4.31: Application to deal with delay
10.10: Time limitation on reviewing retainer agreements and charges

Case Summary

This matter arose from a Review Officer’s Reference to the Court. Two issues for which the Review Officer needed direction were raised. First, direction was required to determine whether the accounts presented for review were interim or final accounts. Second, if the accounts were final, should the accounts that are not out of time under the Limitations Act, RSA 2000, be reviewed, despite Rule 10.10(2) which clarifies that the retainer agreement cannot be reviewed if six months have passed after the date the account was sent to the client? McLennan Ross LLP also raised the issue of inordinate delay under Rule 4.31.

With regards to the inordinate delay concerns, McLennan Ross LLP took the position that the delay was inordinate due to difficulties they would have in demonstrating reasonableness of charges because, over the course of the proceedings, memories would have faded or lawyers working on the matter would have left the firm. Considering the facts, Master Smart did not find the delay in proceeding with the Reference to be inordinate because there was no evidence of actual prejudice.

When considering whether the accounts presented for review were interim or final accounts, Master Smart considered the specific language of the written retainer agreement. Ultimately, Master Smart found no ambiguity in the retainer agreement and concluded that the retainer contemplated that the accounts were interim accounts and subject to review.

View CanLII Details