MIKISEW CREE FIRST NATION v RATH, 2023 ABKB
10.10: Time limitation on reviewing retainer agreements and charges
10.18: Reference to Court
10.7: Contingency fee agreement requirements
10.8: Lawyer’s non-compliance with contingency fee agreement
This was a referral to the Court, pursuant to Rule 10.18, from an appointment with a Review Officer challenging contingency fee agreements (“CFAs”) made between the Plaintiff First Nation and Defendant solicitor.
The Plaintiff alleged that the CFAs were not properly approved by Band Council and that the CFAs were uncertain and overbroad. The Plaintiff also alleged that the Defendant had failed to prove satisfactory compliance with the requirements set out in Rule 10.7. As such, the Plaintiff argued that the CFAs were invalid, pursuant to Rule 10.8. The Defendant argued that the CFAs complied with applicable Rules in all necessary respects and were otherwise proper. The Defendant further argued that the Plaintiff was out of time for review of the CFAs pursuant to Rule 10.10 and that the Review was premature since no event triggering payment under the CFAs had yet occurred.
Having concluded there was insufficient evidence that the CFAs were not properly approved, the Court considered the validity of the CFAs in light of applicable Rules. Rule 10.7(3) requires that a CFA be signed and witnessed and that the witness swear an Affidavit of Execution. The Court found that the CFAs were properly signed by the Plaintiff’s Chief and Council and that Affidavits of Execution had been sworn. Any irregularities in the Affidavit of Executions were insufficient to invalidate the CFAs.
Rule 10.7(4) requires service of a signed copy of the CFA within 10 days after the date on which the agreement is signed. The CFAs were not served until two-and-a-half months after their execution. However, having regard to the circumstances, which included the Plaintiff’s significant experience in legal matters, past dealings with the Defendant, and substantial opportunity to revisit and annul the CFAs following service, the Court held that imperfect compliance had not caused any harm to the Plaintiff and was not fatal to the CFA’s validity.
Finally, the Court held that statements in the CFA as to the nature of the claim and circumstances under which fees were to become payable, required pursuant to Rule 10.7(2)(c) and (d), were sufficiently clear to enable enforcement.
As to the Defendant’s technical defences, the Court held that the review was not out of time since it was filed within 6 months from the date on which the CFAs were terminated, notwithstanding that review documents were not served on the Defendant within that time. The Court did not agree that the review was premature, since the Plaintiff was entitled to seek clarity as to its obligations prior to a triggering event. Since the CFAs were valid, the Defendant’s failure to establish the technical defences argued was inconsequential.
In the result, the CFAs were upheld.View CanLII Details