Officer is integral to appellate process but not owed deference in traditional sense: court
The Court of Appeal of Alberta has rescinded a case management officer’s decision to hold three separate appeals in abeyance pending resolution of a fourth unrelated appeal, finding it was not in the interest of justice.
In Tallcree First Nation v Rath & Company and Rath, 2021 ABCA 360, the applicants engaged the services of the respondents for an agricultural benefits settlement, which contained a 20 per cent contingency fee. However, when the applicants requested a contingency fee amounting to $11.5 million, the respondent questioned its reasonableness before a review officer, who upheld the fee as it was “not clearly unreasonable.”
The respondent appealed the decision before the Court of Queen’s Bench, which revoked the review officer’s earlier ruling (revocation decision) and set the fees at $3 million (quantum decision). The applicant requested that the trial judge recuse himself on the ground of bias, but he declined (recusal decision) and asked the parties to make submissions relating to the proper recipient of the fee considering the funds were held in trust (repayment application).
The applicants appealed three decisions, which they claimed should be heard before the repayment application is adjudicated. The case management officer disagreed and held the appeals in abeyance pending the determination of the repayment application to avoid litigation by installment. She further reasoned that the repayment application decision could impact the quantum decision.
The applicants filed an application before the Court to rescind the decision of the case management officer, asserting that the repayment application “deals with a discrete question that is not related in substance to either the revocation or quantum decision,” and since no party may appeal, the delay is not in the interests of justice.
“[Case management officers] are valued members of the registry office … and [are regarded as] an integral and indispensable part of the appellate process,” said Justice Thomas Wakeling, the author of the Court of Appeal’s decision. “But case management officers are not judges,” he said, and while they are not owed deference in the traditional sense, “a judge asked to rescind a decision of a case management officer would be well-advised to pay careful consideration to that decision and any reasons for it.”
But the Court agreed with the applicants and concluded that “there is no reason to prevent the three existing appeals from proceeding to a hearing.”
The repayment application dealt with the appropriate mechanism for repaying legal fees. This was unrelated to the other appeals, which tackle whether it was an error to reverse of the review officer’s decision, set the fees at $3 million, and whether the trial judge’s decision raises a reasonable apprehension of bias, said the Court. Further, should the Court allow either the revocation or recusal appeals, the repayment application may be rendered moot or must be decided by another judge, said the Court.
E.H. Molstad of Parlee McLaws LLP appeared for the applicant, and P.J. Faulds of Field Law appeared for the respondent.
