10.18: Reference to Court
10.23: Costs of review
10.26: Appeal to judge
10.27: Decision of judge
10.9: Reasonableness of retainer agreements and charges subject to review

Case Summary

The Appellant appealed the decision of a Review Officer in relation a legal bill presented by the Respondent law firm. The Court found ultimately confirmed the decision of the Review Officer, but for a calculation error, and the Appeal was accordingly dismissed.

The Court noted that the standard of review to be applied to an Appeal of a Review Officer’s decision under Rule 10.26 is deferential, given the Review Officer’s specialized knowledge and experience in assessing the reasonableness of lawyer’s accounts and that they were in best position to assess and weigh evidence. The Court also noted that in accordance with Rule 10.27(1), it may interfere with a Review Officer’s decision if any of these errors are clearly made on the record of the hearing, noting that where interference is so justified, the Court on Appeal may reassess the account or return it for a new assessment, among other remedies.

The Court noted that Rule 10.18(1)(a) requires that the Review Officer must refer any question arising about the terms of a retainer agreement to the Court for decision and direction. The Court additionally noted that the terms of a retainer agreement could not be decided by the Review Officer, including: questions of interpretation and implied retainer agreements and oral agreements.

Among other issues, the Court considered whether the Review Officer exceeded their jurisdiction with respect to determining if the lawyer working for the Respondent had provided a legal opinion before the retainer agreement was signed which was accompanied by inflammatory language, suggesting fraud and extortion on the part of the lawyer working for the Respondent (the “Retainer Allegation”) .The Court found that the Retainer Allegation was without merit, noting that the Review Officer had applied the proper balance of probabilities standard and dismissed the Retainer Allegation as being without any evidentiary foundation.

The Court found that the Review Officer did not make any credibility findings with respect to the Retainer Allegation but determined that even if the Review Officer had done so, it was within the Review Officer’s purview, provided that the credibility finding related solely to whether the lawyer acted within the scope of the retainer. The Court further considered the terms of the retainer agreement itself and noted that the Retainer Allegation: lacked any evidentiary foundation; was contrary to the express terms of the retainer agreement; and contrary to the professional obligations of counsel to not provide legal opinions without first reviewing client files. The Court accordingly found that the Review Officer’s findings was within their jurisdiction.

The Court determined that the Review Officer’s decision to not award the Respondent Costs for the hearing before the Review Officer in accordance with Rule 10.23 was a finding that was open to the Review Officer to make and that there was nothing on the record that warranted disturbing this finding.

The Court found that there was no error of the Review Officer’s consideration of the reasonableness of the fees but considered whether total fees charged by the Respondent were reasonable in accordance with Rule 10.9. The Court noted that Review Officers are experts in their field and are best placed to assess the reasonableness of fees under Rule 10.9, which necessarily involve an assessment of the value of the legal services provided. The Court set out that  that the principles which govern the reasonableness of lawyers fee include: (1) the Court must hold the lawyer and the client to promises made in a retainer agreement regarding amounts a lawyer may charge, and a client must pay for legal services in the absence of a compelling reason not to; unless there is a contrary position in the retainer agreement; (2)  a client must pay for a legal service which increases the likelihood the purpose of the retainer agreement will be achieved; (3) the client is not responsible for the cost associated with unnecessary steps; a client who instructs a lawyer to take a step which increases the likelihood the objective of the retainer will be achieved but will not likely present a benefit which justifies the cost or does not increase the likelihood of success is responsible for the fees associated with this service; (4) to ensure that those obliged to pay for legal services are treated reasonably by their counsel, taking all circumstances into account; and (5) a client who contests their lawyer’s charges at the outset of the hearing must particularize their complaint; and finally, it is the lawyer who bears the burden of persuading the Review Officer that the amount charged is appropriate.

In determining that Schedule C amounts were inadequate for the hearing before the Review Officer, the Court among other things noted that: (1) the Notice of Appeal was served more than one month after the Certificate of the Review Officer was issued which was contrary to the requirement the requirement that requires service of a Notice of Appeal within one month as set out in Rule 10.26; (2) the Notice of Appeal was in breach of Rule 10.26 as the record of proceedings contained significant omissions including the lack of a transcript for the underlying hearing, and did not contain a written argument.

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