WILLIER v MCGURK, 2015 ABCA 299
10.2: Payment for lawyer’s services and contents of lawyer’s account
10.26: Appeal to judge
14.5: Appeals only with permission
The Plaintiff appealed the Decision of a Review Officer in respect of legal accounts. The Chambers Justice upheld the Decision and the Plaintiff sought permission to appeal to the Court of Appeal. As a preliminary matter, Justice Veldhuis considered whether new evidence could be adduced on an Appeal under Rule 10.26. Veldhuis J.A. noted that, even if Rule 10.26(3) allowed new evidence on an appeal from a Review Officer’s Decision, the Plaintiff’s affidavit evidence was deficient: the Affidavit was not served within a reasonable time prior to the Appeal; it contained “false, self-serving or unsupported assertions”; and it raised new accusations not heard or considered by the Review Officer. The Chambers Justice had not erred in refusing the admission of new affidavit evidence.
Justice Veldhuis also considered the test for permissive Appeals under Rule 14.5 and noted that a Court will assess a number of factors including: (i) whether there is an arguable case, having regard to the standard of review on Appeal; (ii) whether there is a question of law or jurisdiction at issue; (iii) whether the law or precedent is of importance to others or the public; (iv) the practical effect on the parties; (v) whether there will be undue prejudice to a party; (vi) whether there is a bar to the appeal; (vii) whether the expense of a further Appeal is commensurate with the value to be gained from an Appeal; and (viii) the standard of review on the Appeal if leave is granted.
Justice Veldhuis also noted that a Review Officer’s Decision will be given deference, and Appellate interference will only be justified where the Review Officer operated on wrong principles or made an error of fact. Her Ladyship denied leave to appeal as the Applicant failed “the most important” element of the test, a reasonable prospect of success on Appeal.View CanLII Details