Master Prowse

6.45: References to referee
6.46: Referee’s report
10.26: Appeal to judge
10.34: Court-ordered assessment of costs
10.9: Reasonableness of retainer agreements and charges subject to review

Case Summary

In accordance with Rule 6.45, Justice Neufeld appointed Master Prowse, in Chambers, as a Referee. Master Prowse was directed to hold an inquiry and draft a report in accordance with Rule 6.46 with respect to the reasonableness of the legal fees and disbursements assessed by the Review Officer in relation to a foreclosure Action (the “Referee’s Report”).

Pursuant to the mortgage at issue, the mortgagor was required to pay the mortgagee’s solicitor and own client Costs on default. Master Prowse noted that it is well established that this contractual entitlement is subject to reasonableness as reflected in Rule 10.9. To aid in determining the reasonableness of legal fees, the Alberta Masters and the Alberta foreclosure bar instituted the Foreclosure Fee Guidelines for assessing a reasonable range of solicitor and client costs in routine foreclosure actions (the “Guidelines”), which are not meant to prevent the Review Officers from acting with the discretion pursuant to directions given by the Court pursuant to Rule 10.34.

The Review Officer had concluded that the foreclosure in dispute was considerably more complicated and time consuming than a standard foreclosure action and, therefore, indicated a fee outcome higher than the prescribed Guidelines. Alta West Mortgage Capital Corporation (the “Appellant”) appealed the Review Officer’s Decision on the basis that the Award should have been substantially higher pursuant to Rule 10.26(1).

Master Prowse reviewed the Review Officer’s methodology and recommended that the matter be remitted back to the Review Officer. Master Prowse directed that the Appellant provide the Review Officer with timesheets containing the full listing of things done during the conduct of the foreclosure in order to provide a more fulsome record for the Review Officer’s consideration.

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