1.2: Purpose and intention of these rules
1.7: Interpreting these rules
3.26: Time for service of statement of claim
10.10: Time limitation on reviewing retainer agreements and charges
10.13: Appointment for review
10.14: Client-obtained appointment: lawyer’s responsibility
10.17: Review officer’s authority
13.5: Variation of time periods

Case Summary

This is a decision from two appeals relating to a Notice of Appointment filed by the Appellant client, for the review of a retainer agreement and lawyer charges involving the Respondent law firm (the Appointment).

The first decision under Appeal set aside the Appointment because it was filed but not served within six months of the final account being rendered by the Respondent. Instead, it was served ten days prior to the Appointment date (Master Prowse’s Decision).

The second decision under Appeal extended the time for service of the Appointment, notwithstanding that the period for service had expired (Master Farrington’s Decision).

In allowing the Appeal of Master Prowse’s Decision and dismissing the Appeal of Master Farrington’s decision, the Court underscored the tenets of statutory interpretation and the Rules. The Court reviewed the modern approach to statutory interpretations and reviewed foundational Rules 1.2 and 1.7(1), finding that Master Prowse’s interpretation of Rules 10.10 and 10.13 ran contrary to the plain language of the Rules. Master Prowse had interpreted those Rules to mean that an appointment must be filed and served within six months after a retainer agreement was terminated (or a last account rendered) (the Time Frame). The Court found that an appointment must be filed within the Time Frame but need not be served within the same.  The Court also analogized to Rule 3.26 which provides that a Statement of Claim must be served on the defendant within one year after the date the Statement of Claim was filed.

The Court found that Rule 10.13(4) addressed the time requirement for service of an Appointment relative to the review, providing that an appointment must be “served” at least ten days before the appointment date. The Court also emphasized that 10.13, 10.14(3) and 10.17 allow for discretion on the part of a review officer in relation to filing deadlines. 

The Court found that when examined in their entire context, the express words of Rule 10.10 support an interpretation that an Appointment must be filed but not served, within the six-month period articulated in that Rule. The Court added that this conclusion is consistent with a contextual and purposive analysis, while concurrently giving effect to the plain language of the relevant Rules and the authority given the review officer by them.

The Court noted that, having allowed Applicant’s Appeal of Master Prowse’s Decision, the issue of whether the time for service of the Appointment should be extended was moot. The Court added that, even if the Appeal of Master Farrington’s Decision was not moot, the Court would have dismissed that Appeal. Finally, the Court reviewed six non-exhaustive factors to be considered in a Rule 13.5 Application to extend time for reviewing a retainer agreement and/or lawyer’s charges, including: delay, prejudice, first intent to tax accounts, evidence of overcharging, agreement as to amount, and the relationship between lawyer and client (the Factors). The Court ultimately found that, based on its weighing of the Factors, the interests of justice supported an extension of time.

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