In Tallcree First Nation v Rath & Company and Jeffrey RW Rath, 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.
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, set the fees payable at $3M, and ordered the Rath Parties to repay the difference. 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.
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, 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.
Rule 14.36(1), together with section 14 of the Court of Appeal Act, provides that a CMO may assist with respect to the management of matters before the Court and the business of the Court. This authority includes, among many other things: the scheduling of hearings; communicating with parties or their counsel, as appropriate; and managing the progress of the Court's files.
Rule 14.36(3) provides that anyone affected by a direction of a CMO may apply to a single Appeal Judge to have that direction rescinded, confirmed, amended or enforced. Applying the recent decision in Kainaiwa/Blood Tribe v Alberta (Minister of Energy), Justice Wakeling affirmed that CMOs are not members of the judiciary, and Rule 14.36(3) does not use the words "appeal" or "review." Therefore, Applications under the Rule are not "appeals" in the usual sense.
Before granting the Rath Parties' Application for recission, Justice Wakeling provided positive and emphasized that rescinding a CMO's decision is an extraordinary measure:
… while case management officers are not owed deference in the traditional sense, a judge asked to rescind a decision of a case management officer would be well-advised to pay careful consideration to that decision and any reasons for it and keep in mind that the system works most efficiently if decisions of case management officers are implemented and delay is avoided by not encouraging rescission applications.
Nonetheless, Justice Wakeling found that there was no reason to prevent the three existing appeals from proceeding to a hearing given that the determination of one or more of these appeals could render of the application before Justice Lee to determine the repayment terms moot. The Court noted that while a CMO's role is often to avoid piecemeal litigation, in the circumstances hearing the appeal as soon as possible "would be more efficacious," finding that "occasioning delay without a commensurate benefit is not in the interests of justice."
Justice Wakeling's decision provides a useful reminder that although CMO decisions do not attract deference in the traditional manner, a judge hearing an appeal from a CMO's decision must not take rescission lightly. In a legal system that is fraught with delay, unless a Court determines a sincere concern with the administration of justice, or prejudice to a party, it is unlikely to rule against a CMO's decision.
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 Tallcree First Nation v Rath & Co, 2021 ABCA 360.
 Tallcree First Nation v Rath & Co, 2020 ABQB 592.
 Tallcree First Nation v Rath & Co, 2021 ABQB 234.
 Tallcree First Nation v Rath & Co, 2021 ABQB 440
 Alberta Rules of Court, AR 124/2010, r 14.36.
 Tallcree First Nation v Rath & Co, 2021 ABCA 360 at para 34.
 Court of Appeal Act, RSA 2000, c C-30, s 14.
 Kainaiwa/Blood Tribe v Alberta (Minister of Energy), 2020 ABCA 387 at para .
 Tallcree First Nation v Rath & Company and Rath, 2021 ABCA 360 at paras 39-40, citing Kainaiwa/Blood Tribe v Alberta (Minister of Energy), 2020 ABCA 387 at paras 18-20.
 Tallcree First Nation v Rath & Company and Rath, 2021 ABCA 360 at para 41, citing R v Shaw, 2014 ABCA 224 at paras 1-3.
 Tallcree First Nation v Rath & Company and Rath, 2021 ABCA 360 at para 67, citing Alberta Rules of Court, AR 124/2010, r 1.2(1) and Vysek v Nova Gas International Ltd, 2002 ABCA 112 at para 16.