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BARRISTERS AND SOLICITORS - Compensation - Contingency agreements

Monday, January 18, 2021 @ 9:24 AM  


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Application by the law firm for a declaration confirming that they had a right to appeal a decision of a chambers judge overturning a Review Officer’s decision that a contingency fee agreement was reasonable because it was not a decision as to costs only or, if it was a decision as to costs only, for permission to appeal. The respondent entered into a contingency fee agreement with the applicants. The initial contingency fee agreed to was 20 per cent. After the respondent’s claims were resolved, the respondent applied for a review of the contingency fee agreement. In response to the Review Officer’s requests, the applicants submitted an estimate of their time records which came to $391,900, about three per cent of the amount the applicants would be entitled to under the contingency fee agreement. The Review Officer, however, found the 20 per cent contingency fee reasonable. The chambers judge revoked the Review Officer’s decision because the Review Officer applied the wrong test.

HELD: Application allowed. Even if a Review Officer’s review of a lawyer’s charges to his or her client amounted to a decision as to costs alone for the purpose of Rule 14.5(1)(e), a review of a contingency fee agreement did not. The policy behind the rule requiring permission to appeal for a decision as to costs alone did not apply to an appeal of a review of a contingency fee agreement. Permission to appeal was thus not needed, as the decision under appeal was not a decision as to costs alone. The decision under appeal was, however, interlocutory in nature because the chambers judge’s final order on the amount of recoverable fees had not yet been issued. The appeal of the chambers judge’s initial decision was to be held in abeyance until it was known whether his final decision would be appealed so that the appeals could be heard together.

Rath & Co. v. Tallcree First Nation, [2020] A.J. No. 1321, Alberta Court of Appeal, R. Khullar J.A., December 3, 2020. Digest No. TLD-January182021002