KHAN v PAUL A KAZAKOFF PROFESSIONAL CORPORATION, 2019 ABQB 168
10.18: Reference to Court
10.2: Payment for lawyer’s services and contents of lawyer’s account
10.5: Retainer agreements
10.7: Contingency fee agreement requirements
The Applicant, Ila Khan (“Ms. Khan”), brought an Application for a review of the charges of her lawyer, Paul A. Kazakoff (“Mr. Kazakoff”), to a Review Officer who referred the issue to the Court for a determination pursuant to Rule 10.18(1). Ms. Khan agreed to sell 80 acres of land in Rocky View, Alberta (the “Property”) to a third party. The Property sale was completed and Mr. Kazakoff claimed that he had provided legal services to Ms. Khan in relation to the sale of the Property and was therefore entitled to 5% of the purchase price as a fee for those services based on an oral agreement between the parties (the “Payment”).
Ms. Khan and Mr. Kazakoff did not have a written agreement in relation to the Payment. Nonetheless, Mr. Kazakoff asked the Court to find that an agreement did exist and that it ought to be enforced pursuant to Rule 10.2. Mr. Kazakoff argued that it was a percentage fee or commission agreement as contemplated by Rule 10.5 which met the standard of reasonableness imposed by Rule 10.2. These arguments were preceded, prior to being abandoned by Mr. Kazakoff, by the arguments that the Payment was an enforceable contingency agreement under Rule 10.7 or one that could be rendered enforceable by virtue of Rule 10.7(8). The matter was made all the more complicated by the fact that Ms. Khan was an elderly women (85) who saw Mr. Kazakoff as a trusted legal advisor and friend, so much so that Mr. Kazakoff was made the sole beneficiary in her will.
Justice Woolley reviewed the relevant jurisprudence and noted that in assessing an Application under Rule 10.2 a Judge must: (1) apply the criteria listed and provide an explanation as to how they influenced the decision; (2) ensure that those who are obliged to pay for legal services are treated reasonably, taking into account all the circumstances; and (3) that the lawyer who charged the fee bears the burden of persuading the review officer that the amount charged is appropriate.
Woolley J. found that Mr. Kazakoff provided no corroborating evidence in relation to the existence of an agreement for the Payment. Her Ladyship noted that not only was there no written agreement but there was no record of any discussion between Ms. Khan and Mr. Kazakoff about the Payment: the only evidence before the Court as to the existence of an agreement was Mr. Kazakoff’s testimony to that effect. Her Ladyship further noted, inter alia, that Mr. Kazakoff did not provide the same level of services that would have been provided by a realtor and that, on prior occasions when Mr. Kazakoff had acted for Ms. Khan, of which there were many, each agreement had been in writing.
As such, Justice Woolley dismissed Mr. Kazakoff’s claim to any portion of the Payment, granted Ms. Khan’s Application, and ordered that Mr. Kazakoff repay the entirety of the Payment with interest and Costs.View CanLII Details