Lee J

6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
10.10: Time limitation on reviewing retainer agreements and charges

Case Summary

Lee J. considered an Appeal from the Master’s Decision to grant Summary Judgment to the Respondent/Plaintiff, P & C Lawfirm Management Inc (“P&C”), against both of the Appellants/Defendants Vickea Sabourin (“Vickea”) and Robin Sabourin (“Robin”) (collectively, the “Appellants”) pursuant to a promissory note.

Justice Lee addressed, as a preliminary matter, the Appellants’ provision of additional evidence for the Appeal. P&C objected on the basis that the additional evidence was not relevant and material on the basis that it contained inadmissible parol evidence, was irrelevant, or was simply argumentative. Justice Lee noted that Rule 6.14(3) allows for additional evidence if, in the opinion of the Judge hearing the Appeal, it is relevant and material. In this regard, Lee J. concluded that the two new Affidavits were relevant and material as they addressed the timing of the delivery of the statements of account, taxation, and the scope of the Appellant’s involvement. Accordingly, Justice Lee allowed the two new Affidavits.

Justice Lee noted that the primary issue before the Court was whether the Summary Judgment should have been granted in this matter under Rule 7.3. Both parties agreed that the standard of review on Appeal from a Master’s Decision is “correctness”.

Justice Lee concluded that Summary Judgment was not appropriate in this instance. Justice Lee noted the seminal jurisprudence of Hryniak v Mauldin, 2014 SCC 7 (CanLII) and Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII) emphasizing that there must be “fairness” in the process for both parties. Justice Lee noted, as an example, that the Master found that Vickea was responsible for taxing P&C’s accounts even though at the time the accounts were issued, she had no lawyer representing her and did not know the accounts existed, which was her present defence. Additionally, the Appellants raised arguments surrounding the parol evidence rule and that, at the time the promissory note was signed, nothing was explained by the lawyer they met with.

Justice Lee noted regrettably that, any efforts by Vickea to tax or review the statements of account would likely be “out of time” given the six month limitation of Rule 10.10(2). Justice Lee concluded that the factual issues in dispute, the exceptions to the parol evidence rule and the concept of any oral agreements made in the case between Vickea and the Respondent, possibly limiting the extent and amount of the promissory note, made the case not suitable for Summary Judgment. Accordingly, Justice Lee allowed the Appeal, set aside the Summary Judgment, and awarded Costs to the Appellants.

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