Greckol J

1.2: Purpose and intention of these rules
9.12: Correcting mistakes or errors
9.13: Re-opening case
9.5: Entry of judgments and orders
10.19: Review officer’s decision
10.2: Payment for lawyer’s services and contents of lawyer’s account
10.31: Court-ordered costs award
10.36: Assessment of bill of costs
10.41: Assessment officer’s decision
10.9: Reasonableness of retainer agreements and charges subject to review

Case Summary

The Plaintiff, Koopmans, appealed the Decision of a Provincial Court Judge who dismissed his Claim against a lawyer and his law firm. Greckol J. allowed the Appeal in an earlier Decision, holding that the Plaintiff was entitled to damages for the return of legal fees and Costs. The Respondents applied for certain changes to that Decision, relying on Rules 9.12 and 9.13. Greckol J. cited and explained several Rules which impacted the Application. Justice Greckol noted that Rule 9.12 allows the Court to correct a mistake or error in a Judgment or in an Order arising from an accident, slip or omission. Rule 9.13 allows the Court to vary a Judgment or Order, or if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its Judgment or Order or reasons. A review under Rule 10.9 by a Review Officer involves a decision concerning a dispute between a lawyer and client relating to an account, initiated by either the lawyer or the client. An assessment under Rule 10.36 involves an Assessment Officer making a decision concerning a dispute between two litigants when it becomes the responsibility of one party to pay the Costs of the other and there is a dispute as to the Bill of Costs.

Justice Greckol considered whether the Application under Rule 9.13 was timely (Rule 9.13 provides broad authority to vary Judgments before entry). Greckol J. found that the Formal Judgment Roll had not yet been entered, pursuant to Rule 9.5, and authority was retained under Rule 9.13 to consider the Application on its merits.

The Applicants argued that the award of the return of legal fees was a collateral attack on the Assessment Officer’s Order. The Applicants contended that Rule 9.13 should be used to vary the Judgment in order to recognize that the issue of negligence as it related to legal fees was already decided by the Review Officer. Greckol J. held that the Judgment itself distinguished between the issue of negligence considered on Appeal and the issue of quantum of legal fees considered by the Review Officer. The Applicant argued Rules 10.36(1) and 10.41 as the basis for the authority to conduct an Assessment. Justice Greckol distinguished between an Assessment and a Review under the Rules, and noted that, in this case, the Decision of the Review Officer was based upon the Review of the retainer agreement. Such a review is conducted by a Review Officer under Rules 10.9, 10.19(1), and 10.2(1), and involves different considerations. Justice Greckol concluded that there was no collateral attack of the Review Officer’s Decision in the Judgment; it remained a review of the quantum of the legal fees whereas the Judgment turned on a finding of lawyer negligence. The Applicants did not show a very high likelihood of error in the Judgment, and therefore failed to meet the threshold required in a Rule 9.13(a) Application. Justice Greckol noted that the objectives in Rule 1.2 could weigh against granting a Rule 9.13(a) Application, and that the threshold for such Applications was high.

In regard to the self-represented Plaintiff’s Costs, Greckol J. was satisfied that the Costs award was warranted and specifically permitted by Rule 10.31(5). Finally, the Plaintiff had agreed with the Applicants that the return of legal fees should have been somewhat less than the amount indicated in the Judgment as a result of a reduction by the Review Officer. Greckol J. therefore directed that the correct amount of damages be reduced and the change be made under Rule 9.12. In the final analysis, Justice Greckol concluded that the Applicants’ arguments amounted to a request for reconsideration of the entire Judgment. The Applicants launched substantive arguments that contested the express conclusions drawn in the Judgment in a way that could not be properly addressed without a formal Appeal. Greckol J. observed that no Appeal was available, and for good reasons: the courts do not have the resources for the litigation of small claims cases beyond one level of Appeal. The Application was not properly advanced under Rule 9.13 and was therefore dismissed.

View CanLII Details