FAZEL v SINGER (WILSON LAYCRAFT), 2023 ABCA 213
MARTIN, HO AND GROSSE JJA
10.26: Appeal to judge
This was an Appeal of an Order made in morning Chambers refusing an extension of time to file an Appeal of a Review Officer’s decision.
The Appellant retained the Respondent in 2019 for a family law matter. Between September 2019 and March 2020, the Respondent invoiced the Appellant $98,828.70. Approximately $42,273.48 of the balance remained outstanding.
The parties attended before a Review Officer. The Review Officer proceeded with the review despite the Appellant’s request for an Adjournment and allowed for the entirety of the Respondent’s fees. The Appellant appealed to the Alberta Court of Queen’s Bench, (as it was then), and a Justice subsequently ordered the matter to be redetermined.
The re-determination took place over a three-day period. On the final day, the Appellant asked the Review Officer to recuse himself, alleging inappropriate ex-parte communication with the Respondent. The Review Officer refused the request, and the Appellant left the Hearing, despite warnings that the Review Officer still planned to proceed. The Review Officer allowed for the entirety of the Respondent’s fees. The Appellant did not file an Appeal of a Review Officer’s decision within one month, as required pursuant to Rule 10.26(4).
The Respondent filed an Application for Judgment for the remaining fees. Master Prowse (as he was then) adjourned the Respondent’s Application and directed the Applicant to file an Application to extend the time to Appeal a Review Officer’s decision.
When the Applicant’s Application was heard, they tried to refer to new evidence that was not available to the Master. Referring to the rule in Cairns v Cairns, 1931 CanLII 471 (ABCA) (“Cairns”), the Chambers Judge dismissed the Application for an extension of time.
The Appellant was now appealing on the basis that the Chambers Judge erred in refusing to grant an extension of time to Appeal the Review Officer’s Certificate and erred in dismissing the Appeal in its entirety. The Appellant also argued that the Chambers Judge failed to provide a fair hearing. The Appellant argued that the Chambers Judge erred in assessing the Cairns factors because they failed to consider the Appellant’s new evidence.
The Court considered the test for admitting new evidence set out in Palmer v The Queen, 1979 CanLII 8 (SCC) (“Palmer”). Satisfied that the new evidence met the Palmer requirements, the Court admitted the Applicant’s new evidence. The Court stated that now, with the admission of the new evidence, it was required to determine if the Chambers Judge erred in assessing the Cairns factors. Despite the new evidence the Court determined that justice did not require for an extension to the time period to Appeal a Review Officer’s decision. Moreover, the Court found no reviewable error in the Review Officer’s reasonableness assessment or of his confirmation of the amount of fees and disbursements owed to the Respondent.
The Court held that in light of the above reasons, and as they admitted the new evidence, it was not necessary to address the Appellant’s contention that the hearing was procedurally unfair. Ultimately, the Appeal was dismissed.View CanLII Details