Index

April 15 , 2021

Death and After-Life of Contingency Agreements


February 22 , 2021

Legal Analysis


February 2 , 2021

Costs Clarified at Last


January 4 , 2021

Urgent!


December 10, 2020

Traps and Confusion in Service Times


November 24, 2020

Don't Cut Corners


October 2 , 2020

Consent Orders


August 4 , 2020

Electronic Hearings


July 21, 2020

Ceasing to Act


June 29, 2020

Writing Skills


June 29, 2020

Keeping Up With the Law


June 22, 2020

Assets as a Test for Security for Costs


June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2021 J.E. Côté

DEATH AND AFTER-LIFE OF CONTINGENCY AGREEMENTS

Review officers dealing with any kind of a retainer or fee agreement between client and lawyer sometimes face some detours. The officers are not supposed to interpret the agreement, and have to leave that to a judge, which can be very slow. It is almost like a suit bouncing back and forth between Chancery and Queen’s Bench before the Judicature Acts of 1875. A very recent Court of Appeal decision ameliorates that problem two ways.

First, an important issue is whether a contingency agreement contains all the provisions required by the Rules, especially R. 10.7. The Court of Appeal holds that that is a simple question of fact, open to the review officer, indeed on which he or she is owed strong deference on appeal. It is not a question of interpretation.

Second, if the Rules make the agreement “unenforceable” (e.g. because it lacks some mandatory contents), it is unenforceable in both directions. Neither party can enforce it. Old case law suggesting a one-sided effect is overruled. The client cannot insist, for example, that he need pay nothing because the law firm achieved no success. Or pay a mere pittance because there was small success.

However, the unenforceable agreement is not irrelevant. Even if one party terminated it. Rule 10.8 says that the law firm is entitled to fair compensation, and many things are relevant to that. One is the client’s reasonable expectations. And the agreement, though unenforceable, has some relevance to expectations.

See Betser-Zilevitch v. Prowse Chowne 2021 ABCA 129, Edm 2003 0226 AC (Apr 12).

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.