SAMSON CREE NATION v O’REILLY & ASSOCIÉS, 2013 ABQB 350
10.10: Time limitation on reviewing retainer agreements and charges
15.2: New rules apply to existing proceedings
15.6: Resolution of difficulty or doubt
This Decision dealt with two Applications regarding the taxation of legal accounts submitted by the Respondent law firms (“O’Reilly” and “Parlee”) to the Samson Cree Nation (the “Nation”). The Nation filed Applications for Taxation of its lawyers’ accounts arising from two prior Actions, and served the Appointments for Taxation pursuant to former Rule 647. Some of the accounts dated back as early as 1989, with the most recent accounts being rendered to the Applicant on October 31, 2009 (by Parlee) and June 19, 2008 (by O’Reilly). Counsel for the Respondents raised issues relating to the validity of the Appointments arising from the limitation periods for seeking Taxation, and as a result the Nation filed the Applications to determine the validity of the Appointments.
Associate Chief Justice Rooke determined that, under the circumstances, former Rule 647 applied to the determination of the limitation period, not Rule 10.10. In arriving at this conclusion, Rooke A.C.J. acknowledged that new Rule 15.2 states “these rules apply to every existing proceeding”; Associated Chief Justice Rooke further acknowledged that, under Rule 15.6, the Court may apply the former Rules to matters in a proceeding commenced before the new Rules came into effect. However, His Lordship ultimately determined that former Rule 647 ought to be applied in this case, stating:
How can it be possible that the validity of documents, filed December 3 or 10, 2009 under the old Rules, could be determined by rules that did not come into effect until 11 months later? One needs to know the validity of documents at the moment filed, not some later time.
Based on the limitations set out in former Rule 647, Rooke A.C.J. determined that the Nation’s Appointment for Taxation was outside the time period for all of the O’Reilly accounts, and therefore none of them could be taxed. With respect to the Parlee accounts, the Court held that the Nation had the right to continue with the Taxation of accounts dated from January 9 to October 31, 2009 but no other accounts, as they fell outside the limitation period set out in former Rule 647.
The Nation had argued that because some of the accounts were within the limitation period, they should be allowed to tax all the accounts going back to the beginning of the retainer, since it was essentially all one contract. Rooke A.C.J. rejected this argument stating:
The retainers were not whole contract or entire contract retainers, and the periodic (usually monthly) accounts rendered were neither interim nor provisional accounts, and therefore contained no right to tax back to the beginning of the retainer based on the last account issued.