The Respondent law firm previously had represented the Applicant. The Applicant filed an Appointment for Review of a Retainer Agreement/Lawyer’s Charges (a “Review”) and the Review Officer referred three issues to the Alberta Court of King’s Bench regarding the interpretation of a retainer agreement pursuant to Rule 10.18.

The first issue was what effect Ministerial Order 27/2020 had on Rule 10.10(2), which provides that a lawyer’s charges may not be reviewed if one year has passed since the account was sent to the client. The Court determined that the Ministerial Order extended the one-year period in Rule 10.10(2) by 75 days and the Review was therefore filed on time.

The second issue was what accounts fell into the review period under Rule 10.10(2). The Parties disagreed as to whether Rule 10.10(2) requires a Review to be filed within one year of the date the account was sent to the client, or if it needed to be both filed and served within one year. The Court noted that Rule 10.13(4) requires a Review and associated materials must be served at least 10 days before the scheduled date of the Review. As such the Court determined that a Review must only be filed within one year and served pursuant to Rule 10.13(4).

Finally, the Court considered whether the Review at issue should be stayed pending the resolution of the Applicant’s claim in negligence against the Respondent. The Applicant argued that there were exceptional circumstances allowing the Court to stay the Review pursuant to Rule 1.4(2)(h). The Court applied the test for staying a proceeding when there is an overlapping proceeding set out in Alberta v AUPE, 1984 ABCA 130, which requires the Applicant to show that: (1) the questions in the Actions are substantially similar; (2) a continuance of the Action sought to be stayed would be oppressive or vexatious to the Applicant or otherwise abuse the powers of the Court; and (3) the Stay would not cause an injustice to the Respondent.

The Court declined to grant a Stay of the Review. The Court noted that there was some overlap in the negligence Action and the Review but not complete duplication. The Court found that continuing the Review would not be oppressive or vexatious to the Applicant or otherwise an abuse of process. Finally, the Court was not satisfied that granting a Stay would not cause injustice to the Respondent. To the contrary, the Court noted that granting a Stay would create a risk that the Respondent would have to wait years for the negligence Action to be completed before the Review was completed.