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.
