



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Walker 
          v. Schober,







2008 
          BCCA 19



Date: 20080118

Docket: CA033510

Between:

Kathleen 
    Walker

Respondent

(
Solicitor
)

And

Bernhard 
    Beat Schober

Appellant

(
Client
)




Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Mr. Justice Hall




The 
          Honourable Madam Justice Levine








M. 
          Clemens, Q.C., and

G. 
          Walker


Counsel for the Appellant




G. 
          Turriff, Q.C.


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




November 27, 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 18, 2008








Written 
          Reasons by
:




The 
          Honourable Madam Justice Levine




Concurred 
          in by:




The 
          Honourable Madam Justice Rowles

The 
          Honourable Mr. Justice Hall



Reasons 
    for Judgment of the Honourable Madam Justice Levine:

[1]

This is a dispute between a lawyer (the respondent, Kathleen Walker) 
    and her client (the appellant, Bernhard Schober) over the lawyers legal fees 
    for her work representing the client in a matrimonial dispute.  The client 
    initiated a review of the fees under s. 70 of the
Legal Profession Act
, 
    S.B.C. 1998, c. 9.  The registrar reduced the lawyers fees from $21,055 to 
    $6,000.  The lawyer appealed, and the Supreme Court chambers judge allowed 
    the appeal, finding that the registrar had exceeded his jurisdiction in finding 
    the lawyers conduct most discreditable, and that he had made palpable and 
    overriding errors in his findings of fact.  The client appealed to this Court.

[2]

It is my opinion that the chambers judge erred in finding that the 
    registrar exceeded his jurisdiction and made factual errors.  It follows that 
    I would allow the appeal, set aside the order of the chambers judge, and restore 
    the Certificate of Fees of the registrar.

Background Facts

[3]

The appellant and his wife separated in 1997.  The appellant retained 
    counsel and commenced divorce proceedings in December 2000.  He served the 
    pleadings on his wife in January 2001.

[4]

The appellants wife retained counsel, who filed an appearance on January 
    17, 2001.  On February 2, 2001, the wifes lawyer wrote to the appellants 
    then-lawyer (not the respondent), stating that she was preparing a statement 
    of defence and counterclaim, and requesting that he not take default proceedings.

[5]

The appellants lawyer wrote to the wifes lawyer three times in March 
    2001, suggesting mediation and requesting the wifes statement of defence 
    and financial information.  He received no response.

[6]

In May 2001, the appellant retained the respondent to replace his previous 
    lawyer.

[7]

The appellants main objective in the matrimonial proceedings was to 
    obtain overnight access to his two daughters.  He had regular daytime weekend 
    access, but wanted to extend his access to overnight visits.  He wanted his 
    lawyer to take a more aggressive approach to obtaining some movement on the 
    file.

[8]

The respondent reviewed the appellants file and noted that he was 
    in a position to file for judgment in default of pleadings.  The respondent 
    explained to the appellant the process of proceeding
ex parte
by way 
    of an

application for a desk order divorce.  The parties gave conflicting 
    evidence as to whether she also informed him of other options.

[9]

The respondent filed an application for a desk order for divorce and 
    corollary relief, which was granted on September 5, 2001.  The order provided 
    for joint custody and guardianship of the children, and gave the appellant 
    overnight access on weekends and holidays.  On September 10, 2001, the respondent 
    was informed the order was available and picked it up from the Court Registry.

[10]

The respondent told the appellant about the order, and counselled him 
    not to tell his wife about it until she had done some research on the obligation 
    to provide the order to opposing counsel.  On September 25, 2005, the respondent 
    posted a query on a web board run by the Trial Lawyers Association of British 
    Columbia, asking:

What 
    is my legal, ethical, moral etc. obligations [
sic
] to my client and 
    to opposing counsel to provide them with a copy of the Order before the appeal 
    period is up or at all?

[11]

She received a response the same day, informing her that under Rule 
    60(32) of the Supreme Court Rules, a party who has entered a divorce order 
    must promptly deliver a copy of the order to the other party.

[12]

On September 27, 2001, the respondent mailed a copy of the order to 
    the wifes lawyer.

[13]

On October 9, 2001, the appellant informed his wife that he had already 
    won. Her lawyer had not yet received the order from the respondent.

[14]

The wife retained a new lawyer, who immediately applied to have the 
    order set aside and filed a statement of defence.  The respondent filed a 
    cross-application for interim relief for the appellant with respect to custody 
    and access.  The parties filed a total of 39 affidavits in the course of the 
    ensuing proceedings. Due to limitations on judicial time and a number of adjournments, 
    it took six court appearances before the order was set aside and the issues 
    were settled by an interim order of Master Patterson on December 14, 2001, 
    granting relief more or less in the form it had been granted in the desk order.  
    That interim order has remained in place since.

[15]

The respondent issued 23 accounts for services to the appellant, totalling 
    $21,055.  All the accounts were paid.

[16]

The review of the respondents accounts proceeded over five days in 
    September and October 2004.  Both parties testified, and each called an experienced 
    family law practitioner as an expert.  The registrar reserved, and in written 
    reasons for decision released November 23, 2004 (2004 BCSC 1542), he reduced 
    the respondents fees to $6,000.

Registrars Reasons for Decision

[17]

The registrars review proceeded under s. 71 of the
Legal Profession 
    Act
.  The relevant portions provide:

71(2)    
    Subject to subsections (4) and (5), the registrar must allow fees, charges 
    and disbursements for the following services:

(a)        
    those reasonably necessary and proper to conduct the proceeding or business 
    to which they relate;

(b)        
    those authorized by the client or subsequently approved by the client, whether 
    or not the services were reasonably necessary and proper to conduct the proceeding 
    or business to which they relate.

(3)        
    Subject to subsections (4) and (5), the registrar may allow fees, charges 
    and disbursements for the following services, even if unnecessary for the 
    proper conduct of the proceeding or business to which they relate:

(a)        
    those reasonably intended by the lawyer to advance the interests of the client 
    at the time the services were provided;

(b)        
    those requested by the client after being informed by the lawyer that they 
    were unnecessary and not likely to advance the interests of the client.

(4)        
    At a review of a lawyers bill, the registrar must consider all of the circumstances, 
    including

(a)        
    the complexity, difficulty or novelty of the issues involved,

(b)        
    the skill, specialized knowledge and responsibility required of the lawyer,

(c)        
    the lawyers character and standing in the profession,

(d)        
    the amount involved,

(e)        
    the time reasonably spent,

(f)         
    if there has been an agreement that sets a fee rate that is based on an amount 
    per unit of time spent by the lawyer, whether the rate was reasonable,

(g)        
    the importance of the matter to the client whose bill is being reviewed, and

(h)        the result obtained.

(5)        
    The discretion of the registrar under subsection (4) is not limited by the 
    terms of an agreement between the lawyer and the lawyers client.

[18]

After a detailed review of the evidence, the registrar commenced his 
    discussion with the following comment (at para. 62):

While it is true that this is not the forum for deciding 
    matters of alleged professional misconduct or unethical behaviour, in appropriate 
    circumstances alleged misconduct must be considered in order to come to conclusions 
    about
the necessity and propriety of the work
(see s. 71 of the
Legal 
    Profession Act
), as well as the quality of the work, and to consider, 
    in a global sense, the value of the services that have been rendered on the 
    clients behalf.

[Emphasis 
    added.]

[19]

The registrar found, leaving aside the issue of the propriety of taking 
    proceedings in default, that the strategy was risky, and that the only 
    evidence of a discussion of risk was the lawyers testimony that she told 
    the client that the other party might apply to set aside the desk order.  
    He found there was no evidence that the lawyer had told the client about the 
    specific risk of what actually ensued:  that taking default proceedings might 
    prompt more court proceedings with more expense (at paras. 63-64).

[20]

The registrar concluded (at paras. 65-67, 70):

These risks could have been reasonably identified prior 
    to the implementation of the strategy.  It was at least likely that the obtaining 
    of a desk order would result in an application to set it aside -- indeed, 
    in my view it was almost inevitable that this would occur since the other 
    side was represented by counsel -- but it was at least probable.  Given that 
    the default order involved a substantial change to the custody of and access 
    to children, it also seems likely that the order would be set aside.  Thus 
    proceeding by default was probably going to double the legal expense because 
    there would now be two court applications instead of one, although there was 
    also a chance that the desk order would not be challenged.
If the client 
    had known the risks and attendant costs and approved them then the consequent 
    expense might be defensible.  But he did not.

As well, there were aspects of the solicitors already 
    risky strategy which added to the risks and costs in the case.  For example, 
    the great urgency under which the solicitor did some of her work was largely 
    a consequence of her having proceeded by default.  The aggressive position 
    taken by opposing counsel may well have been another consequence of that strategy.

There was also a risk that proceeding in this manner 
    would erode or perhaps even poison the relationship between the parties.  
    I conclude, as well, that
the element of subterfuge to the solicitors 
    actions concerning the delivery of the order, which I find to be most discreditable,
exacerbated the risk inherent in the strategy as a whole that trust between 
    the parties would be undermined.

. 
    . .

I am satisfied that the issue of access for the client 
    was a relatively straightforward matter that would be well within the competence 
    of any family law practitioner.  It ought to have been resolved by a contested 
    court application.  Though I do not doubt the great industry brought to bear 
    by the solicitor,
the question in this matter is whether the client made 
    an informed choice about the path taken.  I have found that he did not.

[Emphasis added.]

Appeal from the Registrars Order

[21]

The lawyer appealed from the registrars order.  She claimed that the 
    registrar exceeded his jurisdiction in assessing her conduct as most discreditable, 
    and that he made palpable and overriding errors of fact.

[22]

The chambers judge found that the registrar had exceeded his jurisdiction, 
    and referred the matter for re-hearing (2005 BCSC 1648).  The client applied 
    for and was granted leave to appeal to this Court; however, the appeal was 
    stayed pending the determination by the chambers judge of the alleged factual 
    errors (to avoid the possibility of two appeals).

[23]

The chambers judge then addressed the alleged factual errors, and found 
    that the registrar had made three factual errors (2006 BCSC 1691).

Chambers Judges Reasons for Judgment

[24]

On the question of the registrars jurisdiction, the lawyer argued 
    (as on this appeal) that the registrars finding that her conduct was most 
    discreditable amounted to a finding of professional misconduct, and that 
    such a finding is reserved to the exclusive jurisdiction of the Benchers of 
    the Law Society.

[25]

The chambers judge reviewed the authorities cited by the lawyer regarding 
    the broad and exclusive mandate of the Law Society in governing and regulating 
    the conduct of lawyers (see, in particular,
Hoem v. Law Society of British 
    Columbia
(1985), 63 B.C.L.R. 36 (C.A.)), concluding (2005 BCSC 1648 
    at para. 17):

This is to say that the Benchers jurisdiction over the 
    administration of the legal profession is tempered by the appellate function 
    of the courts and, in the matter of the review of lawyers accounts, by the 
    powers vested in the Registrar under sections 70 and 71 of the
Act
.

[26]

The chambers judge noted (at para. 14) that the registrar acknowledged 
    that findings of professional misconduct are reserved to the Law Society. 
    He reasoned (at para. 19) that the registrar had, in effect, misdirected himself 
    by using the word propriety rather than proper, which led him to find 
    that the lawyers conduct was most discreditable.  The chambers judge commented 
    (at para. 21) that similar terms have been used in the case law defining 
    professional misconduct under s. 38 of the
Act
.  He concluded (at 
    para. 22):

There is no question that the Registrars finding that 
    the appellants conduct was most discreditable amounted to a finding of 
    professional misconduct.  That was not the purpose of the Review and it was 
    unnecessary to make such a finding in order to address the matters properly 
    before him.

[27]

The chambers judge found further (at para. 26) that it was not possible 
    to determine the extent to which the registrars finding influenced his decision 
    as to the allowable fees.

[28]

On the issue of the alleged factual errors, the chambers judge accepted 
    the lawyers argument that the registrar made three findings of fact that 
    were contrary to the evidence or were made in the absence of evidence.  These 
    were:

(a) 
           the client was unaware of the consequences of taking default judgment;

(b)        
    the client was worse off as a result of obtaining default judgment; and

(c)        
    the lawyer engaged in subterfuge in failing to arrange for proper delivery 
    of the default judgment.

[29]

The chambers judge ordered that the lawyers appeal be allowed, that 
    the Certificate of Fees signed by the registrar be set aside, that a fresh 
    review be heard by a different registrar, and that the client pay the lawyers 
    costs of the review, including the appeal in Supreme Court.

Grounds of Appeal

[30]

The appellant client appeals from the chambers judges order on the 
    grounds that the chambers judge erred:

(a)        
    in holding that the registrars finding that the lawyers conduct was most 
    discreditable amounted to a finding of professional misconduct and thereby 
    exceeded the registrars jurisdiction; and

(b)        
    in holding that it was not possible to determine from the registrars reasons 
    what fee he might have allowed had he not made the finding of professional 
    misconduct.

[31]

The appellant also claims that the chambers judge erred in finding 
    that the registrar made palpable and overriding errors of fact.

Discussion

[32]

The crux of this appeal is the damage to the lawyers reputation from 
    the strong language used by the registrar to describe her conduct.  The legal 
    basis for her appeal from the registrars order was that only the Law Society 
    may make a finding of professional misconduct, that the registrars description 
    of her conduct as discreditable amounts to a finding of professional misconduct, 
    and that the registrar therefore exceeded his jurisdiction.  The chambers 
    judge agreed with the lawyers argument on this point, and the client says 
    that the chambers judge erred in doing so.

[33]

The chambers judge also agreed with the lawyer that the registrar erred 
    in making findings of fact, and the client says that the chambers judge erred 
    in so finding.  As those facts were the basis for the registrars conclusions 
    about whether the lawyers fees were necessary and proper, I will deal at 
    the outset with that part of the chambers judges decision.

Errors in Findings of Fact

[34]

The standard of review of an appellate court of a registrars findings 
    of fact made on a review of a lawyers account is that of an appeal court 
    generally:  the court will not interfere with the findings of fact unless 
    there was some palpable or overriding error which affected the assessment 
    of the facts or, in other words, the findings of fact appear to be clearly 
    wrong:  see
Pamela S. Boles Law Corp. v. Mathisen
(1998), 19 
    C.P.C. (4th) 78

(S.C.), [1998] B.C.J. No. 976 at paras. 4-5, where 
    Baker J. said:

An appeal from the decision of the Registrar on a review 
    of a bill under the
Legal Profession Act
is not a new trial, or a rehearing. 
    It is a true appeal, in the sense that the court may not interfere with the 
    Registrar's decision in the absence of an error in principle. See
Frost 
    v. Frost
, 56 B.C.R. 30, [1941] 3 W.W.R. 273, [1941] 1 D.L.R. 774, and
Godbout v. Lisson
(1988), 33 B.C.L.R. (2d) 334, (C.A.). Justice Davies 
    of this court elaborated upon this point in his decision in
Klein v. Allin
,
Anderson and Mullen
, (20 March 1997) [April 10, 1997], Nanaimo 007758, 
    (S.C.B.C.) [1997] B.C.J. No. 949. In that case he stated:

The 
    function of the appellate court is to review the record of the proceedings 
    below and to ascertain whether there has been an error in principle. It can 
    make an order that could have been made by the tribunal from which the appeal 
    is taken, or set aside the decision below, and direct a new hearing. It should 
    not interfere with the findings of fact made below unless it be established 
    that there was some palpable and overriding error which affected the tribunal's 
    assessment of the facts. In short, the rule is that an appellate court will 
    not interfere with the findings of the tribunal of fact unless they appear 
    to be clearly wrong.

In particular, the Court of Appeal has emphasized that 
    it is not the role of the court on an appeal from a review of bills for legal 
    services to:

....review 
    and reweigh the evidence and to substitute our view of the evidence and the 
    findings of credibility for that of the Registrar.

Morton v. Harper Grey Easton
, [1996] B.C.J. No. 1144, (9 May 1996), Vancouver CA019125 (B.C.C.A.)

[35]

In my opinion, the chambers judge engaged in reweighing and reassessing 
    the evidence, which was not within his powers as an appellate judge.  Having 
    done so, he concluded that the registrar had not adequately set out his reasons 
    for accepting or rejecting certain evidence (2006 BCSC 1691 at para. 25), 
    and did not make a necessary and specific finding on the credibility of the 
    explanation offered by the appellant solicitor for delaying in providing 
    the desk order to the wifes lawyer (at para. 26).

[36]

The failure of the registrar to address every item of evidence, and 
    to expressly state which of two witnesses he believes, does not make his findings 
    of fact clearly wrong.  The chambers judges criticisms of the registrars 
    reasoning and conclusions simply do not reveal palpable and overriding, or 
    any, errors of fact.

[37]

For example, the chambers judge found that the registrar failed to 
    consider matters that were not in evidence (such as the likelihood that the 
    clients first lawyer had advised him of the consequences of proceeding on 
    an uncontested basis (at para. 12)), and matters that the registrar clearly 
    addressed (the other dynamic and inchoate factors that could always come 
    into play, including the possibility that the other side would concede (at 
    para. 13), addressed by the registrar at para. 65 of his reasons for decision).

[38]

The chambers judge found (at para. 16) that the registrar failed to 
    address the tests under the
Legal Profession Act
in finding 
    that the services were not specifically authorized.  The chambers judge stated 
    that the registrar took the view that his task was simply to decide what 
    was
necessary and proper
 (at para. 17) [emphasis in original].  In 
    fact, the registrars reasons deal at length with the specific question of 
    whether the client had been fully informed and therefore could have authorized 
    the services, concluding (at para. 70) that the client had [not] made an 
    informed choice about the path taken.

[39]

The chambers judge criticized the registrar (at para. 19) for failing 
    to meaningfully address the conflicts in the evidence of the two experts, 
    and (at para. 20) suggested that he speculated about the consequences of 
    taking default judgment.  It is manifest from his reasons, however, that the 
    registrar accepted the opinion of the clients expert, which he summarized 
    (at paras. 54-56):

Mr. Schuman, for the client, opined that it was both 
    unwise and inappropriate for the solicitor to apply for a desk order in the 
    circumstances of the case and, in so doing, she did a disservice to both 
    parties and the process.  Mr. Schuman felt that the solicitor ought to have 
    informed opposing counsel that she was about to apply for a default order 
    or, alternatively, that the solicitor should have proceeded by notice of motion 
    and supporting materials served on opposing counsel.  Mr. Schuman said:

Proceeding 
    as she did, not only increased the financial cost, it potentially and seriously 
    compromised whatever goodwill existed.  It might well have impeded the access 
    variance Mr. Schober was seeking.

Mr. Schuman said that Ms. Walkers conduct was contrary 
    to her clients best interests as well as inappropriate.

Mr. Schuman was of the opinion that there was no doubt 
    that the desk order would be set aside on application by opposing counsel, 
    given that there had been four years of
status quo
between the parties 
    and the desk order represented a sea change in that situation.  Mr. Schuman 
    was of the view that had this matter taken the normal course (that is, by 
    way of a chambers application on notice to opposing counsel), variation of 
    access in Mr. Schobers favour would have been achieved for total fees in 
    the range of $6,000 to $8,000.

[40]

The chambers judge found, finally, that the registrars finding of 
    subterfuge was made without a clear finding on the lawyers credibility.  
    He fails to mention, however, the lawyers admission on cross-examination 
    that her strategy was surreptitious.

[41]

In short, the chambers judges assessment of the registrars factual 
    findings proceeded on a wrong principle.  He failed to apply the proper standard 
    of review, which entails a deferential approach to findings of fact by a taxation 
    officer, and he engaged in new fact finding, including drawing new inferences.  
    In doing so, he seemingly misapprehended some of the evidence.

[42]

I agree with the appellant on this ground of appeal.  The chambers 
    judge erred in finding that the registrar made palpable and overriding errors 
    in his findings of fact.

The Jurisdiction of the Registrar

[43]

The cases cited in support of the exclusive jurisdiction of the Law 
    Society make it clear that the regulation and discipline of members is solely 
    within its domain: see
Hoem
at 40-43;
Wilson v. Law Society 
    of British Columbia
(1986), 9 B.C.L.R. (2d) 260 at 263-64 (C.A.);
Re A Solicitor
(1995), 14 B.C.L.R. (3d) 100 at 106 (C.A.).  
    As noted by the chambers judge (at para. 16), however, citing
Hoem
at 44, the Benchers jurisdiction over the legal profession is tempered by 
    the powers of the registrar as the taxation officer under ss. 70 and 71 of 
    the
Legal Profession Act
.

[44]

Under s. 71(2) of the
Act
, two questions arise:  whether 
    the services were reasonably necessary and proper (s. 71(2)(a)), and whether 
    they were authorized by the client.  In the latter case, it is not necessary 
    to show that they were necessary and proper (s. 71(2)(b)).

[45]

There was conflicting evidence concerning whether the clients consent 
    to the steps taken was informed consent, and thus whether the services were 
    approved or authorized.  The lawyer maintained that the client was fully 
    advised by her of the options and the consequences of the strategy undertaken. 
     The client said he understood neither that he had an option nor that the 
    consequences could include multiple court appearances and increased legal 
    fees.  The registrar found that the client was not fully informed, and could 
    not therefore give informed consent.

[46]

Having found that the client had not authorized the services, the registrar 
    had to determine whether the services were reasonably necessary and proper.  
    He found they were not necessary, because the same result could have been 
    obtained through an ordinary contested application, and they were not proper, 
    because the strategy implemented by the lawyer created a significant risk 
    of more court proceedings and more costs than would have been the case had 
    the desk order not been obtained.

[47]

The registrars comment about the lawyers conduct was directed to 
    her delay in providing the desk order to the wifes lawyer, contrary to, at 
    least, the Rules of Court.  The reference to subterfuge was not inconsistent 
    with the lawyers admission that her strategy not to disclose the order to 
    the wife and her counsel was surreptitious.  These were part of all of 
    the circumstances, which the registrar was required to consider in accordance 
    with s. 71(4) of the
Act
.

[48]

Although the registrars language was strong in tone, all of his findings 
    were made within the context of deciding whether the client had authorized 
    the services and whether they were necessary and proper.  I do not agree 
    with the chambers judge that there is a meaningful difference, in this context, 
    between proper and propriety.  The registrars use of the phrase necessity 
    and propriety does not indicate that he ventured into an inquiry he did not 
    have the jurisdiction to undertake.

[49]

Counsel for the respondent raised a similar argument in
Access 
    Law Center et al. v. Ferriman
, 2006 BCSC 661.  In that case, in assessing 
    the parties credibility, the registrar commented that certain evidence reflected 
    poorly on the credibility of the solicitor, not to mention his professional 
    ethics (at para. 16).  I agree with Melvin J.s comments (at para. 18):

I agree with Mr. Turriff that the matter of disciplining 
    solicitors (subject to a residual power that may rest with the court in dealing 
    with officers of the court) is a matter within the jurisdiction of the Law 
    Society.  However, in the context of determining credibility, in my view, 
    the registrar or any other tribunal of fact is entitled to take into consideration 
    conduct; namely, a person's acts and declarations in determining the credibility 
    of the individual as a witness.  In this respect, I do not find that 
    the registrar's comment concerning professional ethics is inappropriate.  
    She did not make a disciplinary finding.

[50]

Similarly, in this case, the registrar did not purport to decide matters 
    of professional misconduct.  He made findings of fact relevant to the question 
    of whether the services provided by the lawyer were necessary and proper, 
    as required by s. 71 of the
Legal Profession Act
.

[51]

I agree with the appellant on this ground of appeal.  The registrar 
    did not exceed his jurisdiction in commenting on the lawyers conduct.

The Ex Parte Proceedings

[52]

Before concluding, it is worth commenting, in my opinion, on the unfortunate 
    outcome of the strategy adopted by the lawyer, in terms of expense and timeliness, 
    to resolve the narrow issue of overnight access.  The clients frustration 
    with the lack of progress on the matter appears to have overwhelmed the lawyers 
    consideration of the obvious alternative of a contested chambers application.  
    That would have provided notice to the wife and her lawyer that the client 
    was serious about pursuing the matter, and would have brought the matter before 
    the court where it could have been resolved, hopefully without numerous hearings 
    and delay and with a better chance of avoiding the rancour that developed 
    between the parties.

[53]

It seems to me that in matters of custody and access, where the best 
    interests of the child is the question for the court,
ex parte
proceedings 
    should be reserved for cases where there is some real urgency.  And if
ex 
    parte
proceedings are taken in matters of custody and access, as in any
ex parte
proceedings, the applicant must inform the court of all of 
    the material facts.  The facts that there is a dispute concerning the relief 
    claimed, and that the other party has communicated that he or she intends 
    to file a statement of defence, are material.  Where material facts are not 
    disclosed, the order is likely to be set aside on that basis, no matter what 
    substantive relief may have been granted.  The failure to consider these principles 
    were factors that led to the additional time and expense involved in this 
    case.

Conclusion

[54]

The registrar made no errors of fact, and did not exceed his jurisdiction 
    in commenting on the conduct of the lawyer in the context of a review of the 
    lawyers accounts.

[55]

It follows that I would allow the appeal, set aside the order of the 
    chambers judge, and restore the Certificate of Fees of the registrar.

The Honourable 
    Madam Justice Levine

I AGREE:

The Honourable Madam Justice Rowles

I AGREE:

The 
    Honourable Mr. Justice Hall


