THE ADVOCATE 35
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production. Assuming that review of such discretionary decisions under
s. 30 is appropriate at all, it is essential that the particular circumstances of
the decision be taken into account. It is wrong for courts to simply assume,
as they have, that it is not possible to assess the reasonableness of legal fees
without access to the billing lawyer’s files.
If an arbitrator has decided, after hearing from both parties, that the
claimant is entitled to an award of actual reasonable legal fees, the claimant
has the onus to prove, first, the “actual” amount of legal fees incurred and,
second, that the amount paid was “reasonable”. To prove the amount paid it
is not necessary to produce the lawyer’s file or a detailed description of the
work done. A sworn statement by the claimant indicating how much has
been paid might be sufficient, though that evidence may be supported by a
sworn statement from the solicitor or an oral representation by counsel who
is member of the B.C. bar that the amounts said to have been paid are correct.
In neither Williston nor Ogopogo was there any suggestion that the
amounts said to have been paid had not actually been paid.
The next question to be considered by the arbitrator is whether the
amount of legal fees actually incurred is “reasonable”. The question is not
whether the fees are reasonable as between the lawyer and the claimant.
The question is whether, as between the claimant and the respondent, the
amount is reasonable, such that the respondent should be required to reimburse
the claimant in full.
Typically, the claimant will, as in Williston and Ogopogo, submit evidence
of the time spent by fee billers and their billing rates. The claimant may or
may not submit copies of the lawyer’s invoices, with or without redactions
to protect privilege, or a brief summary of the role played by each fee biller.
Typically, the claimant will then argue that, given the nature of the case and
the work done by counsel in connection with it, it is objectively reasonable
that the respondent should reimburse the fees actually paid. The respondent,
often without tendering any evidence, will submit that given the
nature of the case and the work done the fees billed are excessive. The parties
and the arbitrator know the nature, complexity and importance of the
case. They know the details of the procedural history. The arbitrator will
have managed the case from cradle to grave, deciding every contentious
procedural application, presiding at the hearing and personally reviewing
any post-hearing submissions. The arbitrator and parties witnessed the
written and oral advocacy work done by counsel, its effectiveness and efficiency,
and its impact on the outcome of the case. Arbitrators are often
themselves experienced counsel, chosen by the parties for that very reason.
When that is the case, they are particularly well placed to assess the reason-