VAN BRABANT ESTATE (RE), 2013 ABQB 547
10.10: Time limitation on reviewing retainer agreements and charges
13.5: Variation of time periods
The Applicants were five brothers and sisters of a deceased brother who died intestate. The Respondent acted as their counsel in a bitterly fought estate matter, including the successful challenge to the status of an adult interdependent partner claimant. The Applicants applied for an Order pursuant to Rule 13.5 extending the six month time limit created by Rule 10.10, and allowing the Applicants to proceed with a review of accounts rendered by the Respondent.
The Applicants filed their appointment for review of the retainer agreement/lawyer’s charges on October 9, 2012. Out of the sixteen accounts rendered by the Respondent, four were within the six month period, and twelve were not.
The Court looked at whether the accounts rendered by the Respondent were interim or final, and cited Samson Cree Nation v O'Reilly & Associés, 2013 ABQB 350 for the proposition that the six month time limit occurs after the final account has been rendered to the client. Moen J. analyzed the terms of the retainer letter and the accounts rendered. Moen J. found that the retainer letter was less than transparent with respect to whether the accounts were final or interim, and resolved the ambiguity in favour of the Applicants.
Given that the accounts were interim, and that the last account was rendered within the six month limitation period, Moen J. did not need to address the issue of whether the Court should exercise its discretion to extend the time for filing the appointment pursuant to 13.5. However, Moen J. undertook the analysis, in the event that her determination that the accounts were interim was incorrect.
In determining whether the Court should exercise its discretion to extend the time period in this case, Moen J. considered the following factors.
1. Did the delay in filing the taxation cause prejudice to the solicitor?
2. When did the client express the intent to tax the accounts?
3. Were the accounts part of a continuing file and therefore interim accounts?
4. Was there evidence that there was overcharging and that it was just and equitable that the accounts be taxed?
5. Was there evidence that the parties had come to an agreement as to the amount of the account?
6. Did the evidence of the entire relationship between the solicitor and client support any extension of time?
7. Did the Applicant have a reasonable excuse for failing to seek a review within six months?
8. Was there merit to the client’s position that the accounts were excessive?
9. Was the extension request for a significant period of time?
After reviewing these factors, the Court determined that, even if it had been incorrect in characterising the accounts as interim, this was a proper case for the Court to use its discretion to extend the time period.View CanLII Details