Case Management Officers Critical Role In Court's Business

• Published date: 17 November 2021
• Subject Matter: Corporate/Commercial Law, Corporate and Company Law
• Law Firm: Gowling WLG
• Author: Ms Emily McCartney and Amanda Richards

In Tallcree First Nation v Rath & Company and Jeffrey RW Rath¹, Mr. Justice Wakeling of the Alberta Court of Appeal held that a Case Management Officer (CMO) is not a judge, and reviewing courts do not owe CMOs the same level of deference as they owe to decisions of the lower courts. However, Justice Wakeling reaffirmed the critical role CMOs have in the efficient administration of justice.

Procedural history

In 2015, Tallcree First Nation (Tallcree) entered into a contingency fee agreement (the Agreement) with the law firm Rath & Company, and lawyer Jeffrey Rath (collectively, the Rath Parties). Pursuant to the Agreement, the Rath parties were entitled to 20% percent of any agricultural benefits settlement payment from the Government of Canada to Tallcree. That settlement was ultimately $57.5M, resulting in over $11.5M in fees payable to the Rath Parties after 27 months of negotiations with the Government of Canada.

Tallcree challenged the reasonableness of its Agreement with the Rath Parties. A review officer found it reasonable and allowed the fees of approximately $11.5M.

On appeal, Justice Lee set aside the review officer's decision,² set the fees payable at $3M, and ordered the Rath Parties to repay the difference.³ The Rath Parties appealed, asking Justice Lee to recuse himself because of a reasonable apprehension of bias. Justice Lee declined to recuse himself, and asked the parties to make further submissions on another aspect of the application relating to the proper recipient of the fee refund. Justice Lee further declined to declare his reasons void.⁴

The Rath Parties appealed what the Court of Appeal described as "the revocation, quantum and recusal decisions" and secured a November 1, 2021 hearing date. The Rath Parties argued that the Court should hear their appeals before the adjudication of the outstanding application before Justice Lee regarding the repayment terms. A CMO disagreed and ordered that the appeals be held in abeyance pending Justice Lee's determination of the repayment application.

Pursuant to Rule 14.36 of the Alberta Rules of Court,⁵ the Rath Parties sought rescission of the CMO's decision and reinstatement of the November 1, 2021 hearing date for the three existing appeals or, alternatively, that they be set down for hearing at the earliest possible date.⁶

The rule

Rule 14.36(1), together with section 14 of the Court of Appeal Act,⁷ provides that a CMO may assist with respect to the management of matters before the Court...