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BARRISTERS AND SOLICITORS - Compensation - Taxation or assessment of accounts

Tuesday, April 07, 2020 @ 9:06 AM  


Lexis Advance® Quicklaw®
Appeal by a law firm from a decision referring 67 accounts issued by the appellant to its First Nation client for assessment and the costs award requiring the appellant to pay solicitor and client costs of $20,000. The appellant acted as general counsel for the client since 2013. Initially, various Band Council Resolutions were passed which retained the appellant on specific files. There was no written retainer agreement until 2015. The 2016 retainer confirmed the 2015 retainer, and provided that all work performed by the appellant up to March 2016 would be governed by the 2015 retainer. The 2016 retainer contained the same confirmation of the right to assess accounts after 30 days only if the client convinced a court it was in the interests of justice to do so. The 2016 retainer spoke to the finality of accounts. The disputed invoices consisted of 32 totalling $487,572 issued between 2013 and February 2016. Another 35 invoices totalling $380,339 were all dated March 2016. This last group of invoices contained thousands of entries and included work done as early as October 2013. Many of the entries contained only generic descriptions of the services provided. The client alleged the accounts were overall extraordinary and out of proportion with the scope of services it was retained to provide. It submitted that there were excessive disbursements, unauthorized charges for administrative tasks, unauthorized charges for Federal Court actions and numerous frivolous proceedings which were commenced without the benefit of legal advice from the appellant which produced little or no value for the client. The chambers judge determined the Legal Profession Act did not define or limit the authority of a band council or how it conducted its business and, accordingly, did not touch the core federal jurisdiction to engage the doctrine of interjurisdictional immunity. He also determined that even if the Act could be characterized as touching the core of federal jurisdiction in the matter, ss. 67 and 71 of the Act did not seriously trammel that jurisdiction or impair the power or the functioning of the council. He concluded that ss. 67 and 71 of the Act were not inoperable because of the doctrine of paramountcy. The chambers judge made the cost award after finding the appellant subverted the assessment process from an efficient and expeditious one into an unjustifiably lengthy and expensive one by filing volumes of documents for no discernible purpose, repetitiously pursuing arguments that had no chance of success and seriously misrepresenting factual matters.

HELD: Appeal dismissed. The chambers judge did not err in the admission and handling of the evidence. He made no error in striking out only certain parts of the client’s affidavits. The chambers judge was considering an originating application and was entitled to make findings of credibility based on disputed affidavit evidence. An application for an order for assessment was interlocutory and hearsay evidence was permissible. The Band Council Resolution, the 2016 retainer or the financial bylaw did not preclude the client from making an application for an assessment. The chambers judge, in deciding that an assessment was warranted, comprehensively reviewed the arguments and evidence and properly applied the Machula factors. The chambers judge exercised his discretion appropriately to determine that it was just in the circumstances of this case to order an assessment. The chambers judge made no error in ordering solicitor‑client costs based on the actions of the appellant during the litigation.

Cowessess First Nation No. 73 v. Phillips Legal Professional Corp., [2020] S.J. No. 52, Saskatchewan Court of Appeal, R.K. Ottenbreit, N.W. Caldwell and P.A. Whitmore JJ.A., February 21, 2020. Digest No. TLD-April62020006