Index

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

© 2016-2019 J.E. Côté

More Dangers in Oral Fee Agreements

 

A recent decision containing much very dubious law creates grave retroactive dangers for every Alberta lawyer hoping to be paid by a client. Not having a written retainer agreement is usually permitted by law. But it was always dangerous. Now it is extremely dangerous, because review officers will feel obliged to follow this decision by one judge.

The new proposition most likely to astonish lawyers, is this. An agreement for a commission (percentage) fee in a commercial or land transaction, is a contingency agreement needing many special formalities, if there was any uncertainty in result or amount. No history or authority at all is cited for that proposition. A concession by one party is no basis for a proposition of law.

It is possible that some factual aspects of this decision may have been correct, though even those parts contain some puzzling passages.

But the various legal propositions in the decision, both those expressly proposed and those assumed, would create very large interlocking problems. These propositions are contrary to clear Alberta authority. Much of that authority is from the Alberta Court of Appeal, even once the Supreme Court of Canada. For most of the key propositions of law stated or implied, the decision offers no authority. The two cases quoted are from elsewhere, they seriously contradict each other, and the later one contains but superficial reasoning. Rules of Court contrary to various legal propositions here were not cited, or were brushed past (e.g. R. 10.5).

The many Alberta (or Supreme Court) authorities to the contrary are neither obscure, nor ancient, nor difficult to find. There are many ways to find them, but one easy and obvious way is simply look at the annotations in the Civil Procedure Handbook. See Rr. 10.2, 10.5, 10.7, and 10.8.

This decision is Khan v. Paul A. Kazakoff P.C. 2019 ABQB 168, JCC 1801 00721 (Mar 8).

Warn all the lawyers in your office, especially those who are not litigators. If this decision stands, it is an earthquake. The consequences are not imaginary: some can be seen elsewhere.

– 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.