May 17 , 2021

Serving Uncooperative People

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


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

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

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

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

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?



Côté’s Commentaries

© J.E. Côté 2016-2021


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: or phone 780-424-5345.