Tim Barth Appellant (Applicant) v. McDougall Gauley LLP, 2022 SKCA 67

Court of Appeal for Saskatchewan Docket: CACV3785 Citation: Barth v McDougall Gauley LLP , 2022 SKCA 67 Date: 2022-06-02 Between: Tim Barth Appellant (Applicant) And McDougall Gauley LLP Respondent (Respondent) Before: Caldwell, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Court On appeal from: QBG 1134 of 2019, Saskatoon Appeal heard: May 12, 2022 Counsel: Tim Barth on his own behalf Kate Joa for the Respondent The Court I.

INTRODUCTION [ 1 ] On February 26, 2021, Timothy Barth filed a notice of appeal from a decision of the deputy local registrar of the Court of Queen’s Bench: Barth v McDougall Gauley LLP (25 February 2021) Saskatoon, QBG 1134 of 2019 [ Registrar’s Decision ]. The Registrar’s Decision , made pursuant to s. 67 of The Legal Profession Act, 1990 , SS 1990-91, c L-10.1 [ LPA ], taxed two legal accounts of McDougall Gauley LLP for services rendered to Mr. Barth by a partner of that firm, Sherry Fitzsimmons. These accounts total $1,756.41. [ 2 ] More than a year passed without Mr.

Barth taking any steps to prosecute his appeal. This fact renders applicable Rule 46 of The Court of Appeal Rules . That Rule states as follows: Dismissal for want of prosecution 46

(1) An appellant shall diligently prosecute its appeal, perfecting the appeal within the time period prescribed by these rules. If an appellant fails to do so, a respondent may apply to a judge for an order requiring the appeal be perfected by a fixed date, failing which the appeal may be exposed to dismissal by the court for want of prosecution. …

(2) If an appeal has not been set down for hearing within one year after the notice of appeal has been filed, the registrar may, upon notice to the parties, refer the matter to the court to be dismissed as abandoned. Notice shall be given in Form 9, and the parties shall have 15 days to apply to the court to show cause why the appeal should not be dismissed. [ 3 ] The “registrar” referred to in this Rule is the Registrar of this Court. On March 21, 2022, acting in accordance with Rule 46(2), the Registrar gave notice to Mr.

Barth that he had 15 days to apply to the Court to show cause why his appeal should not be dismissed. Mr. Barth has applied for an order that he be allowed to proceed with his appeal. [ 4 ] We have concluded that Mr. Barth should not be allowed to proceed with his appeal. Our reasons follow. II. BACKGROUND [ 5 ] For a time, Sherry Fitzsimmons represented Mr. Barth in connection with certain family law matters. She rendered four accounts totaling $5,323.45. Later, she withdrew from her representation of Mr. Barth. [ 6 ] Mr. Barth felt that he should not have to pay McDougall Gauley LLP for Ms.

Fitzsimmons’ services. He made an application pursuant to s. 67 of the LPA for an assessment of her accounts. Although he presented many different arguments, at their core, they distilled to the dual points that Ms. Fitzsimmons inappropriately withdrew as his counsel and there were conflicts of interest such that no bill was reasonable. [ 7 ]

Section 67 of the LPA provides that a lawyer’s bill may be referred to the local registrar of the Court of Queen’s Bench for assessment if both parties agree or if one party successfully applies for an assessment. That provision states 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; or (

b) on application to the local registrar described in subsection (2), at the request of both the member and the person charged with the bill, at any time.

(2) An application pursuant to clause (1)(

a) shall be referred by the court to the local registrar of the court at the judicial centre nearest to which the member who performed the services carries on the member’s practice.

(2.1) On or before the referral by the court to the local registrar pursuant to subsection (2), a member and a person charged with the bill may attend a mediation session with respect to the bill.

(3) The court may restrain the bringing of an action with respect to that bill pending a reference pursuant to subsection (2).

(4) On an assessment of a bill pursuant to this Act, the local registrar may order any further particulars or details of the services for which the bill was ordered. [ 8 ] Payment of a bill is not necessarily an impediment to having the bill referred for assessment.

Section 71 of the LPA states as follows: 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; or (

b) an application for assessment is made within six years after the day on which the bill was paid and the court is satisfied that it is in the interests of justice to allow the assessment after the expiration of the time specified in clause (a).

(2) A reference pursuant to this

section is subject to any terms and directions that the court considers proper in the circumstances. [ 9 ] While s. 71 of the LPA imposes an ultimate deadline of six years to apply for assessment after a bill has been paid, a referral for assessment after 30 days have elapsed may only be made in the same circumstances as are applicable under s. 67(1)(a)(iii) of the LPA . In other words, the court may only refer a bill for assessment when it is in the interests of justice to do so. [ 10 ] Ms. Fitzsimmons consented to the assessment of the two most recent of the four accounts she had rendered to Mr. Barth.

By fiat dated October 17, 2019, Danyliuk J. dismissed Mr. Barth’s request that the two older accounts be assessed, but referred the two most recent accounts (those to which Ms. Fitzsimmons had consented) for assessment by the local registrar: Barth v Fitzsimmons (17 October 2019) Saskatoon, QBG 1714 of 2018 [ Referral Decision ]. In reaching this decision, Danyliuk J. specifically considered Mr. Barth’s arguments that he had been inappropriately “dropped” as a client by Ms. Fitzsimmons and that there was a “clear conflict of interest” (at paras 27 and 29 respectively). No appeal was taken by Mr.

Barth from the Referral Decision . [ 11 ] On February 25, 2021, the deputy local registrar issued the Registrar’s Decision , assessing the accounts referred to her by Danyliuk J. for taxation. It is from this decision that Mr. Barth has appealed to this Court. III. ANALYSIS A. Framework principles [ 12 ] The principles to be applied in a context such as this are summarized in several decisions of this Court, including Maurice Law, Barristers & Solicitors v Sakimay First Nation , 2016 SKCA 92 , 484 Sask R 131 [ Maurice Law ], and 6517633 Canada v Norton (Rural Municipality) , 2019 SKCA 45 [ 6517633 Canada ].

In the briefest of terms, an appellant who lets an appeal languish for more than one year has the onus of convincing the Court that it is in the interests of justice that the appeal be allowed to proceed. There are two aspects to the analysis of whether this onus has been met. [ 13 ] First, the Court must assess the appeal to determine if it is “manifestly without merit” ( 6517633 Canada at para 16).

In identifying this line of inquiry, it is important to understand that it is not intended to turn a show cause hearing into a detailed examination of the merits of an appeal, that is to turn it into a “dress rehearsal of the appeal proper” (at para 14). In the further words of Richards C.J.S., show cause hearings are not “ major proceedings”, but are intended to be “both to the point and expeditious” ( Maurice Law at para 16 ).

The purpose of this inquiry is to save the parties, and the judicial system as a whole, from any further time and expense of an appeal that is destined to fail. [ 14 ] If an appeal is manifestly without merit, that is the end of the matter. No further inquiry is required; it is not in the interests of justice that an appeal that is destined to fail be allowed to continue. However, if it cannot be said that the appeal is manifestly without merit, then there is a second aspect to the analysis.

This step requires an examination of other factors to determine if it is in the interests of justice that the appeal be allowed to proceed. Maurice Law (at para 14 ) and 6517633 Canada (at para 16) identify the same non- exhaustive list of considerations that the Court is likely to weigh and consider as bearing on this inquiry, as follows: (

a) the adequacy of the appellant’s reason for the delay in moving matters forward;

(

b) the extent, if any, that the respondent has expressed concern about the delay or attempted to have the appellant advance the appeal; (

c) the progress, if any, the appellant has made in preparing the materials necessary to perfect the appeal; (

d) whether, and the extent to which, the respondent has been prejudiced by the appellant’s failure to move the appeal forward or will beprejudiced if the appeal is allowed to proceed; and (

e) whether the appellant has the willingness and the capacity to comply with the deadlines that might be imposed by the Court in relationto the perfection of the appeal. [15] We would re-emphasize that the Court need only consider these additional factors if the appellant has met the onus of showingthat the appeal is not manifestly without merit. As explained by Richards C.J.S., a conclusion that an appeal is manifestly without merit“will be determinative of the inquiry” (6517633 Canada at para 16). B. Mr. Barth’s appeal is manifestly without merit [16] In this case, Mr.

Barth’s application fails at the merit stage of the analysis. It is destined to fail for two basic reasons. The firstis that he has no direct right of appeal to this Court from the Registrar’s Decision. The second is that Mr. Barth cannot advance thearguments he intends to make in the context of an appeal from the Registrar’s Decision. We will briefly explain both conclusions. 1. Mr.

Barth has no direct appeal to this Court from the Registrar’s Decision [17] All rights of appeal are statutory; that is to say, to bring and maintain an appeal, an appellant must be able to point to a specificgrant of statutory authority establishing the right to do so (Kourtessis v M.N.R., (SCC), [1993] 2 SCR 53). It is for thisreason that Form 1a of The Court of Appeal Rules – the form of notice of appeal – contemplates that an appellant will identify “the sourceof the Appellant’s right of appeal and the court’s jurisdiction to entertain the appeal”.

It is for the same reason that Rule 28(1) of TheCourt of Appeal Rules requires that an appellant “shall state the source of the right of appeal, the basis for the jurisdiction of the court todetermine the appeal and the applicable standard of appellate review”. [18] Mr. Barth’s notice of appeal does not identify the source of his right of appeal to this Court or this Court’s jurisdiction toentertain his appeal. At the show cause hearing, he failed to identify where this right of appeal might be found.

Finally, having reviewedthe LPA, we have concluded that this right does not exist and therefore this Court does not have jurisdiction to hear his appeal. For thisbasic reason, the appeal is manifestly without merit. [19]

Section 72 of the LPA provides a right to appeal against an assessment decision of the local registrar including, therefore, fromthe Registrar’s Decision in this case: Appeal of taxation 72 A party to a reference may appeal the decision of the local registrar to the court. [20] Section 2(1)(

e) of the LPA defines “court” to mean “the Court of Queen’s Bench, unless the context requires otherwise”.Accordingly, s. 72 is properly understood as providing a right to appeal to the Court of Queen’s Bench. Stopping here, it is clear that Mr.Barth’s avenue of appeal from the Registrar’s Decision is to a judge of the Court of Queen’s Bench, and not to this Court. [21]

Section 7 of The Court of Appeal Act, 2000, SS 2000, c C-42.1, also establishes certain rights of appeal, as follows: Right of appeal 7(1) In this

section and

section 9, “enactment” means: (

a) an Act; (

b) an Act of the Parliament of Canada; or (

c) a regulation made pursuant to

an Act or

an Act of the Parliament of Canada; but does not include this Act.

(2) Subject to subsection (3) and

section 8, an appeal lies to the court from a decision: (

a) of the Court of Queen’s Bench or a judge of that court; and (

b) of any other court or tribunal where a right of appeal to the court is conferred by an enactment.

(3) If an enactment provides that there is no appeal from a decision mentioned in subsection (2) or confers only a limited right of appeal,that enactment prevails. (Emphasis in original) [22]

Section 6 of The Court Officials Act, 2012, SS 2012, c C-43.101, states that every court official “is an officer of the court withrespect to which he or she is appointed or with respect to which he or she serves”. In addition to the broad duties that are applicable for allcourt officials set out in s. 7 of The Court Officials Act, 2012, s. 12 of the statute sets out duties that are specific to local registrars. Fromthis it is an easy conclusion that the local registrar is an officer of the Court of Queen’s Bench. This Court discussed the duties of a localregistrar in Phillips Legal Professional Corporation v Vo, 2017 SKCA 58, [2017] 12 WWR 779 [Vo], where Ottenbreit J.A. stated as

follows: [80] The assessment officer, as a public officer and a court official, was bound pursuant to s. 6 of The Court Officials Act by certain statutory obligations with respect to the execution of her duties. She took an oath under s. 4(1) to discharge her duties honestly and faithfully. As an officer of the court, she was bound to act in accordance with her duties and under the direction of the court. She has a duty of honesty and candour to the court. … [ 23 ]

Section 3 - 9 of The Legislation Act , SS 2019, c L-10.2 states as follows: Powers to judges 3-9

(1) If judicial or quasi-judicial powers are given to a judge or officer of a court, the judge or officer in exercising the powers does so in the judge’s or officer’s official capacity and representing the court.

(2) Without restricting subsection (1), if an appeal lies from a person, board, commission or other body to a court or judge, an appeal lies from the decision of the court or judge as in the case of any other proceeding in that court or in the court of which the judge is a member. [ 24 ] As noted, s. 67 of the LPA confers on the local registrar the responsibility to assess a lawyer’s bill of costs. As we will explain later, Rule 11-23 of The Queen’s Bench Rules sets out the considerations that the local registrar must have regard for when engaging in an assessment pursuant to s. 67 of the LPA .

We would conclude that, when making a costs assessment, the local registrar is “representing the court” in accordance with s. 3 - 9 of The Legislation Act . Nonetheless, in the context of the right of appeal from a local registrar’s assessment decision to a judge of the Court of Queen’s Bench, given by s. 72 of the LPA , it would make little sense to consider the local registrar’s assessment decision to be a decision of the Court of Queen’s Bench for the purposes of s. 7(2) (

a) of The Court of Appeal Act, 2000 . [ 25 ] However, even if we were to ignore this line of reasoning and proceed on the basis that the Registrar’s Decision should be treated as a decision of the Court of Queen’s Bench for the purposes of s. 7(2) (

a) of The Court of Appeal Act, 2000 , we cannot ignore the clear statement that the rights of appeal conferred by s. 7(2) are made subject to s. 7(3) . According to s. 7(3), if another enactment confers only a limited right of appeal, that enactment prevails. This brings the matter back to s. 72 of the LPA . As we have explained, that provision gives a right of appeal from a local registrar’s costs assessment decision, but such an appeal must be brought in the Court of Queen’s Bench. [ 26 ] The appropriate appeal process is illustrated by Vo .

In that case, a dispute between a former client and a lawyer against a local registrar’s assessment decision was first taken to a judge of the Court of Queen’s Bench, and then to this Court. In Cowessess First Nation v Phillips Legal Professional Corporation , 2018 SKCA 101 at paras 21–23 , 43 CPC (8th) 237 [ Cowessess 2018 ], Jackson J.A. explained that an appeal from a local registrar’s taxation decision lies to the Court of Queen’s Bench and that a further right of appeal exists to this Court pursuant to s. 7(2) (

a) of The Court of Appeal Act, 2000 . We accept that the issues in both Vo and Cowessess 2018 were different than those here. However, both are exemplars of the proper appeal procedure in relation to a local registrar’s assessment decision. [ 27 ] In short, a person who is unhappy with a local registrar’s assessment decision must first take their appeal to the Court of Queen’s Bench. If, after this, that person is dissatisfied with the decision of the Court of Queen’s Bench, an appeal can be brought to this Court. To be clear, the appeal to this Court is not from the decision of the local registrar.

Rather, it is properly understood as an appeal from the decision of the judge of the Court of Queen’s Bench. [ 28 ] The appeal structure we have described sits comfortably with the purpose and scheme of all the legislation we have mentioned. By establishing a right of appeal from a local registrar’s assessment decision in the LPA , the Legislature has pointed persons dissatisfied with such a decision to where to turn for a review. This places the local registrar under the immediate supervision of the court for which that person is an officer pursuant to The Court Officials Act, 2012 .

Finally, this understanding of the appeal structure limits the role of this Court to being a court of error, which is consistent with the overall scheme of The Court of Appeal Act, 2000 . [ 29 ] Based on all of this, Mr. Barth’s appeal has been brought to the wrong court. It is, for this reason, manifestly without merit. 2. The right of appeal from the Registrar’s Decision does not extend to the arguments Mr. Barth seeks to advance in his appeal [ 30 ] I n addition, Mr. Barth misunderstands the limits to the right of appeal from the Registrar’s Decision .

In this regard, s. 69 of the LPA outlines the form of direction that is provided to the local registrar when called to assess a lawyer’s account pursuant to s.

Section 69 states as follows: Costs 69 Every order for a reference pursuant to clause 67(1)(

a) shall direct, and every reference pursuant to clause 67(1)(

b) shall request, the local registrar to: (

a) assess the costs; and (

b) certify the amount that the local registrar may determine to be due to or from each party with respect to the bill and the costs of the assessment. [ 31 ] Rule 11-23 of The Queen’s Bench Rules governs a local registrar’s assessment of a lawyer’s bill where an assessment is being conducted pursuant to the provisions of the LPA : see Vo at paras 48–50 . Rule 11-23 states as follows: Assessment of lawyer’s bill of costs

11-23 On the assessment of a lawyer’s bill of costs pursuant to The Legal Profession Act, 1990: (

a) the assessment officer in exercising his or her discretion to determine a fair and reasonable amount shall consider the factors set out inthe commentary to rule 2.06(1) of the Code of Professional Conduct; and (

b) the rules in this Division apply except where they are inconsistent with that Act. [32] The commentary to Rule 2.06(1) of the Code of Professional Conduct (Regina: Law Society of Saskatchewan, 2012), as it readat the time, sets out a non-exhaustive list of considerations that may be weighed in determining whether a lawyer’s bill is fair andreasonable.[1] This list includes the following factors: (

a) the time and effort required and spent; (

b) the difficulty of the matter and the importance of the matter to the client; (

c) whether special skill or service has been required and provided; (

d) the results obtained; (

e) fees authorized by statute or regulation; (

f) special circumstances, such as the postponement of payment, uncertainty of reward, or urgency; (

g) the likelihood, if made known to the client, that acceptance of the retainer will result in the lawyer’s inability to accept otheremployment; (

h) any relevant agreement between the lawyer and the client; (

i) the experience and ability of the lawyer; (

j) any estimate or range of fees given by the lawyer; and (

k) the client’s prior consent to the fee. [33] As can be seen, this list includes a variety of factors that relate to the quantum of an account, but not factors relating to the kindof arguments that Mr. Barth seeks now to make, i.e., that he should not be required to pay any amount to McDougall Gauley LLP.

In thiscase, the local registrar was only tasked with assessing the two accounts from a time and dollar value perspective in order to determinewhether the amounts of those two accounts constituted a fair and reasonable amount for the services that had been rendered. [34] By seeking to argue that no account should have been rendered at all, Mr. Barth is, in effect, mounting a collateral attack on theReferral Decision. The proper method for advancing these arguments was via an appeal from that decision.

In this regard, in recent years,this Court has considered several appeals from orders granting or refusing references of a lawyer’s bill for assessment. Examples include:Cowessess First Nation No. 73 v Brabant and Company Law Office, 2016 SKCA 35, 476 Sask R 171; Cowessess 2018; Phillips LegalProfessional Corporation v Cowessess First Nation No. 73, 2020 SKCA 16; and Barth v Ritter, 2021 SKCA 95. [35] That brings this matter back to the right of appeal that is created by s. 72 of the LPA.

As Ottenbreit J.A. noted in Vo, “[t]heprimary purpose of an appeal is to review the assessment officer’s exercise of discretion” (at para 68, citing Re Solicitors (1912), (ON CA), 7 DLR 323 (Ont CA) at 333). See also: Stevenson v O’Byrne, 2018 SKCA 88 at paras 23–26. As explained byJackson J.A. in Cowessess 2018 at paragraphs 21–25, the right of appeal that exists pursuant to s. 72 does not extend to a review of thefirst-instance decision to refer the matter for assessment. [36] It follows from all of this that Mr.

Barth’s appeal from the Registrar’s Decision is manifestly without merit because thearguments he seeks to make are not open to him in an appeal from that decision. IV. CONCLUSION [37] For the reasons we have given, we conclude that Mr. Barth’s appeal discloses no right of appeal and is manifestly withoutmerit. Because it is destined to fail, his application for leave to proceed with his appeal must be dismissed. The result is that his appealmust stand as dismissed. [38] We grant McDougall Gauley LLP the costs of this application, and the appeal as a whole.

We fix these costs at $400.00. “Caldwell J.A.” Caldwell J.A. “Leurer J.A.” Leurer J.A. “Tholl J.A.” Tholl J.A.