege the hearing on the assessmentapplication was otherwise unfair and does not request, nor want, a new hearing in the Court of Queen’s Bench. He requests that this Courtconduct the assessment and order that his legal fees be refunded in their entirety. In my opinion, the fact that Mr. Barilla representedMs. Ritter had no impact on whether it was in the interests of justice to permit an assessment of Ms. Ritter’s bills. As such, in thecircumstances of this matter, there is no remedy that could be granted by this Court on the basis of the alleged conflict. This ground ofappeal cannot succeed. B.

Referring the bills for assessment [30] Mr. Barth submits the main reason for his appeal of the order refusing to refer the bills for assessment was the alleged conflictof interest as a result of Mr. Barilla’s representation. That issue has been addressed above. However, Mr. Barth has raised other issuesregarding the assessment application. He alleges Ms. Ritter provided false information in her affidavit; and, overall, he asserts the decisionby the Chambers judge was wrong. [31] Mr. Barth applied to have Ms. Ritter’s bills assessed well after 30 days had passed since the bills had been rendered.

As such,the Chambers judge had to determine, under s. 67(1)(a)(iii) of the Act, whether it was in the interests of justice to order the assessment.This was a discretionary decision, which attracts a deferential standard of review as summarized by Barrington-Foote J.A. in Kot v Kot,2021 SKCA 4, 63 ETR (4th) 161: [20] In

summary, these cases confirm that appellate intervention in a discretionary decision is appropriate where the judge made apalpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider materialevidence. Appellate intervention is also appropriate where the judge failed to correctly identify the legal criteria which governed theexercise of their discretion or misapplied those criteria, thereby committing an error of law. Such errors may include a failure to give anyor sufficient weight to a relevant consideration.

See also Cowessess First Nation No. 73 v Brabant and Company Law Office, 2016 SKCA 35, 476 Sask R 171. [32] Mr. Barth asserts that Ms. Ritter provided false information in her affidavit, which, in his submission, should have resulted inthe assessment being allowed and his legal fees refunded. He notes that Ms. Ritter averred that she did not represent him in his criminalmatters, but he argues that this is not true. Mr. Barth submits Ms. Ritter also provided false information regarding the date that a differentcriminal lawyer began to represent him on his criminal charges.

He contends these “lies” and “perjury” establish wrongdoing byMs. Ritter and demonstrates that the bills need to be assessed by this Court, with the entirety of the legal fees ordered to be refunded tohim. [33] The portion of the March 11, 2019, affidavit that Mr. Barth says is false is as follows: 14. In response to paragraph 1, I admit that I did not contact the Spiritwood RCMP Detachment Commander Sgt. Shannon Haggerty inregard to his domestic violence charges against his former spouse as I represented Mr. Barth in relation to a Family Law matter. Mr. Barthhad already retained legal counsel, Ms.

Leslie Sullivan, Q.C., for his criminal matters.

[ 34 ] This averment was in response to paragraph 1 of Mr. Barth’s January 2, 2019, affidavit, which stated the following: “Did not check into if Shannon Haggerty had been called by my ex on July 15 2017 when I asked her too. Even when it was mentioned in the video affidavit of my ex that she had given to Shannon Haggerty about the July 15 2017 incident”. [ 35 ] Mr. Barth’s challenge to this paragraph of Ms. Ritter’s affidavit is twofold. First, he says she did represent him on his criminal matters and, second, that he had not retained Ms. Sullivan by the date inferentially referred to by Ms. Ritter.

With regard to representation on the criminal matters, Ms. Ritter did provide some initial assistance to Mr. Barth on those matters by performing tasks such as attending for adjournments and requesting routine disclosure. The endorsements from the Provincial Court demonstrate Ms. Ritter appeared on simple adjournments. There is also correspondence from her to the Provincial Court, the RCMP and the Crown Prosecutor’s office on routine aspects of the criminal proceedings. However, the complex portions of the criminal matter were handled by Leslie Sullivan, Q.C., an experienced criminal lawyer. Mr.

Barth admits that Ms. Sullivan represented him on his criminal charges. This is confirmed by an email from Ms. Ritter to Mr. Barth dated December 5, 2017. With regard to the date issue, it is my view that the inferred date referenced in Ms. Ritter’s affidavit is ambiguous and inconsequential, at best. Pointing to potential minor discrepancies in Ms. Ritter’s affidavit – and it is a dubious proposition that the averments even rise to the level of being discrepancies – does not provide grounds for this Court to question the findings made by the Chambers judge. [ 36 ] I will now turn to Mr.

Barth’s argument that the Chambers judge was wrong in his conclusions regarding whether he should extend the time and order an assessment. The Chambers judge reviewed Mr. Barth’s 33 concerns and criticisms in depth and considered the merits of those issues within the context of the governing case law: Doig , Machula , and Salyne . Mr. Barth’s notice of appeal does not allege any specific errors and, in his submissions, he did not identify any errors in the Chambers judge’s analysis that would permit this Court to intervene. His submissions simply reargue the application. Mr.

Barth wants this Court to examine the matter afresh, exercise our discretion and come to a different conclusion than the Chambers judge. Given the standard of review, that is something we cannot do. There is no merit in these general submissions. V. CONCLUSION [ 37 ] I would dismiss the appeal with costs to Ms. Ritter, fixed in the reduced amount of $750. “Tholl J.A.” Tholl J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Leurer J.A.” Leurer J.A.