Tallcree First Nation v Rath & Company, 2020 ABCA 433

Permission to appeal is not needed for a chambers judge reserved decision regarding an appeal by an Applicant law firm that entered into a contingency fee with a First Nation for 20% that resulted in around $11 million dollars for a relatively small amount of work. The decision under appeal is not a decision “as to costs alone.” However, the decision under appeal is interlocutory in nature because the chambers judge’s final order on the amount of recoverable fees has not yet been issued. Appeals of interlocutory decisions are generally discouraged. Interlocutory appeals may turn out to be unnecessary and are normally contrary to the Court of Appeal’s policy against litigation by installment.

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Rath & Company and Jeffrey Rath [“Applicants”] apply for confirmation by way of declaration that they have a right to appeal a decision of a chambers judge overturning a Review Officer’s decision that a contingency fee agreement was reasonable. In the alternative, they seek permission to appeal, if their appeal is of a decision “as to costs alone.”

In 2015, Tallcree First Nation [“Tallcree”] entered into a contingency fee agreement with the Applicants, who were retained to settle certain agricultural benefits claims under Treaty 8 made by Tallcree against the federal government. The initial contingency fee agreed to was 20%. The Applicants resolved the agricultural claims quickly, although Tallcree did not receive the payment of $57,590,375 from the federal government until 2018. The 20% contingency amounted to $11,518,075. Tallcree subsequently applied for a review of the contingency fee agreement under the Alberta Rules of Court. The Review Officer was asked to determine whether the 20% contingency fee was reasonable. It appears that all the Applicants did on this matter was file a formal claim, send a three-page settlement letter, and engage in “minor negotiations”.

The Review Officer found that the contingency fee was “not … clearly unreasonable” based on a comparison with personal injury lawsuits in which a 20% contingency fee is commonly charged in clear cases where liability is not in issue. Tallcree appealed the Review Officer’s decision to the chambers judge who revoked the Review Officer’s decision because the wrong test was applied (“clearly unreasonable” as opposed to “reasonable”). The finding that the 20% contingency was the minimum percentage for cases taken on a contingency basis was unsupported by evidence or authority as it failed to account for other considerations relevant to the reasonableness of the contingency fee. The chambers judge the asked for further written submissions on what the Applicant’s recoverable fees should be. A further hearing took place before the chambers judge in 2020, but the chambers judge has reserved his decision.

No appeal is allowed to this Court from a decision as to costs only unless permission to appeal has first been obtained. It is doubtful that the decision under appeal is a decision “as to costs only”. It concerns a dispute about the recovery of lawyers’ fees between a lawyer and his or her client, not the payment of costs between parties to litigation. Even if a Review Officer’s review of a lawyer’s charges to his or her client amounts to “a decision as to costs alone”, a review of a contingency fee agreement does not. A review of lawyers’ accounts is a largely discretionary exercise but a review of a contingency fee agreement for reasonableness raises issues of principle about whether (and when) clients who enter into such an agreement and allow the lawyer to fulfil the contingency can decline to pay the contractually-agreed contingency fee.

The policy behind the rule requiring permission to appeal for “a decision as to costs alone” does not apply to an appeal of a review of a contingency fee agreement. No previous decision of this Court has held that such an appeal requires permission to appeal its predecessors. The decision under appeal is not a decision “as to costs alone.” However, the decision under appeal is interlocutory in nature because the chambers judge’s final order on the amount of recoverable fees has not yet been issued. Appeals of interlocutory decisions are generally discouraged. Interlocutory appeals may turn out to be unnecessary and are normally contrary to this Court’s policy against litigation by installment.

Alberta (CYFEA, Director) v NL, 2020 ABPC 118

This is a decision with respect to ordering costs against the Director of child and family services in Alberta, which is relatively unusual and difficult to obtain. While it is not per se an “Aboriginal law” case, the Court considered the overrepresentation of Indigenous children in protection as a factor in favour of issuing an order for costs under s. 24(1) of the Charter

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A Permanent Guardianship Order was determined as not warranted for a child apprehended by the Director of child and family services in Alberta. The Court orders the child to be returned to the mother [“NL”] over a period of three months pursuant to a Supervision Order. This was necessary because the child had been in the custody of the Director for a period of almost 2 years, and not because of any concern about the mother’s ability to care for the child. Counsel for the mother asks the Court for costs against the Director.

As background, concerns were enough for the Director to properly apply for an apprehension order in 2017 due to numerous medical difficulties that caused concern for health and medical professionals. As well, NL at the time did not seem to be taking the appropriate measures that were suggested. Although there had been previous concerns with respect to NL’s care of her other children in the past, none of the children had been apprehended and issues with respect to drinking, partnership issues and so on, always seem to be resolved and did not appear to be an insurmountable situation. Another issue regarding NL’s care for the child was that medical appointments were located in Red Deer, approximately one hour away from her residence by car. NL does not have a car or driver’s license.

There does not appear to have been any investigation into whether NL was suffering from postpartum depression or at least the anxiety brought on by having the child’s medical problems added on to the fact that she was caring for another child, age three, who had her own medical difficulties. It appears that the medical and psychological experts assumed that what they termed as NL’s passivity or lack of affect, was a personality defect rather than a situational reaction to the stressful situation she found herself in.

The foster mother gave evidence to the child’s present circumstances. She has been the foster parent for the child since he was apprehended at approximately four months of age. The child is a typical energetic, curious, active two-year-old and does not appear to have any difficulty eating, sleeping or anything else out of the ordinary. She is regularly in contact with NL and they share information on the child’s progress and any changes that are necessary with respect to his sleeping eating or activity patterns. This evidence exposes the Director’s evidence as being out of date, yet still having been used to pursue a permanent guardianship order. There was also no evidence before the Court of the child having FASD, nor did the Director provide any evidence that this concern was pursued at all since apprehension.

Effectively nothing was done with respect to re-uniting this family during the whole time the chlid was in care. This is in direct conflict with the Director’s mandated obligations under the CYFEA. Medical information should have been updated to show the child was still in need or the child should have been returned to the mother.

The difficulty in dealing with the question of costs in child protection matters is that there are a number of cases both in Provincial Court and The Court of Queen’s Bench which take differing views with respect to the Provincial Court’s jurisdiction to award costs against the Director in a child protection matter. One may assume that costs is not an issue for child protection litigants because through Legal Aid they get “free” lawyers. This is not actually the case in Alberta as new clients are required to sign documentation acknowledging that they will repay any amounts billed by counsel, prior to counsel taking on their matter. This Court can see no reason why child protection litigants, a significantly large proportion of whom are Indigenous women and men, should be denied court costs in instances of the Director’s failure to carry out its mandate under the CYFEA.

Having found that there is conflicting case law; and having found that the CYFEA remains silent with respect to this issue and thereby creating an apparent conflict; the Court finds that the Respondent’s rights ensured by the Charter pursuant to section 7 and 15 have been infringed or denied. This in turn leads to the Court to considering an appropriate remedy. Section 24 of the Charter states “(1) Anyone whose rights or freedom’s, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. The Court finds that the appropriate remedy for the respondent in this case is an award of damages against the Director in an amount equal to the legal fees the Respondent is required to repay to Legal Aid Alberta.