Cannon v. Legal Services Society

2006 BCSC 429err2 Cannon v. Legal Services Society IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cannon v. Legal Services Society, 2006 BCSC 429 Date: 20060314 Docket: L040598 Registry: Vancouver Between: Douglas Cannon and Elgin, Cannon & Associates Solicitors And: The Legal Services Society of British Columbia Client Before: Registrar Blok Reasons for Decision Counsel for the Solicitors D W. Larson Counsel for the Client D. MacAdams, Q.C. Dates and Place of Hearing: November 15 - 17, 2005 Vancouver, B.C. A. Introduction [1] A few years ago approximately 600 Chinese nationals arrived on Canadian shores, the apparent work of an organized human smuggling operation. Three groups arrived on decrepit vessels and a fourth group arrived aboard a container ship. Many of the migrants were held in detention, at least initially, and all or most of them claimed refugee status. [2] The detained refugee claimants were assigned lawyers to represent them. The lawyers were engaged and funded by the Legal Services Society ("LSS"), which itself is funded primarily by the provincial government. [3] Douglas Cannon represented 16 of the claimants. He agreed to provide his services on standard LSS terms and fee tariffs. He submitted accounts pursuant to those tariffs and his tariff accounts were paid in full. However, Mr. Cannon also submitted a claim for extra legal fees, which LSS may pay at its discretion. He claimed $68,052, but LSS paid just $4,800. Therein lies the dispute in this case. B. The Contract [4] The agreement pursuant to which the solicitor provided his services is set out in several documents, including the LSS General Terms and Conditions, the Immigration Tariff, and the Appeals and Judicial Reviews Tariff, all effective January 1, 1999. [5] The relevant terms of the General Terms and Conditions are as follows: General 1. LSS may modify the terms and conditions of the tariff contract at any time, and such modifications take effect upon reasonable notice. 2. A referral lawyer's acceptance of a referral is considered his or her conclusive agreement to represent a client in the case specified on the referral form and bill LSS according to the tariff contract. 3. LSS has sole authority to determine all matters related to legal aid, including clients' coverage and eligibility and appropriate compensation of lawyers. 6. LSS may refuse to pay referral lawyers for legal fees and disbursements related to legal or other services that were - (1) not reasonable and necessary to advance the client's best interests'; (2) performed inadequately; (4) performed contrary to the terms of an LSS restriction on billing privileges. Extra Legal Fees 41. LSS may, at its discretion, pay extra legal fees to referral lawyers under exceptional circumstances. 42. Referral lawyers may, at the conclusion of a case, submit written requests for extra legal fees to the manager of Tariff Services (except on family cases). [6] In the definitions, "extra legal fees" are defined as "legal fees in excess of tariff rates that referral lawyers request from LSS in exceptional circumstances". [7] The tariffs set out various activities and their applicable rates or allowances, which fall into three categories: (1) a fixed sum for an activity, (2) a time-based payment up to a maximum number of hours, and (3) payment on an hourly basis for actual time spent. For the time-based activities the hourly rate is $80. C. Facts [8] Mr. Cannon, who was called to the bar of British Columbia in 1992, testified that his practice is confined to immigration matters and of those matters 50%-75% is refugee work. His present billing rate for regular clients is $200 per hour. His evidence demonstrated that he has considerable expertise in the field and that the Canadian immigration regime is moderately complex. [9] Under the regime that was in place at the time, where a person was detained by immigration authorities a detention hearing had to be held within 48 hours, a detention review had to be held 7 days later, and then further detention reviews had to be conducted every 7 or 30 days, depending on the grounds relied upon by the immigration authorities for the continued detention. Where detention was claimed to be necessary to establish the identity of the person the review period was every 7 days; where it was alleged that the person was unlikely to appear at an upcoming hearing then the reviews had to be held every 30 days. [10] Mr. Cannon said that the work required on the part of these detainees was exceptional because, in the past, few refugees were detained on "identity" or "unlikely to appear" grounds. Only 27 migrants were detained from the first vessel but the immigration authorities detained all of the migrants from the second and later vessels when it became evident that this was part of an organized smuggling effort. Mr. Cannon said that the immigration authorities took a very aggressive approach. All of his clients were detained on "identity" grounds, which meant that there were a great many detention reviews. Ongoing detention meant that there were difficulties communicating with the clients and the detainees suffered unusual hardship due to their continued incarceration. [11] Mr. Cannon gave as an example of a "typical challenging client" a detainee who he identified as Client no. 3. Client no. 3 was a 50 year old woman who had little or no education and who spoke only Fujianese and not Mandarin, which is the language of education and official business in China. Client no. 3 had run afoul of China's "one child" policy and had been threatened with sterilization. [12] Client no. 3 was the subject of three separate LSS referrals, one for the initial detention, one for a judicial review application and a third referral for the purposes of applying to re-open her claim. Client no. 3 was in custody from July 1999 to May 2000, when she was finally released on a $10,000 bond, the adjudicator having been told that Client No. 3 was starting to suffer due to the extended incarceration. [13] For this client Mr. Cannon appeared at 15 detention reviews and visited the client 27 times. The large number of visits was necessary in order to prepare for the detention reviews and for two refugee hearings, to prepare the necessary Personal Information Form (which took a great deal of time due to the client's poor education level and her communication difficulties), and to help her with her mail. [14] Mr. Cannon was aware that the LSS Immigration Tariff allowed lawyers to bill for detention reviews only "when the release is likely due to a change of circumstances". He nonetheless felt compelled to attend all detention reviews because he felt his presence kept pressure on the immigration authorities to discharge their onus of showing that continued detention was necessary, and because detained persons "get desperate and say unwise things", they make statements inconsistent with their prior statements, or they are not treated fairly at the review. Mr. Cannon gave examples of other cases where detainees had been unfairly dealt with, or otherwise disadvantaged, at detention reviews. Even if he concluded that release was not likely he felt his presence at each of the reviews was essential to adequately protect the interests of the clients. He conceded, however, that most other immigration counsel would not provide this level of representation in LSS referral cases and that he knew of no other lawyers who felt obliged to attend every detention review. He said he could only do work at his standard and not at a lesser standard. [15] Mr. Cannon was aware that his billings for these attendances would be limited because of the restrictive wording of the tariff but he pressed forward in the knowledge that he would make a claim for extra fees at the end of the matter. [16] Mr. Cannon spent a total of 208 hours on matters relating to Client no. 3, which at the LSS rate of $80 per hour would translate to fees of $16,640. LSS paid $6,337 and thus Mr. Cannon claimed extra fees of $10,303 for the work for this client. [17] Client no. 6 was another complex case. This client was the subject of five separate referrals from LSS. There were referrals for a refugee claim, a detention hearing, an application to re-open the refugee claim, for judicial review of the refused claim and for an application for admission to Canada on humanitarian and compassionate grounds. This client had 26 detention reviews and Mr. Cannon appeared as her counsel on 11 of these reviews. Client no. 6 began to suffer deteriorating mental health due to her extended detention, which at one point involved a transfer to Prince George, where she was held in a previously-closed jail. Mr. Cannon said it was "nearly impossible" for him to represent her given her state of mental health, and he took numerous steps to have her transferred back to Vancouver. [18] Other clients also required special assistance. One client attempted suicide, one client gave evidence for the prosecution in return for the promise of landed immigration status and one client suffered medically while in custody. [19] Mr. Cannon noted that he achieved substantial success on behalf of his clients. Of approximately 600 claimants only 24 were granted refugee status, a success rate of only 4%. For his clients, of the 12 who showed up for their refugee hearings, 6 were granted refugee status, which was a success rate of 50%. [20] Mr. Cannon made an extra fee request by letter to LSS dated March 14, 2002. The letter runs to 13 pages and is an extensive submission. Mr. Cannon referred to the many difficulties which flowed from the detention of the clients, including the difficulty in preparing Personal Information Forms and the communication difficulties created by the detentions, the relative lack of education of the clients, the need to be vigilant on the weekly detention reviews, the personal and psychological difficulties of many of the clients and inappropriate actions taken by immigration authorities, who devoted "unlimited resources" to oppose these clients. [21] The extra fees request was considered by LSS in accordance with its established practice, which is outlined in Schedule A to these reasons. This practice was not publicized in any way and Mr. Cannon was unaware of it at the time. I should note that this evidence went in by consent. [22] The LSS response was given by James Deitch, manager of tariff services, in a letter dated April 8, 2002. Mr. Deitch indicated that Mr. Cannon's extra fees request had been sent to outside counsel for an opinion. Mr. Deitch referred to efficiencies that would have been gained from handling multiple claims based on commonly cited grounds. He also said: I accept your advice that as a result of the long-standing detention many of these clients were subject to psychological difficulties which necessitated extra time beyond what would be the norm with refugee preparation. I also take into account your advice concerning the many interviews which you attended on behalf of the clients, although I must keep in mind that the obligation of the Legal Services Society is to provide representation which would be expected by an ordinary client of modest means. It strikes me that at some point an ordinary client of modest means would expect to receive advice from counsel as to how to conduct themselves during interviews. [23] Mr. Deitch went on to say that, instead of having counsel present at each interview, advice and instructions might have been given to the clients as to whether and how to respond to questions put to them by immigration officers. Mr. Deitch concluded by allowing an additional amount of $4,800 to reflect Mr. Cannon's efforts and the exceptional circumstances of the cases. He closed by saying: I appreciate that this does not compensate you for all of the time which you have noted as expended in this matter, however, as you are no doubt aware the Legal Services Society is subject to the most significant of budgetary constraints currently and any discretionary awards of extra fees must take into account the current financial circumstances of the Society. [24] Mr. Cannon replied on March 30, 2003, nearly a year later. He rejected the assertion that clients might be instructed how to handle interviews, stating that the clients are "desperate, afraid, and easily manipulated in an unfair manner" in these interviews, and that, unlike in criminal cases, they do not have a right to remain silent. He reiterated his view that the work he did was necessary in the circumstances. [25] The debate between Mr. Cannon and LSS carried on through correspondence until December 2003. [26] As noted earlier, the amount claimed by Mr. Cannon for extra fees is $68,052. The details of the time spent on each client's case, the amounts billed and paid, and the calculation of the extra fees request are set out in a document that is attached as Schedule B to these reasons. Mr. Cannon was paid $57,140, including the $4,800 in extra fees approved by LSS. Mr. Cannon said that most of the work for which the extra fees request was made related to detention reviews and visits in custody. [27] In cross-examination, Mr. Cannon agreed that he had had many LSS referrals in his career and that he was familiar with the contractual provisions in these matters. He was aware that acceptance of an extra fees request was a matter of discretion on the part of LSS and that the financial constraints on LSS could be taken into account by LSS in exercising this discretion, but he said that he thought it would be a discretion that would be reasonably exercised. [28] Mr. Cannon said that he was aware of the unique features of the cases when he took them on. By the time the second vessel arrived, six months after the first one, he had a much better idea of the risks involved. Clients no. 4 to 8 arrived on the second vessel. By the time of the arrival of the third vessel, which brought clients no. 9 to 11 and which occurred ten months after the arrival of the first vessel, Mr. Cannon had a good appreciation of these cases, and he knew at the outset that he would be making an extra fee request for the work done for these clients without knowing what the outcome of that request would be. The final client group (clients no. 12 to 16) arrived 21 months after the first arrivals, and Mr. Cannon agreed that his appreciation of the nature and risks of these cases was at or near its highest by then. D. Jurisdiction [29] At the outset of the hearing counsel for LSS made the preliminary objection that the registrar had no jurisdiction in this matter. I ruled that the registrar does have jurisdiction to conduct a review of an account rendered by a lawyer to LSS. I gave brief reasons for the ruling at the time and indicated that I would expand on those comments in my final reasons. [30] The essence of the LSS argument on this point was that the solicitor had been fully paid according to the terms of the agreement he had with LSS and thus there was no scope for a review by the registrar. Reference was made to Scarisbrick v. Legal Services Society, [1999] B.C.J. No. 2373, where Josephson J. expressed doubts about the jurisdiction to review LSS legal accounts according to what is now s. 71 of the Legal Profession Act, S.B.C. 1998, c 9, doubts which were also expressed by the master (sitting as registrar) below. It appears that Josephson J. may have overcome those doubts only because counsel for LSS conceded the jurisdiction point. The dispute in that case was over the payment of a discretionary fee payable to counsel upon the collapse of a trial. [31] On appeal, the Court of Appeal noted the jurisdiction question but did not decide the issue in view of LSS's concession: Scarisbrick v. Legal Services Society (2003), 9 B.C.L.R. (4th) 219, 2003 BCCA 2. [32] In the present case counsel for LSS argued that the concession made in Scarisbrick was not made here and thus the cautionary words expressed by the courts in that case ought to result in the conclusion that there is no jurisdiction to review accounts rendered to LSS. [33] Counsel for Mr. Cannon stated that the question whether the solicitor had been fully paid under the terms of the agreement was very much in issue. Had the Legislature not wanted LSS bills to be reviewed by the registrar it would have been a simple enough matter to have ousted jurisdiction by way of a provision of the Legal Services Society Act, R.S.B.C. 1996, c. 256. [34] It was, and is, my conclusion that a registrar has jurisdiction to conduct a review in order to ascertain whether the solicitor has been properly paid under the terms of a fee agreement: Doig v. Davidson Muir (1998), 48 B.C.L.R. (3d) 53, 158 D.L.R. (4th) 1, [1999] 9 W.W.R. 99, 20 C.P.C. (4th) 26 (C.A.); Coad v. Rizk (1999), 68 B.C.L.R. (3d) 340 (S.C.). Since it is not agreed that the solicitor has been fully paid under the terms of the fee agreement then it follows that I have jurisdiction to determine that issue. [35] In my view the question in this case is not one of jurisdiction, as such, but rather is a question of the scope of the review. E. Positions of the Parties (a) The Solicitor [36] The solicitor submitted that this review ought to be governed by the terms of s. 71(2) of the Legal Profession Act, S.B.C. 1998, c. 9 (the "LPA"), which reads: (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. [37] The solicitor argued that if, under this provision, a registrar determined that certain services were "necessary and proper to conduct the proceeding" then the registrar had to proceed to consider a reasonable fee for those services even if the client regarded them as unnecessary, and irrespective of the terms of the retainer between solicitor and client. [38] The attendance by Mr. Cannon at all detention reviews was reasonably necessary and proper, so it was submitted, as were all of Mr. Cannon's meetings with the detainees. This necessity was reinforced by the wording of the LSS governing statute in force at the time of these events, the Legal Services Society Act, R.S.B.C. 1996, c. 256 (the "1996 LSSA"), which stated the objects of the LSS, in part, as follows: 3 (1) The objects of the society are to ensure that (a) services ordinarily provided by a lawyer are afforded to individuals who would not otherwise receive them because of financial or other reasons. [39] The requirement to attend detention reviews was said to flow from s. 3(2) of the 1996 LSSA, which provided as follows: (2) The society must ensure, for the purposes of subsection (1)(a), that legal services are available for a qualifying individual who meets one of more of the following conditions: (b) may be imprisoned or confined though civil proceedings. [40] The solicitor noted that while the terms of the contract in this case contained an element of discretion in considering a request for extra fees, s. 71(5) of the LPA gave the registrar free rein in assessing an appropriate fee. Section 71(5) reads as follows: (5) The discretion of the registrar under subsection (4) is not limited by the terms of an agreement between the lawyer and the lawyer's client. [41] The solicitor therefore submitted that the contract need not govern the result, that it was merely another factor to be considered in reviewing the account rendered by the solicitor and, in all the circumstances, very little deference should be given to the LSS decision on extra fees in this case. [42] The solicitor also argued that the exercise of discretion by LSS on the matter of extra fees was incorrect, unreasonable and based on irrelevant circumstances. (b) Legal Services Society [43] LSS argued that while s. 71(5) of the LPA provided that the registrar's discretion was not limited by the terms of an agreement, it did not permit the registrar to ignore the terms of an agreement. Here, there was a contract freely entered into and no compelling reason had been given for departing from it. The LPA requires that the registrar consider all of the circumstances, including the terms of any agreement between the parties and, in this case, the "special character" of the LSS contract, as it was so described by Esson J.A. in Scarisbrick v. Legal Services Society, supra, at para. 10. [44] Other circumstances which had to be taken into account included the special nature of LSS as a client and the internal review procedure within LSS in dealing with applications for extra fees. As to the former, it was noted that LSS is an agency established to carry out a governmental social program and to enable the government to carry out its constitutional obligations to provide legal aid. Even under the 1996 LSSA, which imposed on LSS some mandatory services that it had to provide, the Supreme Court of Canada said (in the context of LSS services for prison disciplinary proceedings): The Society's Discretion 18. The expression "services ordinarily provided by a lawyer" in s. 3(1)(a) is broad enough to include everything from preliminary advice to counsel work at a hearing. Section 10 provides that the Society has the authority to determine the priorities and criteria for the services "it or a funded agency provides" under the Act. In the case of mandatory services, the level of service is essentially determined by the exigencies of the situation confronting the applicant, not the size of the Society's bank account. If the province considers the plan is too expensive, it will have to amend the legislation to cut back on the provision of mandatory services. Nevertheless, the Society, correctly in my view, recognizes that part of the ordinary services provided by a lawyer to a client is an assessment of the cost effectiveness of varying levels of service. Few clients of ordinary means are prepared to throw away private money on legal fees without regard to the merits or other circumstances of a case. It should be equally undesirable to throw away public money. 19. The Society has recognized this reality of lawyer-client relationships in its working definition of the appropriate level of legal services. It aims to provide legal services "at least equivalent to that which a reasonable person of average means would expect to receive from a properly instructed competent member of the legal profession" (White Paper: Core Services of the Legal Services Society of British Columbia (1994)). This would not necessarily amount to legal representation at the hearing, although it might very well do so. When legal representation at the hearing is that which a reasonable person of average means expects to receive, the Society is under a statutory duty to provide counsel at the hearing, despite its understandable concern about budgetary limitations. Winters v. Legal Services Society, [1999] 3 S.C.R. 160 at 170-171, 73 B.C.L.R. (3rd) 193, 177 D.L.R. (4th) 94, [1999] 9 W.W.R. 327, 137 C.C.C. (3rd) 371. [45] Thus, it was argued, LSS had the discretion to decide that there need be no attendances at all detention reviews. [46] The special nature of LSS as a client was also highlighted by Josephson J. in Scarisbrick v. Legal Services Society, supra, where he said (at paras. 16 and 17): [16] I am uncomfortable dealing with the matter under s. 79 [now s. 71] of the Legal Profession Act. On the surface, it is a contractual issue between the parties. However, with the concession by L.S.S. before the Master and before me, that it may be dealt with by way of such a review, I will attempt to do so. [17] Policy reasons explain my reluctance. Legal Services has a statutory mandate to provide legal services in certain circumstances. It provides a tariff for those who undertake to provide legal services. If that tariff were subject to s. 79 review, the result would be most unfortunate. A lawyer entering into such a retainer agreement should not be entitled to seek higher fees on the basis of the factors enumerated in s. 79(2). Otherwise, planning and budgeting by L.S.S. would become a complex task. [47] LSS also submitted that it properly exercised its discretion on the extra fees request, doing so in accordance with the practice outlined in Schedule A to these reasons. The solicitor was therefore fully paid in accordance with his contract. Moreover, in allowing a payment under the extra fees provision LSS was recognizing the extraordinary nature of Mr. Cannon's services. [48] Counsel for LSS emphasized that LSS had no quarrel with the quality of Mr. Cannon's work and that LSS fully appreciated the contribution made by Mr. Cannon and other lawyers engaged in these matters. F. Discussion [49] At issue in this case is the nature of the review to be conducted where there is an agreement that sets a fee or prescribes a means by which an overall fee is to be set. I would observe that in the vast majority of retainer agreements this issue is not controversial because usually fee agreements do not set the overall fee, as such, but provide for time-based charges at fixed hourly rates. In these cases the registrar reviews the accounts on what is essentially a modified quantum meruit basis pursuant to sections 70 and 71 of the LPA, using the agreed hourly rate as just one of the factors considered. [50] The situation here is different than most because the parties have entered into an agreement that sets fixed amounts (plus the possibility of an additional discretionary payment) for the remuneration of the solicitor. [51] Both parties agree that s. 71 of the LPA applies but they differ markedly on the weight to be accorded to the contractual arrangements between the parties. The solicitor says that I am entirely free to depart from the contract because of s. 71(5) of the LPA; LSS says that lawyers should be bound by their agreements. [52] There are few authorities on point. Both Coad v. Rizk, supra, and Doig v. Davidson Muir, supra, dealt with different situations than that arising here because both dealt with accounts rendered pursuant to agreements to pay for solicitors' services on the basis of time spent at fixed hourly rates. As noted above, reviews of accounts in those types of situations usually differ little from quantum meruit assessments. [53] In Long, Miller and Mullins v. Sawchuk, 2002 BCSC 542, Goepel J. applied the approach used in Commonwealth Investors Syndicate Ltd. v. Laxton (1994), 94 B.C.L.R. (2d) 177 (C.A.) ("Commonwealth No. 2"). In Commonwealth No. 2, the client challenged a contingency fee agreement, arguing that is was neither fair nor reasonable. The case was decided in the context of a former statutory provision dealing with fairness and reasonableness of fee agreements (and not, as here, with reviews of accounts), a provision where "reasonableness" was not to be judged only at the time the agreement was made (as it is now). While acknowledging that it dealt with a somewhat different situation, Goepel J. concluded that Commonwealth No. 2 set out the appropriate criteria which a registrar should follow when reviewing bills rendered pursuant to contingency fee contracts under s. 70 of the present legislation. Although Long, Miller and Mullins v. Sawchuk dealt with a contingency fee situation, I see no material distinction between a contingency fee contract and the contract in the present case, which also sets out the means of calculating an overall fee. [54] In Commonwealth No. 2 the court said (at p. 187): While the Yule principles furnish useful categories to consider in a matter of this kind, I am not persuaded that the "Registrar's" process asserted by Mr. Nathanson is the proper way to determine the reasonableness of a fee in a case of this kind. Instead of making such an assessment, I believe this Court, particularly, must remember its task. This is not to fix a fee either by a reconsideration of all the evidence and the application of judgment or arbitrarily, however one characterizes such a process, but rather to decide whether the agreement operates reasonably in the context. All the circumstances must be considered, including the Yule factors, the risks and expectations, and the terms of the bargain which is the subject matter of the inquiry. With all this in mind, the court must then ask, as a matter of judgment, whether the fee fixed by the agreement is reasonable and maintains the integrity of the profession? In other words, I think the amount payable under the contract is the starting point for the application of the court's judgment. [55] The starting point, then, is the contract and is not the "reconsideration of all the evidence and the application of judgment" through a "registrar's process", which was, in essence, the approach urged by the solicitor in this case. [56] But a consideration of the fees payable pursuant to the contract raises a further issue: what approach is to be taken on the discretionary payment provision? As Southin J.A. indicated in Doig v. Davidson Muir, supra at para. 23, in cases involving a fee contract one must look to see if the client has been billed (or conversely, that the solicitor has been paid) in accordance with the contract. It is at least arguable that the solicitor would not have been paid in accordance with the contract if LSS did not properly exercise its discretion in considering a request for extra fees under this provision. Mr. Cannon argued that the various circumstances of the case, together with the application of s. 71(5) of the LPA, meant that very little deference ought to be accorded to the exercise of discretion by LSS and that I might freely substitute my own discretion in the matter. LSS argued that I should interfere only if the exercise of discretion was shown to be "clearly wrong". [57] Although there are many cases dealing with the degrees of deference to be accorded to exercises of discretion by inferior courts, administrative tribunals and statutory decision-makers, I am not persuaded that these offer anything more than the most general guidance. Neither party provided any authority dealing with the approach to be taken where a discretion to make a payment is granted by the terms of a contract. [58] I consider it to be an important fact that, here, a party has entered into a contract whereby he has ceded to another party a discretionary power to make (or not make) a payment. A choice has been made to enter into the contract. Parties dealing with administrative tribunals have no choice but to subject themselves to a tribunal's discretionary powers. The voluntary aspect in this case militates strongly against interference with the exercise of discretion by LSS. [59] The following factors also suggest that substantial deference ought to be given to the exercise of discretion by LSS in dealing with requests for extra fees: (a) clause 3 of the LSS General Terms and Conditions, which states: 3. LSS has sole authority to determine all matters related to legal aid, including clients' coverage and eligibility and appropriate compensation of lawyers. (b) the purpose of LSS and the legal aid scheme as a whole, and the need for LSS to reasonably control the allocation of its scarce resources; (c) the existence of a practice for the review of extra fees requests, whereby requests are reviewed by outside counsel, which provides a check against possible unfairness in the decision-making process. [60] These factors persuade me that a decision by LSS on an extra fees request ought not to be disturbed unless it is shown to be patently unreasonable. The evidence in this case fell far short of establishing this. Even on a lesser standard of review, reasonableness simpliciter, I am not persuaded that the solicitor made out a case for interfering with the exercise of discretion by LSS. Having regard to the terms of the contract (particularly those restricting billings for certain activities) and the circumstances of the case generally I am unable to conclude that the LSS decision on Mr. Cannon's extra fees request was unreasonable. Any lesser standard of review than reasonableness simpliciter would mean that I would be effectively substituting my discretion for that of LSS, an approach which I consider to be incorrect. [61] Finally on this issue, I am not persuaded that LSS based its decision on irrelevant considerations or that LSS failed to take into account the exceptional circumstances of the cases. Indeed, the very payment of extra fees of $4,800 shows that LSS recognized that there were exceptional circumstances involved in Mr. Cannon's efforts on behalf of the detainees. [62] As to the fees generally, it is my view that the fees fixed by the contract, including those fees allowed under the discretionary fees provision, are reasonable in the context of this case. I come to this conclusion after considering all of the circumstances, including those set out in s. 71(4) of the LPA, but I note, in particular, the following: (a) the special nature of LSS as a client and the special character of the contract in question; (b) the contractual limitations on payment for services, particularly attendances at detention reviews, that were known to Mr. Cannon at the time he accepted the referrals; (c) the limited resources of LSS, which no doubt made necessary the payment limitations referred to above, of which Mr. Cannon was aware; (d) Mr. Cannon's knowledge of the nature of the cases he was taking on and, certainly for the latter two detainee groups, the relatively full knowledge he had of the detention strategy of the immigration authorities and the consequences of the ongoing detentions; (e) the discretionary payment of $4,800 made by LSS in recognition of the extraordinary circumstances of the cases in question. [63] In short, the solicitor got what he bargained for, and he should be held to his bargain. [64] To the extent that I need decide this, I find also that the fees fixed by the agreement maintain the integrity of the profession. I express doubt on the relevance of that phrase to the situation in this case because it seems to me that this comment of the Court of Appeal in Commonwealth No. 2 would apply primarily, if not exclusively, to a situation where a lawyer was seeking to enforce a contract for fees rather than to bypass it. [65] I also doubt that s. 71(5) of the LPA, which provides that a registrar's discretion in fee reviews is not limited by the terms of an agreement between lawyer and client, was intended to provide an avenue for lawyers to seek higher fees than those provided by their agreements. Josephson J. was apparently of a similar view in Scarisbrick v. Legal Services Society, supra, where he said (at para. 17); [17] Policy reasons explain my reluctance. Legal Services has a statutory mandate to provide legal services in certain circumstances. It provides a tariff for those who undertake to provide legal services. If that tariff were subject to s. 79 review, the result would be most unfortunate. A lawyer entering into such a retainer agreement should not be entitled to seek higher fees on the basis of the factors enumerated in [s. 71(4)]. Otherwise, planning and budgeting by L.S.S. would become a complex task. (emphasis added) [66] Although I have not accepted the solicitor's submission that I should approach this matter by reviewing the accounts according to the criteria in s. 71(4) and with little weight to be accorded to the terms of the contract, I feel compelled to comment on one aspect of that submission. The solicitor argued that a registrar may allow fees for services that are found to be "necessary and proper" irrespective of the terms of the retainer. I disagree. A client has the right to instruct his lawyer in advance that the lawyer is not to perform certain services or, if he does, he will not be paid for them. As an example, suppose for reasons of economy a client instructs his or her counsel not to attend examinations for discovery of other parties on a so-called "watching brief", something the lawyer feels is absolutely necessary in the circumstances. On the submissions made by Mr. Cannon the lawyer could attend anyway and seek payment for those attendances because they were "necessary and proper". This cannot be correct. [67] The situation is little different in the present case. Through the Immigration Tariff LSS and its referral counsel have agreed that payment for attendances at immigration detention reviews will only be made "when the release is likely due to a change in circumstances". In effect, LSS has made a determination of "necessity" and lawyers accepting LSS referrals have agreed with that determination. [68] If lawyers feel they cannot discharge their professional obligations under constraints imposed by clients then their remedy is to decline the retainer or to withdraw; their remedy is not to wait until the end of the matter and ask that the registrar override the client's instructions. F. Conclusion [69] Mr. Cannon's claim for fees in addition to those already paid is dismissed. LSS is entitled to costs, if sought. [70] None of my comments should be taken as any criticism of the services of Mr. Cannon, who showed obvious dedication and skill on behalf of his detainee clients. Lawyers who take on LSS referrals toil selflessly on behalf of the most unfortunate in society for remuneration that is markedly lower than the going rate. However, the solution to the chronic underpayment of LSS counsel lies not through review proceedings before the registrar but through political avenues. "District Registrar Murray B. Blok" March 17, 2006 - Revised Judgment On page 17, paragraph 53, the neutral citation number in line one should read: "In Long, Miller and Mullins v. Sawchuk, 2002 BCSC 542, Goepel J. applied the approach " April 5, 2006 - Revised Judgment On page 24, paragraph 68, the second line should read: " by clients then their remedy is to decline the retainer or to withdraw; " Schedule A EXTRA FEES REQUEST PRACTICE 1. The LSS does not have a written procedure or policy to deal with extra fees requests. It is a practice only. 2. The practice is not recorded or published and is not ascertainable without discussing it with LSS officials. 3. The practice at the time of Mr. Cannon's assessment was: · A lawyer's bill with extra fees request is processed through the computer system to determine that tariff items are properly claimed. If there are any irregularities, the matter is referred to a staff member for a manual review of the tariff account items · The request for extra fees is sent to outside counsel for review · Outside counsel provides their opinion on the extra fees request either by drafting a letter to counsel over either their name or the name of the LSS staff person or in the form of a memo to the LSS staff person. In the event a memo is provided, the LSS staff person would draft a letter to counsel advising of the decision on extra fees · If counsel communicated they were unhappy with the decision, a further review would be made to the Manager of Tariff Services. The Manager would follow an informal review procedure, consulting with other LSS staff members. The Manager of Tariff Services would then make a decision. There was no further review of this decision. 4. Up until 2002, there would have been the possibility of a further review to the Director of Tariffs. However this position was abolished in 2002. 5. Up until 2002, the Manager of Tariff Services could also consult on implementation of policy with the Immigration Tariff Committee comprised of CBA members of the Immigration Bar. Mr. Deitch cannot recall the matter of an extra fees request being reviewed by the Immigration Tariff Committee. 6. Currently, the LSS staff person responsible for the final decision is the Manager of Civil Law (presently David Griffiths). Schedule B Client Bill Date Total Hours Total Fees Billable Less Fees Paid Fees Owing G.S.T. Total Claimed 1 8/4/03 102.0 8160 (2808) 5,352 374.64 5,726.64 2 8/4/03 136.4 10,880 (4240) 6,640 464.80 7,104.80 3 8/4/03 207.8 16,640 (6337) 10,303 721.21 11,024.21 4 8/4/03 52.7 4,216 (1596) 2,620 183.40 2,803.40 5 8/4/03 71.1 5,688 (3177) 2,511 175.77 2,686.77 6 8/4/03 223.4 17,840 (5946) 11,894 832.58 12,726.58 7 8/4/03 43.9 3,512 (1242) 2,270 158.90 2,428.90 8 8/4/03 52.2 4,176 (1494) 2,682 187.74 2,869.74 9 8/4/03 116.6 9,360 (4312) 5,048 353.36 5,401.36 10 8/4/03 45.7 3,656 (1521) 2,135 149.45 2,284.45 11 8/4/03 271.7 21,760 (7784) 13,976 978.32 14,954.32 12 8/4/03 42.1 3,368 (2844) 524 36.68 560.68 13 8/4/03 60.1 4,808 (2592) 2,216 155.12 2,371.12 14 8/4/03 46.7 3,736 (1845) 1,891 132.37 2,023.37 15 8/4/03 35.0 2,800 (1665) 1,135 79.45 1,214.45 16 8/4/03 57.4 4,592 (2937) 1,655 115.85 1,770.85 STtl. 1564.8 125,192 ‑52340 72,852 5,099.64 77,951.64 (Extra fees) ‑4,800 (4,800) (336.00) (5,136.00) Totals 9/17/03 1564.8 125,192 (57,140) 68,052 4,763.64 72,815.64