Date: 19980302
File No: 9701-10595
IN THE COURT OF QUEEN'S BENCH OF ALBERTA
JUDICIAL DISTRICT OF CALGARY
BETWEEN:
MAVIS E. WELSH
Plaintiff
-and-
MR. PETER D. JONES
Defendant
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REASONS FOR DECISION BY
MASTER L. ALBERSTAT Q.C.
_____________________________________________________________________
[1] This is an application by a client to enforce a taxation.
[2] The client paid the lawyer's bill. The client then taxed the lawyer's account. The account was taxed down in an amount slightly over $1800.00.
[3] The client now applies for judgment for the amount taxed off.
[4] Rule 651 says:
651.(1) Where the court has ordered the delivery of a taxable bill or the taxation of a bill, it may provide that the bill is to be paid upon taxation, in which case it becomes a judgment of the court upon taxation.
(2) Upon taxation payment of any other bill of costs may be enforced upon the order of the court to be obtained on notice.
[5] The client argues that since a lawyer can apply to have his or her bill of costs enforced by order, that the same holds true or ought to hold true for a client.
[6] The court often hears applications by lawyers to have their taxed bills enforced as a judgment of the court. It is a common application. The reverse is not common. This is the first application by a client to have a taxation of a lawyer's account enforced as a judgment I have encountered. When a lawyer's account is taxed down, and the lawyer fails to pay, a complaint to the Law Society usually brings about a quick response. What makes this matter different is that since the account was taxed the lawyer is no longer practising law, and the Law Society has no control over the lawyer.
[7] The rule under which lawyers apply to have their taxed bills enforced as judgments seems to apply only to lawyers taxing a bill. In any event that is how it has been interpreted and treated by practise and usage.
[8] The question is whether a client can avail him or herself of the same rule?
[9] Rule 4 says:
As to all matters not provided for in the Rules the practice as far as may be shall be regulated by analogy thereto.
[10] The respondent argues that there is a provision provided for by the client and that is to sue for the amount taxed down. I reject that argument.
[11] A lawyer may tax a bill either before or after payment although usually the taxation is prior to payment.
[12] A client may tax a bill of a lawyer either before or after payment. If the bill is taxed prior to payment the lawyer may then apply under rule 651, to have the taxation enforced as a judgment.
[13] If a bill is taxed after it is paid, and is taxed down, the payment is an overpayment. The person having made the payment is entitled to be repaid the amount overpaid.
[14] If a lawyer can have an unpaid taxed bill enforced as a judgment pursuant to rule 651 then why can not a client have the overpayment enforced as a judgment? I cannot see why that should not be the case applying rule 4.
[15] It is therefore ordered that Mavis E. Welsh be allowed to enforce the over payment of Peter D. Jones and is therefore awarded a judgment in the amount of $1821.67.
DATED at Calgary, Alberta this 2nd day of March, 1998.
_____________________
L. Alberstat Q.C.
Master in Chambers
