IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Hungerford Tomyn Lawrenson and Nichols v. Wilson,

 

2011 BCSC 1440

Date: 20111026

Docket: S100618

Registry: Vancouver

Between:

Hungerford Tomyn Lawrenson and Nichols

Solicitors

And

Kirsten Mide-Wilson

Client

Before: Registrar Sainty

 

Reasons for Decision

Counsel for the Solicitors:

H.W. Wiebach

J.P. Sullivan

Counsel for the Client:

G.K. Macintosh, Q.C.
D.E. Gruber
T. Dickson
J. Leong

Place and Date of Hearing:

Vancouver, B.C.

April 26, 27, 28 and 29,
May 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, and June 6, 7, 8, 9 and 10, 2011

Place and Date of Decision:

Vancouver, B.C.

October 26, 2011


 

Table of Contents

IN THE SUPREME COURT OF BRITISH COLUMBIA. 1

Overview.. 3

Issues. 4

Background Facts. 4

Does the CFA Apply?. 22

1.          Was the CFA Fair at the Time It was Entered Into?. 25

a.         Did Ms. Mide-Wilson Lack Capacity?. 25

b.         Did HTLN Exercise Undue Influence over the Client?. 25

c.          Did HTLN take Unfair Advantage of the Client?. 38

d.         Was a Mistake Made in the Formation of the Contract?. 39

e.         Was There any Other Flaw in the Formation of the Contract?. 41

2.          Was the CFA Reasonable at the Time It was Entered Into?. 44

3.          Are the Solicitors Estopped from Claiming Fees under the CFA?. 61

What is the Value of the Trust Assets?. 66

1.          Experts. 68

a.         McCandlish Report 70

b.         McFarlane Report 76

c.          McEwen Report 84

2.          Law.. 91

3.          Analysis. 94

a.         Discount Rates. 100

b.         Intangible Value. 115

c.          Additional Differences in the Valuations. 119

d.         KPMG Valuation. 122

4.          Conclusion on Value of the Trust Assets. 124

What Fee Should the Client Pay to the Solicitors?. 126

1.          Complexity, Difficulty or Novelty of the Issues Involved. 127

2.          Skill, Specialized Knowledge and Responsibility Required. 127

3.          Amount Involved. 130

4.          Time Reasonably Spent 130

5.          Importance of the Matter to the Client 131

6.          Result Obtained. 132

7.          Other Factors. 132

a.         Risk. 132

b.         Nature of the Client 134

c.          Client’s Ability to Pay. 134

d.         Solicitors’ Alleged Misconduct (the “Secret Deal” with Mr. Rennie) 135

 

Overview

[1]             This case involves two appointments brought pursuant to the Legal Profession Act, S.B.C. 1998, c. 9 [Act]: one filed by Kirsten Mide-Wilson (the “Client” or “Ms. Mide-Wilson”) seeking examination of a contingent fee agreement between Ms. Mide-Wilson and the law firm of Hungerford Tomyn Lawrenson and Nichols (the “Solicitors” or “HTLN”); and a second filed by the Solicitors seeking a review of the bill rendered by the Solicitors to the Client pursuant to the agreement between them.

[2]             The Client brings her application pursuant to s. 68 the Act which says (in part):

(2)        A person who has entered into an agreement with a lawyer may apply to the registrar to have the agreement examined.

(5)        On an application under subsection (2), the registrar must confirm the agreement unless the registrar considers that the agreement is unfair or unreasonable under the circumstances existing at the time the agreement was entered into.

(6)        If the registrar considers that the agreement is unfair or unreasonable under the circumstances existing at the time the agreement was entered into, the registrar may modify or cancel the agreement.

(7)        If an agreement is cancelled under subsection (6), a registrar

(a)        may require the lawyer to prepare a bill for review, and

(b)        must review the fees, charges and disbursements for the services provided as though there were no agreement.

[3]             The Client and the Solicitors entered into a contingent fee agreement on December 8, 2008 (the “CFA”). The Client seeks cancellation (and not modification) of the CFA.

[4]             The Solicitors’ appointment is brought pursuant to s. 70(3) of the Act, which provides:

(3)        Subject to subsection (11), a lawyer may obtain an appointment to have a bill reviewed 30 days or more after the bill was delivered under section 69.

[5]             HTLN rendered a bill to Ms. Mide-Wilson pursuant to the CFA on March 25, 2011 in the amount of $19,044,549.78 (fees: $16,979,015; disbursements: $26,895.22; plus HST/GST on fees and taxable disbursements: $2,038,639.56).

[6]             HTLN advise that if I cancel the CFA, they will not issue a new bill. Rather they will rely on the bill presented as the one I must review on a quantum meruit basis: see, Kelly v. McMillan, 2003 BCSC 307, at paras. 52-55.

Issues

[7]             The Client identified five central issues in this matter:

a)       Does the CFA apply in the circumstances of this case; i.e. is it unfair or unreasonable?

b)       Even if the CFA agreement applies:

(i)       are the solicitors estopped from claiming under it?

(ii)      is the bill the lawyers have rendered reasonable in the circumstances existing at the time they rendered it?

(iii)      what is the amount of a fair fee for the solicitors under section 71(4) of the Act?

c)       What is the net value of the corpus of the Jack Cewe Alter Ego Trust as of August 31, 2009?

[8]             Although these issues were specifically enumerated by the Client, the Solicitors did not dispute that the above list accurately represents the issues in this proceeding and I intend to proceed with these reasons keeping those issues in mind as the ones I must decide.

Background Facts

[9]             I begin by setting out the undisputed facts surrounding the circumstances of the retainer in this matter. I address disputed facts and their effect on my decision as part of my discussion and analysis of the issues.

[10]         Ms. Mide-Wilson is the granddaughter of Jack Cewe, a successful businessman who died on June 7, 2008 at Port Moody, British Columbia at the age of 86.

[11]         Jack Cewe was predeceased by:

a)    Christopher Mide, his only grandson and Ms. Mide-Wilson’s brother, who died at age 25 on June 28, 1998;

b)    Mabel (a.k.a. Ginger) Cewe (“Mabel Cewe”), Jack Cewe’s wife of 63 years who died on December 22, 2005 at age 91; and

c)     Judith Mide, Jack Cewe’s only child and Ms. Mide-Wilson and Christopher Mide’s mother. She died on October 5, 2007 at age 62.

[12]         Ms. Mide-Wilson and her three children are the sole surviving members of Jack Cewe’s immediate family.

[13]         At his death (and throughout his life) Jack Cewe was engaged in the construction business. In 1953 he and his wife, Mabel Cewe, founded Jack Cewe Ltd. (“JCL”), a paving and construction company. Jack and Mabel Cewe were the sole shareholders of JCL until Mabel’s death in 2005 when all of her shareholdings in JCL were transferred by her estate to Jack Cewe through a will executed on November 2, 1994.

[14]         On December 2, 1994 Jack Cewe executed a will (the “1994 Will”) leaving 100% of his JCL shares to Mabel Cewe (if she survived him); failing that, to Judith Mide; or if Judith failed to survive Jack and Mabel, to the grandchildren (Ms. Mide-Wilson and Christopher Mide at the time of the 1994 Will).

[15]         Jack Cewe suffered from macular degeneration and, by the time Mabel Cewe died in 2005, was effectively blind and unable to drive or read.

[16]         Jack Cewe was quite emotionally distraught following his daughter’s (Judith Mide’s) death on October 5, 2007.

[17]         Between October 2007 and May 2008, Jack Cewe executed three new wills and two alter ego trusts (together, the “New Instruments”). These New Instruments were drafted by Ms. Mary Hamilton of Davis LLP, a well known wills and estates practitioner in British Columbia.

[18]         The New Instruments contained the following appointments and bequests:

1.     The October 11, 2007 Will:

a)    Executors: Jack Cewe appointed George Home (“Home”),[1] the long time VP Finance for JCL (for some 40 years) and Alice Gibson (“Gibson”), an employee of JCL with whom Jack had carried on an extramarital affair for some 30 years, as the primary executors of his estate.

b)    Alternate Executors: Emmett McGrath, a partner with KPMG who had provided professional services to JCL and Jack Cewe personally; and Brian Gibson, Gibson’s son, were appointed as the alternate executor.

c)     Bequests:

                                                    i.     $2,000,000 to each of Home and Gibson;

                                                   ii.     $1,000,000 to the Eagle Ridge Hospital Foundation; 

                                                 iii.     $500,000 to Ms. Mide-Wilson;

                                                 iv.     Port Moody residence to Carsten Mide (Judith Mide’s husband and Ms. Mide-Wilson’s father);

                                                  v.      Residue (allegedly valued at some $100,000,000) to the executors. The residue clause included the statement “it is my hope that they [the executors] might distribute some or all of the residue of my estate among various individuals and organisations”.[2]

2.     The October 25, 2007 Will:

a)    Executors/Alternate Executors same as October 11, 2007 Will.

b)    Bequests:

                                                    i.     $2,000,000 to each of Home and Gibson;

                                                   ii.     $1,000,000 to the Eagle Ridge Hospital Foundation; 

                                                 iii.     $200,000 to Ms. Mide-Wilson;

                                                 iv.     $250,000 to Carsten Mide

                                                  v.     Port Moody residence to Ms. Mide-Wilson rather than Carsten;

                                                 vi.     Jack Cewe’s boat (the “Shapray”) to Carsten Mide; and

                                               vii.      Residue of the estate was bequeathed to the Executors with the same “widows and orphans” request as enumerated above.

3.     The April 2008 Will:

a)    Executors/Alternate Executors same as October 11, 2007 Will.

b)    Bequests:

                                                    i.     Port Moody residence and $500,000 to Ms. Mide-Wilson;

                                                   ii.     The Shapray to Carsten Mide; and

                                                 iii.      Residue of the estate was bequeathed to the Executors with the same “widows and orphans” request as enumerated above.

4.     The April 2008 Alter Ego Trust: 

Jack Cewe’s main assets (including his shareholdings in JCL) were transferred to the April 2008 Alter Ego Trust which provided that:

a)    It was irrevocable;

b)    On Jack Cewe’s death, Home was to be appointed as “Trustee Appointer” under the trust with the power to appoint all trustees; provided however that if Home did not appoint trustees within 15 days of Jack Cewe’s death, the trustees were to be Home and Gibson;

c)     On Jack Cewe’s death each of Home and Gibson was to receive a gift of $2,000,000 from the Trust; and

d)    On Jack Cewe’s death, the trustees were to pay the remainder of all trust property to the persons or charity or charities decided by the trustees, and if the trustees so decided, to themselves in whatever proportions they should decide.

5.     The Jack Cewe Alter Ego Trust:

a)    Despite the irrevocability of the April 2008 Alter Ego Trust, the Jack Cewe Alter Ego Trust was executed in May 2008. It revoked and unwound the April 2008 Alter Ego Trust; and

b)    Specifically provided that Home and Gibson might keep all of the assets of the Jack Cewe Alter Ego Trust personally, in addition to the $2,000,000 gifts they were specifically to receive from that trust.

[19]         Jack Cewe died on June 7, 2008. Before he died, Ms. Mide-Wilson was unaware that her grandfather had executed any of the New Instruments. She believed she would inherit her grandfather’s estate and, more importantly, take over her grandfather’s businesses on his death. Ms. Mide-Wilson was extremely surprised to find out about the New Instruments and their terms. In fact, in this hearing I was told that only minutes after Jack Cewe died, Gibson informed Ms. Mide-Wilson outside Jack Cewe’s hospital room that Home and Gibson were the executors of Jack Cewe’s estate and that Ms. Mide-Wilson would only get his Port Moody house and nothing else. This information caused Ms. Mide-Wilson great distress.

[20]         If the New Instruments had not been signed and Jack Cewe had executed no other testamentary documents, Ms. Mide-Wilson would have become the sole beneficiary of her grandfather’s estate under the 1994 Will as the contingent residual beneficiary thereunder, as all other potential beneficiaries (Mabel Cewe, Judith Mide and Christopher Mide) had predeceased Jack Cewe.

[21]         Ms. Mide-Wilson worked in various capacities in her grandfather’s businesses from an early age. In 1994 she graduated with a business degree from Simon Fraser University. Upon graduation, she began working full-time at JCL. She continued to work at JCL, taking on an increasingly larger and more significant role in the company, until March 2005 (shortly after the birth of her third child).

[22]         Christopher Mide, Ms. Mide-Wilson’s brother, also worked at JCL from a young age until his death.

[23]         Ms. Mide-Wilson had always understood from comments Jack Cewe made during his lifetime that her grandfather intended the company to remain within the family and to continue to operate.

[24]         Ms. Mide-Wilson’s departure from the company was precipitated by an incident in March 2005 wherein she and her grandfather engaged in a very public and heated argument about some aspects of the business. In her testimony at this hearing, Ms. Mide-Wilson admitted to having sworn at her grandfather during this argument and that, following the argument, she left the office and never returned to work at JCL.

[25]         Ms. Mide-Wilson also told me during her testimony that she reconciled with her grandfather privately after this fight and he had visited with her, her husband and their three children many times between March 2005 and his death.

[26]         Ms. Mide-Wilson is married to Ryan Wilson, a reasonably sophisticated businessman with some experience as a negotiator. Mr. Wilson has a B.A. in Economics, an M.B.A. and is currently a senior vice-president with the Canadian arm of ThyssenKrupp, a large multi-national corporation. Ryan Wilson and his father (James Wilson, a physician) are directors of a medical services corporation (Ultima Medical) which provides medical services to large corporations.

[27]         Carsten Mide is also a businessman. He has been involved in the construction industry and in property development, including developing intermediate care facilities for the elderly, particularly in Alberta, through Summit Care Corporation. Carsten Mide was involved in large-scale litigation (with Owen Bird as his counsel) in relation to his investment in Summit Care Corporation.

[28]         When Ms. Mide-Wilson became aware of the New Instruments, she suspected Home and Gibson had somehow unduly influenced Jack Cewe to sign them. She asked Home to provide her with a copy of Jack Cewe’s last will and testament but one was not forthcoming. Ms. Mide-Wilson then sought legal advice regarding her options. She made an appointment to see Ms. Dardi, now Madam Justice Dardi, at Legacy Tax + Trust Lawyers. Before they met, Ms. Dardi was appointed as a justice of this court. Consequently, Ms. Mide-Wilson met with Ms. Genevieve Taylor of the same firm, a lawyer with (then) some eight or nine years at the Bar.

[29]         Following that meeting, Ms. Taylor provided Ms. Mide-Wilson with a detailed letter regarding her options and a proposed course of action with respect to her grandfather’s estate including:

a)    filing a caveat querying the validity of the April 2008 Will (which I understand was the Will sought to be admitted to probate);

b)    seeking information from Mary Hamilton concerning Jack Cewe’s estate plan; and

c)     failing (a) and (b), commencing a lawsuit with respect to the April 2008 Will or the Jack Cewe Alter Ego Trust or both.

[30]         Interestingly, Ms. Taylor notes in her letter to Ms. Mide-Wilson:

You can expect that if a matter were to proceed to trial on the issue of the validity of the [April 2008] Will that your legal costs would be no less than $50,000. There is no guarantee that these costs would be payable out of the estate and if you are unsuccessful there is a risk that you would pay some or all of the costs of the other parties. A trial with respect to the inter vivos [Jack Cewe Alter Ego] trust would add additional costs and if they are dealt with separately, may duplicate the costs in this regard.

[31]         Ms. Mide-Wilson decided not to retain Ms. Taylor. On the advice of Linda Brown, a friend of hers and a partner at McCarthy Tétrault, she retained Mr. Herman Van Ommen, also a partner at McCarthy Tétrault, on July 16, 2008. I understand Ms. Mide-Wilson agreed to pay Mr. Van Ommen’s fees on an hourly rate basis at his (then) hourly rate of $500 per hour.

[32]         Mr. Van Ommen prepared a draft statement of defence to the writ of summons and statement of claim filed by Rhys Davies, Q.C. of Davis LLP, on behalf of Home and Gibson (as plaintiffs) to pronounce for the form and validity of the April 2008 Will in solemn form (Home v. Mide-Wilson, BCSC Docket No. S086553, Vancouver Registry (the “Action”)). It is important to this proceeding to know that Carsten Mide was named as a defendant in the Action.

[33]         By late September 2008, Ms. Mide-Wilson began to feel that Mr. Van Ommen was not moving the litigation along quickly enough. Mr. Dave Rennie, a chartered accountant and long time advisor to Carsten Mide, suggested the names of a few lawyers to Ms. Mide-Wilson as potential counsel to act on her behalf in defending the Action, including Messrs. Crickmore and Tomyn (of HTLN) and Mr. Gary Wilson, a lawyer at Borden Ladner Gervais. Ms. Mide-Wilson did not know Mr. Rennie well, but she knew of him because of his ongoing business relationship with her father. Mr. Rennie also knew Home as they were both Chartered Accountants and were relatively close in age. Ms. Mide-Wilson was advised by her father that Mr. Rennie had some skills in negotiating. She hoped Mr. Rennie might be able to assist in pressuring Home to settle the Action and/or to negotiate a settlement directly with Home.

[34]         Ryan Wilson spoke with Randy Hordo, Q.C. about taking over from Mr. Van Ommen. Mr. Hordo agreed to take the case on if Ms. Mide-Wilson was interested in retaining him. Mr. Hordo estimated that legal fees in the Action could reach as high as $2,000,000 if the case went through to the Supreme Court of Canada.

[35]         Mr. Rennie met with Messrs. Crickmore and Tomyn on September 30, 2008 to provide background information in advance of a meeting with Ms. Mide-Wilson set for October 1, 2008. Mr. Rennie was Mr. Tomyn’s personal accountant and had worked with both Mr. Tomyn and Mr. Crickmore in the past. He was of the opinion that Mr. Crickmore was a talented litigator and might be good counsel for the Client in the Action.

[36]         Ms. Mide-Wilson, Mr. Rennie and Carsten Mide all attended a meeting with Messrs. Tomyn and Crickmore on October 1, 2008 to discuss the possibility of HTLN taking over the defence of the Action for Ms. Mide-Wilson. Following that meeting, the Client forwarded some documents to Mr. Crickmore for review.

[37]         Ryan Wilson had a good feeling about Mr. Hordo and thought Ms. Mide-Wilson ought to retain him. Ms. Mide-Wilson wanted Ryan to meet with HTLN to see what he thought of them as an option. On October 9, 2008 Ms. Mide-Wilson, Ryan Wilson and Mr. Rennie met with Tomyn and Crickmore. At that meeting Mr. Wilson told the Solicitors two things he thought were important to the Action.

[38]         Firstly, he related a discussion he had with Jack Cewe on May 8, 2008 during which Jack Cewe told him, “the die is cast; the die is cast” and also that, “Kirsten has nothing to worry about. She is going to be a very wealthy lady and the kids will be looked after forever.” Jack Cewe also allegedly told Mr. Wilson during that meeting that, “George will handle things. I trust him.”

[39]         Secondly, Mr. Wilson described a meeting he had with Home during that summer (of 2008) at the Vancouver Golf Club. Mr. Tomyn’s notes of the October 9 meeting indicate that Mr. Wilson reiterated that during that meeting Home told Mr. Wilson that he expected JCL “would go under because of tax payable on death”. Mr. Tomyn’s notes also record a comment Mr. Wilson related Home made to him about JCL’s debt as “$6 million in debt in company now. Company never had debt before now.”

[40]         At the end of that October 9 meeting, Mr. Wilson was impressed with Crickmore but no decision was made, as yet, to retain HTLN.

[41]         On October 15, 2008, Mr. Van Ommen filed an appearance to the Action on Ms. Mide-Wilson’s behalf.

[42]         Mr. Rennie met with Home on October 17, 2008 at the Vancouver Golf Club. It was hoped that Mr. Rennie might be able to “talk some sense” into Home during that meeting and suggest to him that he (and Gibson) should renounce their interests in the Jack Cewe Estate and the Jack Cewe Alter Ego Trust and, instead, turn the assets over to Ms. Mide-Wilson. That meeting was not successful. Specifically, during that meeting, Home told Mr. Rennie that while he might have earlier been prepared to give Ms. Mide-Wilson some $5 to $10 million dollars, he no longer intended to do so. She would simply receive the share of her grandfather’s estate that had been provided to her in the April 2008 Will.

[43]         Ms. Mide-Wilson and her father next met with HTLN on October 28, 2008.[3] Ms. Teetaert, a junior lawyer at HTLN, also attended this meeting. It is undisputed that the Client agreed to retain HTLN on the basis of a contingent fee retainer at this meeting. Following confirmation that HTLN was to be retained, on November 3, 2008, Mr. Crickmore filed a notice of change of solicitor in the Action and became counsel of record for Ms. Mide-Wilson.

[44]         During October and November, Mr. Crickmore and Ms. Mide-Wilson spent time crafting her statement of defence. To do this, they needed to spend time getting to know each other. Specifically, Mr. Crickmore wanted to know and understand Ms. Mide-Wilson’s “life story” as it was his intention to create a narrative pleading which would essentially tell her story and “set the stage” for setting aside the New Instruments on the basis of suspicious circumstances and undue influence (most particularly by Home) in respect of the making and execution of the New Instruments.

[45]         Ms. Teetaert interviewed Jack Cewe’s caretaker, Soledad Solanga (“Soli”) on November 3 and 5, 2008. Both meetings were lengthy and took place in the HTLN boardroom. Ms. Mide-Wilson attended the first interview but not the second as Ms. Teetaert felt that Soli might be more forthcoming if Ms. Mide-Wilson did not attend the interview.

[46]         Ms. Teetaert prepared a comprehensive memorandum setting out the results of the interview with Soli and Soli’s take on some of the things that could be in issue and would have to be proved (or disproved) by the client in the Action if she hoped to set aside the New Instruments.

[47]         On December 5, 2008 the Client, Carsten Mide and Mr. Rennie met with Messrs. Tomyn and Crickmore to review the pleadings Mr. Crickmore had drafted and to confirm the retainer arrangements between Ms. Mide-Wilson and HTLN. During that meeting, HTLN (Mr. Tomyn) provided Ms. Mide-Wilson with a draft contingency fee agreement. That draft agreement noted that the Client had requested, and the law firm had agreed, that HTLN be retained to act for the Client in the Action on the basis of a contingency fee arrangement. The draft agreement set out the proposed contingency arrangements as:

a)     20% of the first $4,000,000 of any settlement, plus

b)     33.33% of the balance of any settlement.

[48]         Ms. Mide-Wilson did not sign any fee agreement at that meeting. She took the draft agreement home with her over the weekend to review it. On December 8 she again met with Messrs. Crickmore and Tomyn. Accompanying her to that meeting were Mr. Rennie and Mr. Wilson. Carsten Mide had left that weekend to spend time in Hawaii and so did not come along on this occasion.[4]

[49]         After discussing the fee contract, Ms. Mide-Wilson and Mr. Wilson went to a coffee shop located in the lobby of the building where HTLN has its offices. They were gone for some time.[5] While in the coffee shop, they spoke to Mr. Rennie, although he was not with them the whole time. When the Client and Mr. Wilson returned to HTLN’s offices, they negotiated four changes to the draft contingency fee agreement and, once the requested changes were made, Ms. Mide-Wilson signed it.

[50]         The CFA as signed provided that HTLN would act for the Client with fees to be billed on a contingency fee basis. Specifically, HTLN’s fees were to be:

a)     20% of any settlement entered into before December 9, 2009; or

b)     25% of any settlement entered into after December 8, 2009 and before December 9, 2011; or

c)     one-third of any settlement entered into on the earlier of:

a.     December 9, 2011 or thereafter; and

b.     six weeks before the first day of trial of any issue; or

d)     one-third of any judgment.

[51]          On December 9, 2008 Mr. Crickmore filed the Client’s statement of defence to the Action, together with a counterclaim naming Davis LLP (particularly Ms. Hamilton), as well as Home and Gibson as defendants. The statement of defence claims that Jack Cewe’s estate is worth in excess of $100,000,000.

[52]         On December 15, 2008, Davis LLP filed an application under (then) Rule 19(24) seeking to have the Client’s counterclaim against them struck. Davis LLP withdrew as counsel for Home and Gibson in the Action on or about December 17, 2008 and, virtually contemporaneously, Mr. Barry Kirkham, Q.C. of Owen Bird Law Corporation filed a notice of change of solicitor and became the solicitor of record for Home and Gibson in the Action.

[53]         Murray Smith of Smith Barristers filed an appearance on Carsten Mide’s behalf in the Action. Mr. Smith was recommended to Carsten Mide by HTLN. On December 18, 2008, Mr. Smith wrote to Mr. Kirkham and noted that Owen Bird was in a conflict of interest in representing Home and Gibson in the Action while, at the same time, acting on Carsten Mide’s behalf in the Alberta proceedings involving Summit Care Corporation.

[54]         In mid-January 2009 HTLN received a letter from Emmett McGrath, one of the alternate executors and trustees of Jack Cewe’s estate and the Jack Cewe Alter Ego Trust. In that letter, Mr. McGrath confirmed that Jack Cewe delegated most of JCL’s financial and legal matters to Home and trusted Home completely. This letter would be helpful to the Client in proving undue influence and portraying Home as a fiduciary in relation to Jack Cewe in his personal capacity.

[55]         Davis LLP’s application to strike was heard by Curtis J. over two days, commencing March 6, 2009. On April 27, 2009 his Lordship issued reasons dismissing Davis LLP’s application.

[56]         A number of applications were briefed between March and June 2009, including:

a)    a medical documents motion;

b)    applications by Ms. Mide-Wilson to:

                                               i.          amend her pleadings;

                                              ii.          have Owen Bird removed as counsel of record for Home and Gibson based on their (alleged) conflict of interest in respect of Carsten Mide;

c)     an application by Carsten Mide to have Owen Bird removed as counsel of record for Home and Gibson based on the (alleged) conflict of interest;

d)    applications by each of Davis LLP and Home and Gibson to strike, sever or stay certain of Ms. Mide-Wilson’s claims;

e)    an application to strike Carsten Mide’s statement of defence to the Action (later amended to include an application to strike the counterclaim); and

f)      an application for leave to appeal Curtis J.’s decision on the application to strike.

[57]         Dillon J., case manager in the Action, directed that all of the applications be briefed but made no directions as to when the applications might be heard or in what order.

[58]         All of the motions were scheduled for hearing before Hinkson J. on June 19, 2009. His Lordship decided to first hear the conflicts motions in respect of Owen Bird. His Lordship heard those applications over four days (June 19, 22, 23 and 25). He reserved his decision.

[59]         On July 2, 2009 Owen Bird sent HTLN an offer to settle the Action for the sum of $22,000,000, broken down as follows:

a)    $5,000,000 to be paid to each of Home and Gibson (which sum included the specific bequests of $2,000,000 to each of them under the Jack Cewe Alter Ego Trust);

b)    $1,000,000 to be paid to each of Eagle Ridge Hospital Foundation and the Douglas College Foundation; and

c)     $10,000,000 to be paid to Home in trust for him to distribute among employees of JCL (the so-called “widows and orphans”).

[60]         It is important to note that the effect of this offer was that the Client would receive the bulk of Jack Cewe’s estate and that she would become the trustee of the Jack Cewe Alter Ego Trust. It was not an offer whereby Home and Gibson sought to pay Ms. Mide-Wilson money in lieu of her receiving the estate or becoming a trustee of Jack Cewe Alter Ego Trust.

[61]         The letter from Owen Bird contained numerous assertions as to the strength of Home and Gibson’s position in the Action. Specifically Owen Bird noted that the New Instruments had been drafted and witnessed by a leading wills and estates practitioner (Ms. Hamilton) whom they said:

… will give powerful evidence on capacity and her effective handling of Mr. Cewe’s eyesight limitations in confirming he clearly understood the instruments.

[62]         Included with Owen Bird’s letter was an expert report, authored by Dr. Wiebe, Jack Cewe’s principal physician, which confirmed Jack Cewe’s capacity, according to Owen Bird, “beyond any doubt”. Further, the letter stipulated (although no decision had yet been released by Hinkson J.) that continued meaningful settlement negotiations would require that Owen Bird continue to represent Home and Gibson throughout any such negotiations.

[63]         After receiving the offer from Home and Gibson, Ms. Mide-Wilson instructed HTLN to make a counteroffer to settle the matter with her paying Home and Gibson (collectively) the sum of $5,000,000. Included with the counteroffer was an expert opinion by a Dr. Shulman (commissioned by HTLN on the Client’s behalf), which specifically responded to Dr. Wiebe’s report. Dr. Shulman has apparently written extensively on assessing testamentary capacity. His theory is that the more complex the disposition of an estate, the less mental impairment is necessary to oust testamentary capacity. It was thought that Dr. Shulman’s opinion might be invaluable in confirming Jack Cewe’s testamentary capacity (or lack thereof) and bolster the case for setting aside the New Instruments.

[64]         On July 15, 2009 Davis LLP’s application for leave to appeal Curtis J.’s decision was denied by Low J.A. On July 16, 2009 HTLN was advised that Hinkson J.’s decision on the Owen Bird conflict motion was to be released on July 17, 2009. Prior to receipt of Hinkson J.’s decision, Owen Bird provided a counteroffer on behalf of Home and Gibson, this time for $16,000,000: $4,000,000 to be paid by the Client to each of Home and Gibson; $500,000 to each of Eagle Ridge Hospital and Douglas College Foundations; and $7,000,000 to be paid to Home to distribute to the JCL employees.

[65]         Hinkson J.’s decision was released later that day. His Lordship granted the relief sought by Carsten Mide (supported by the Client) and ordered that Owen Bird cease to act on Home and Gibson’s behalf in the Action because of their conflict in acting for Carsten Mide in the Alberta action.

[66]         Messrs. Crickmore, Tomyn and Robert Hungerford, another partner in HTLN, met with Mr. Rennie, the Client and Carsten Mide[6] on July 17 to discuss the Client’s next steps in the Action. HTLN suggested that mediation might be in order to try and settle the matter. Although Mr. Rennie and Carsten Mide were not initially in favour of mediation, at the end of that meeting, it was agreed that Mr. Crickmore would canvas with Mr. Kirkham if mediation was a possibility.

[67]         Mr. Crickmore spoke with Mr. Kirkham who agreed that mediation might resolve matters (provided Owen Bird did not have to withdraw as counsel for Home and Gibson in accordance with Hinkson J.’s order) and also agreed to participate in mediation to attempt to resolve all of the issues. Mr. Kirkham and Mr. Crickmore settled on Bill Everett, Q.C. as mediator.

[68]         The mediation was held over two days (with one day in between) on July 28 and 30, 2009. The client attended both days of the mediation, as did Mr. Rennie and Carsten Mide. Ryan Wilson was there on July 28 but not on July 30. Davis LLP did not participate in the mediation. On the first day of the mediation the Client did not move from her original offer to pay $5,000,000 to Home and Gibson in exchange for the estate and becoming the trustee of the Jack Cewe Alter Ego Trust. Because of this, Mr. Kirkham threatened to withdraw early in the mediation, but was persuaded not to do so by Mr. Hungerford and Mr. Rennie.

[69]         Several times during the first day of mediation Mr. Rennie and Home had one-on-one discussions about the matter during a number of cigarette breaks they apparently took at the same time. Towards the end of the day, Mr. Rennie reported to the Client and HTLN that he had proposed a settlement figure of $10,000,000 (paid by the client to Home and Gibson) while Home was looking for payment in the $12,000,000 range. Ryan Wilson was apparently not happy with that number – he felt the $5,000,000 offer already made by Ms. Mide-Wilson was sufficient.

[70]         Somewhat to everyone’s surprise Home left the mediation at 4:30 p.m. on July 28.

[71]         On July 29, Mr. Rennie met directly with Home at the Vancouver Golf Club to see if an agreement might be reached. During their meeting, Home suggested that the matter might be settled if the Client offered to pay him and Gibson some $8,000,000, although he told Mr. Rennie that he intended, when the mediation resumed the next day, to open the negotiations at $10,000,000 and then (likely) settle at the $8,000,000 level.

[72]         Early in the morning on July 30, Home and Gibson agreed to settle the Action in exchange for payment to them of the sum of $8,000,000. The rest of the day was used to negotiate the details of the settlement. Mr. Tomyn spent his time drafting an agreement. Mr. Crickmore spent time reviewing it with the Client and with Home, and resolving their various concerns. A final settlement agreement was reached and signed on July 30, 2009 whereby the Client agreed to pay Home and Gibson $4,000,000 each.

[73]         Throughout August 2009, Mr. Tomyn set to work “papering” the deal. Mr. Tomyn’s list of “Closing Documents” sets out 64 documents or categories of documents necessary to close the deal. The closing involved, among other things, the transfer of the trusteeship of the Jack Cewe Alter Ego Trust, the transfer of several pieces of real estate, the redemption of shares and the declaration of a dividend.

[74]         The settlement funds came from JCL and not Ms. Mide-Wilson’s personal resources. There were some difficulties securing the funds but, in the end, the settlement closed on August 31, 2009.

[75]         In mid-September Hinkson J. made an order (by consent) in the Action granting letters of administration of Jack Cewe’s estate to Ms. Mide-Wilson.

[76]         On September 30, Ms. Mide-Wilson came to HTLN to discuss their fees. She met with Messrs. Tomyn and Crickmore on that date. No agreement was made as to an appropriate amount for the fees. The parties met again on October 7, 2009. At that meeting Mr. Tomyn suggested a fee of $12,000,000 based on a net value of the Jack Cewe estate (including the assets in the Jack Cewe Alter Ego Trust) in the $100,000,000 range, from which amount was to be subtracted the $8,000,000 paid to Home and Gibson and some $12,000,000 in taxes to be paid in respect of the Jack Cewe Alter Ego Trust resulting in fees of $16,000,000 which Mr. Tomyn said he (HTLN) was prepared to discount to $12,000,000. Ms. Mide-Wilson was upset at the amount of fees proposed and left that meeting without any resolution regarding what fee she would pay HTLN for their work on her behalf in the Action.

[77]         On October 19, Ms. Mide-Wilson and Mr. Wilson met Mr. Crickmore at a restaurant in Burnaby to try and resolve (or at least discuss) HTLN’s fees. At some point during that meeting Mr. Crickmore suggested that some “adult supervision” might be in order. He then told the Client that HTLN had consulted counsel about the fee issue. He suggested to Ms. Mide-Wilson that she do the same and even recommended Mr. Macintosh, Q.C. to her as potential counsel.

[78]         Throughout October, November and December, HTLN continued to act on Mide-Wilson’s behalf in the Action (filing probate documents, for example).

[79]         On January 27, 2010, Ms. Mide-Wilson formally ended the solicitor-client relationship. On that same date, Mr. Macintosh, Q.C. filed the appointment to examine the agreement made between Ms. Mide-Wilson and HTLN.

[80]         HTLN did not issue a bill to the Client for their services until June 30, 2010 on which date they prepared a pro forma bill seeking 20% of the net value of the Jack Cewe estate and Jack Cewe Alter Ego Trust, including personalty, real estate holdings and corporate holdings, including JCL, Cewe Holdings Ltd., Ridge Gravel & Paving Ltd., Heather Construction Co. Ltd., Shoshone Construction Ltd. and Jack Cewe Inc.

[81]         HTLN issued a final bill (the “Bill”) to the Client pursuant to the CFA on March 25, 2011 (based on 20% of the value of the Jack Cewe estate and the Trust Assets following completion of valuation reports prepared by Mr. Keith McCandlish and Ms. Margaret McFarlane valuing the “Pipeline Road and Treat Creek Sand and Gravel Operations” of JCL and the “Jack Cewe Group of Companies”, respectively). In the Bill, HTLN seeks payment of fees of $16,971,015 based on:

a)    The total value of the settlement achieved by the solicitors for the client of $117,210,432 being the value of the Personal Property ($1,360,432) plus the Business Value ($115,850,00) less deductions (settlement funds of $8,000,000 paid to Home and Gibson plus income taxes payable of $12,180,625.55 as per the 2008 T3 Trust Income Tax and Information Return for the Jack Cewe Alter Ego Trust 2008, plus income taxes of $12,134,732.03 that would be payable on a sale of the business assets as at August 31, 2009) of $32,315,357 = $84,895,075 x 20% = $16,979,015; PLUS

b)    HST on the proposed fee amount in $2,037,481.80; PLUS

c)     Disbursements (which on the final day of the hearing I was told were not disputed) totalling $26,895.22 plus taxes on such disbursements of $1,157.76.

[82]         The total fee requested and at issue in this proceeding is therefore $19,044,549.78 (fees: $16,979,015; plus disbursements: $26,895.22; plus HST/GST on fee and taxable disbursements: $2,038,639.56).

[83]         The Client has not paid HTLN any amount to date for their work on her behalf in the Action.

[84]         I now turn to my discussion and analysis of the issues in this proceeding. I note that while I do not discuss every submission made by the Client and the Solicitors, I have considered all written and oral submissions and have not mentioned unsupported submissions or discussed disputed facts that I do not find to have a bearing on the issues I must decide.

Does the CFA Apply?

[85]         Since 1908, British Columbia has authorized solicitors to enter into fee agreements with their clients. Contingent fee agreements have, however, only been permitted since 1969. In general, contingent fee agreements were permitted to allow persons who might not otherwise have the financial means to hire counsel to have access to justice. In Usipuik v. Jensen, Mitchell & Co. (1986), 3 B.C.L.R. (2d) 283 (S.C.), Southin J. (as she then was) confirmed at p. 292 that the onus of proving the terms of a retainer and the specifics of a fee agreement is on the solicitor.

[86]         In Anderson v. Elliott (1998), 60 B.C.L.R. (3d) 131 (S.C.), Sigurdson J. explained the nature of contingent fee agreements, at paras. 67-68:

Under a contingent fee agreement, the lawyer and the client enter a type of joint venture where they will either share in the fruits of the action or suffer the defeat together. Normally, I would expect that it is not a joint venture of equals, in that the law firm, generally, has a more thorough understanding of the law, the legal process and the potential outcomes of litigation than the client.

But this imbalance is tempered by the fact that the relationship is a fiduciary one; the law firm owes a number of duties to their client, not the least of which is the duty to act only in their client's best interests.

[87]         In addition to common law protections, the Legislature protects clients in s. 68 of the Act:

...a client who has entered into a fee agreement with a solicitor may apply to the registrar to have the agreement examined and, on such application, the registrar must review the agreement for fairness and reasonableness.

[88]         Pursuant to that section, when a client files an appointment to have a registrar examine an agreement made between her and her solicitor, the registrar is tasked with determining if the agreement is fair and reasonable. If she finds the agreement to be unfair or unreasonable, the registrar may cancel or modify it.

[89]         In Commonwealth Investors Syndicate Ltd. v. Laxton (1990), 50 B.C.L.R. (2d) 186 (C.A.) [Commonwealth No. 1], the British Columbia Court of Appeal established that the enquiry into whether a retainer agreement is unfair or unreasonable is done in two steps. The Court explained at pp. 198-199:

The first step investigates the mode of obtaining the contract and whether the client understood and appreciated its contents. The enquiry would include whether, at the time the contract was entered into, there was any lack of capacity on the part of the client, whether there was any undue influence exercised or unfair advantage taken by the solicitor, whether any mistake was made, or whether any other flaw arose in the formation of the contract which would indicate that the client did not understand and appreciate its content. The onus would be upon the solicitor to satisfy the foregoing requirements of the enquiry. Should any of those be found, the contract would not be “fair” in the sense of the statute and Re Stuart [Re Stuart: ex parte Cathcart, [1893] 2 Q.B. 201]. The court would declare the contract cancelled, or would modify it, or the bill could be remitted for taxation.

The second enquiry, assuming the contract is found to be “fair” involves an investigation of the “reasonableness” of the contract. On this investigation, extending from the time of the making of the contract until its termination or its completion, all of the ordinary factors which are involved in the determination of the amount a lawyer may charge a client are to be considered, and each factor may be the subject of professional evidence to assist the judge in determining the reasonableness of the fee in the particular circumstances.

[90]         Their Lordships continue at p. 202:

To summarize: close examination should be made of the words of Re Stuart. It says very distinctly that the solicitor must not only satisfy the Court that (a) the agreement was fair with regards to the way it was obtained; but (b) must also satisfy the Court that the terms are reasonable; and (c) the matters covered by the expression "fair" cannot be re-introduced in the "reasonable" consideration. Conversely, the matters covered by the expression "reasonable" cannot be considered in the "fairness" enquiry.

In our view the two enquiries are in nearly watertight compartments. One compartment investigates the mode of obtaining the contract and whether the client understood and appreciated its content. The second enquiry involves the reasonableness of the amount of the fee.

[91]         Commonwealth No. 1 was decided under the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26. In Randall & Co. v. Hope (1996), 13 E.T.R. (2d) 257 (B.C.S.C.) [Randall], Levine J. (as she then was) considered the fairness and reasonableness of a contingent fee agreement under ss. 78(8) and (9) (now ss. 68(2) and (5)) of the Legal Profession Act, S.B.C. 1987, c. 25, which sections slightly modified the provisions of the Barristers and Solicitors Act considered by the Court of Appeal in Commonwealth No.1.

[92]         In Randall, Her Ladyship confirmed the two-step enquiry but noted that both stages of the enquiry were concerned with the circumstances existing at the time the contract was entered into. Specifically, Her Ladyship said, at para. 36:

...The only change in the legislation from the Barristers and Solicitors Act [R.S.B.C. 1979, c. 26] to the Legal Profession Act [S.B.C. 1987, c. 25] is with respect to the time at which the reasonableness of the agreement is to be determined. Both fairness and reasonableness are to be determined under the circumstances existing at the time the contract was entered into. This may change some of the questions asked, but not the matters to be determined: fairness still involves the mode of obtaining the contract and whether the client understood and appreciated its contents, and reasonableness still involves the amount of the fee.

[93]         It is important to note that, in addition to the legislative provisions of the Act applicable on this review, the Benchers (as is permitted under s. 66(2) of the Act) have also made rules regarding contingent fee agreements. Those rules include limitations on the amount, in certain cases, that can be charged by way of a contingency fee and the form and content of contingent fee agreements.

[94]         Specifically, Rule 8-1 of the Law Society of British Columbia Rules provides:

(1)        A lawyer who enters into a contingent fee agreement with a client must ensure that, under the circumstances existing at the time the agreement is entered into,

a)     the agreement is fair, and

b)     the lawyer's remuneration provided for in the agreement is reasonable.

(2)        A lawyer who prepares a bill for fees earned under a contingent fee agreement must ensure that the total fee payable by the client

a)     does not exceed the remuneration provided for in the agreement, and

b)     is reasonable under the circumstances existing at the time the bill is prepared.

[95]         Accordingly, I must first consider if the CFA was “fair” at the time it was entered into and then whether it is “reasonable”. The question of “reasonableness” is also to be considered as at the time the CFA was entered into.

1.       Was the CFA Fair at the Time It was Entered Into?

[96]         Commonwealth No. 1 confirms that, in inquiring into the fairness of the agreement between a solicitor and client, the registrar should give regard to (at p. 198):

...whether, at the time the contract was entered into, there was any lack of capacity on the part of the client, whether there was any undue influence exercised or unfair advantage taken by the solicitor, whether any mistake was made, or whether any other flaw arose in the formation of the contract which would indicate that the client did not understand and appreciate its content. ...

[97]         In my view, the proper approach to deciding the fairness of the CFA is to consider, in the context of this matter, the questions posed by the Court of Appeal in Commonwealth No. 1.

a.       Did Ms. Mide-Wilson Lack Capacity?

[98]         The Oxford English Dictionary defines capacity as, “the ability or power to do something, or a person’s legal competence”.

[99]         I do not perceive the Client to suggest she lacked capacity to enter into the CFA and, even if she did, I could not accede to it. Ms. Mide-Wilson is clearly a well-educated, well-spoken and reasonably sophisticated businesswoman. She has a post-secondary education and considerable business experience. She presented herself in this hearing as competent and capable. Clearly she had the capacity to contract with the Solicitors.

b.       Did HTLN Exercise Undue Influence over the Client?

[100]     The Client says the Solicitors exercised “undue influence” over her in relation to her execution of the CFA in a number of ways.

[101]     Firstly, she says that the Solicitors did not recommend that she obtain independent legal advice prior to entering into the CFA and that that failure, in and of itself, supports her contention that she was “unduly influenced” by the Solicitors to sign the CFA.

[102]     Secondly, she says the Solicitors pressured her into signing the agreement. She claims the Solicitors said they would not file her statement of defence and counterclaim in the Action without a written agreement for fees between herself and HTLN.

[103]     Thirdly, she says the Solicitors convinced her that, if the Action settled quickly, they would not claim fees on the basis of the CFA; rather they would charge her a “fair fee” commensurate with the stage of the proceedings and the work done to the date of such settlement. More specifically she says that the Solicitors told her that, if the Action settled quickly, the CFA would not be worth the paper it was written on.

[104]     The Solicitors say lack of independent legal advice is not fatal to the fairness of the CFA. This, they say, is of even more significance in these circumstances when considering the sophistication of the client, her experience with lawyers, her access to counsel, and her husband’s and father’s experience in negotiating and dealing with lawyers as businessmen.

[105]     The Solicitors deny there was ever any requirement that the CFA be signed before they would file the statement of defence and counterclaim.

[106]     They also deny that there was any agreement with respect to fees, except as expressed in the CFA.

(1) Were the Solicitors Required to Recommend that the Client Obtain Independent Legal Advice?

[107]     In Georgialee Lang & Associates v. Wigod, 2003 BCSC 1178, Nielson J. (as she then was), in considering a client’s argument that he had been unduly influenced to sign a certificate of fees in favour of his solicitor, explained that the foundation of undue influence is coercion and that there is a rebuttable presumption of undue influence in a solicitor-client relationship. Specifically she notes, at para. 40:

It was not clear to me that the client was advancing undue influence as a claim distinct from duress. I will nevertheless deal with his arguments in that context as well. The foundation of undue influence, like duress, is coercion. Given the solicitor/client relationship, it falls to the solicitor to rebut a presumption of undue influence, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353. The presumption may be rebutted by establishing that the weaker party had honest and competent independent legal advice: Inche Noriah v. Shaik Allie bin Omar, [1929] A.C. 127 (P.C.).

[108]     In Waldock v. Bissett (1992), 67 B.C.L.R. (3d) 389 (C.A.), Southin, J.A. in considering this issue confirms that independent legal advice is not, however, a requirement. Her Ladyship said at para. 28:

Here the difficulty is two-fold: (1) There is no rule of law or equity that a solicitor entering into an agreement with his client must advise the client to obtain independent advice. Such advice is often wise for the protection of the solicitor even if not for the client. But the true obligation is to advise the client, if as here the agreement will have the effect of depriving the client of his existing legal right to performance of the earlier contract, of that legal right. ...

[109]     Ms. Mide-Wilson was not specifically advised by HTLN that she ought to get independent legal advice before signing the CFA. In my view, however, the lack of independent legal advice in the particular circumstances of this case is not sufficient to raise the spectre of “undue influence” in connection with the CFA for a number of reasons.

[110]     The Client had experience with lawyers. She knew she was not required to retain HTLN. She had other lawyers prepared to take over if she was not satisfied with HTLN right up until the time she signed the CFA. The Client originally met with Ms. Taylor at Legacy Tax + Trust Lawyers, but decided not to retain her as she felt Ms. Taylor did not have the experience necessary to defend the Action. Instead, she hired Mr. Van Ommen, a barrister and solicitor with not inconsiderable experience. She later terminated that retainer as she felt Mr. Van Ommen was not progressing quickly enough. Mr. Wilson met with Randy Hordo, Q.C., also counsel with a great deal of experience. Mr. Wilson was in favour of retaining Mr. Hordo and Mr. Hordo was willing to be retained. Ms. Mide-Wilson chose not to meet with Mr. Hordo but she was aware (from her husband) that Mr. Hordo was prepared to help out with things at anytime, should the need arise.

[111]     As I noted earlier, the Client was introduced to HTLN by Mr. Rennie. At the same time Mr. Rennie proposed HTLN to Ms. Mide-Wilson as potential counsel, he also suggested she meet with Mr. Gary Wilson of Borden Ladner Gervais. Ms. Mide-Wilson met with HTLN on Mr. Rennie’s recommendation. She did not pursue a meeting with Mr. Wilson.

[112]     Although Ms. Mide-Wilson suggested in her testimony that she felt she had to go with HTLN if she wanted to have Mr. Rennie as part of her “team”, that is not borne out by the evidence, especially that of Mr. Rennie who testified that he was prepared to work with anybody Ms. Mide-Wilson wished to retain, including Mr. Van Ommen, Mr. Hordo or Mr. Gary Wilson.

[113]     In his testimony, Mr. Crickmore described the initial meeting between HTLN and Ms. Mide-Wilson as a “beauty pageant”, meaning, I suppose, that he and Mr. Tomyn were being judged by the Client as to whether she might hire them to take over from Mr. Van Ommen. Mr. Crickmore testified (and I believed him) that he understood HTLN to be in the “beauty pageant” until at least October 28, 2008 when it appears he was given the go-ahead to file a notice of change of solicitor. At any time during that period, Ms. Mide-Wilson could have retained other counsel or sought advice on her options from Mr. Van Ommen (including suggesting to him the possibility of naming Home as a fiduciary as a strategy in the Action). In fact, Mr. Crickmore said he believed, even after she told HTLN she wished to retain them, that if the Client was not happy with his pleadings she would not continue with the retainer.

[114]     The parties agree that at some point in time prior to signing the CFA, the Solicitors explained to the Client that there were four ways they could calculate and bill fees to the Client:

a)    hourly rates times hours spent;

b)    hourly rates plus a bonus for success;

c)     a contingent fee based on a percentage of settlement or recovery; and

d)    a hybrid of a contingent fee and hourly rate retainer.

[115]     Mr. Rennie, in his testimony, recalled Mr. Tomyn specifically reviewing these four methods with Ms. Mide-Wilson and Mr. Wilson. Mr. Rennie also testified that he thought Mr. Tomyn took a very professional view in explaining to the Client the nature of a contingency fee agreement and comparing it against a fee for service agreement.

[116]     The testimony is unequivocal: Carsten Mide was adamant that HTLN take on the matter on the basis of a contingent fee arrangement. The parties are also ad idem that, in the end, the Client chose to retain the Solicitors on the basis of a contingent fee arrangement. On cross-examination, Mr. Wilson confirmed that he, too, was in favour of a contingent fee type of retainer as it was more “palatable” to him not to write monthly cheques for legal fees. Although Ms. Mide-Wilson intimated that she wanted to appease her father and that, rather than suggesting an alternative billing method, she went along with his wish that the Solicitors be retained on the basis of a contingency fee arrangement, I find that she had ample opportunity to consider her options and decide for or against the CFA of her own volition.

[117]     The Client had the opportunity to take the draft CFA home with her over the weekend and to review it with her husband. Even after she signed it, the Solicitors told her she could forward it to Carsten Mide to review. There was no suggestion after she signed the CFA that Carsten Mide wished additional changes or was not in favour of the form of agreement agreed to between the Client and the Solicitors.

[118]     I find that the Client had adequate opportunity to seek independent legal advice about the CFA. She had experience with counsel (at least in relation to the Action). She knew Mr. Wilson had friends and acquaintances in the legal field who were prepared to assist (and who could have looked at the CFA), including Mr. Hordo, who is very senior counsel. She was given ample opportunity to review the agreement with counsel between the meeting of December 5 (when she was presented with the draft contingency fee agreement) and December 8 when she and Ryan Wilson met with HTLN and signed the CFA. She understood the nature of a contingency fee agreement and had a choice of retainer methods.

(2) Did the Solicitors Pressure the Client into Signing the CFA?

[119]     As noted, the Client suggests she felt “pressured” by HTLN to sign the CFA. In her second amended statement of position, in setting out the facts surrounding the December 5, 2008[7] meeting, she says:

The main topic of the meeting was the counterclaim, which HTLN said needed to be filed prior to Christmas, so that it would be taken seriously. HTLN advised her that the matter of fees had to be settled before they could proceed to file the counterclaim.

[120]     On cross-examination, the Client somewhat resiled from this position and, in her closing submissions in this hearing, says:

December 5th was a Friday, and Ms. Wilson took the draft fee agreement home with her to consider. She felt a sense of urgency to have the pleadings filed, because her own sense was that the only way she could obtain the company and keep it operating was if George Home backed down quickly. She also believed that HTLN required the fee agreement to be signed prior to the pleadings being filed.

[121]     Despite Ms. Mide-Wilson’s assertion that she was pressured to sign the CFA, I do not find that any actual pressure was asserted on her. The evidence instead supports the contention that it was the Client (or at least Mr. Wilson) who was pushing to get the pleadings in place, rather than the Solicitors. For example, on November 10, 2008 Mr. Wilson sent an email to Mr. Crickmore, stating in part as follows:

Also, George’s son is very ill in the hospital. We were hoping the pleadings would be filed this week. Do you think that is possible…?

[122]     On cross-examination, Mr. Wilson agreed that he was pushing Mr. Crickmore to get the pleadings done and filed. He explained that he felt the illness Home’s son was suffering would put more pressure on Home in the circumstances.

[123]     Also, on November 18, 2008 Ms. Mide-Wilson emailed Mr. Crickmore asking, “How are we doing Gavin?” On cross-examination, she agreed that in that email, she was prompting Mr. Crickmore with respect to the pleadings.

[124]     On November 21, 2008 Mr. Tomyn sent Mr. Crickmore this email:

Ryan, Kirsten’s husband, called Dave [Rennie] today and spent an hour bending his ear about what we are or are not doing.

Send me a draft of the pleading so that I can review it over the weekend and we can get it filed next week.

We also need to get the fee agreement signed.

[125]     Mr. Crickmore testified that Ms. Mide-Wilson and Mr. Wilson wanted the matter to move forward as quickly as possible because they wanted maximum pressure put on Home. Mr. Crickmore, however, was counselling patience, “because we wanted to make sure that the documents we were creating were perfect and that we stick-handled through the sort of legal minefield as carefully as possible.” 

[126]     On December 5, the Client was given the pleadings Mr. Crickmore drafted to review over the weekend. Once she had those pleadings in hand, it was possible for her to take those pleadings to any other solicitor of her choosing (including Mr. Hordo who told Mr. Wilson that he was happy to assist with the Action at anytime) and have that solicitor file them as her statement of defence to the Action.

[127]     On the basis of all of the above, I am satisfied that the Solicitors did not pressure the Client to sign the CFA.

(3) Did the Solicitors Convince the Client to Sign the CFA on the Basis it Would Not Apply to an Early Settlement?

[128]     The Client further claims, as mentioned above, that the Solicitors told her that if the Action settled quickly, the CFA would “not be worth the paper it’s written on”. In that regard, she feels the Solicitors unduly influenced her to enter into CFA because she was persuaded to sign it by these assurances by HTLN.

[129]     The Client says it was always understood that the best case scenario would be to settle the Action quickly; otherwise it was extremely likely that Home and Gibson would sell the assets and either keep the proceeds for themselves, or distribute them to the “widows and orphans”. Because of this belief, the Client says she was concerned with what fees she might pay if (as hoped) the Action settled quickly. She claims Mr. Tomyn’s statement that if the Action settled quickly the fee agreement would not be worth the paper it was written on was said in response to her raising these concerns.

[130]     The Solicitors, on the other hand, contend firstly that they did not tell the Client that the CFA would not be worth the paper it was written on; and secondly, rather than expecting a quick settlement, everyone felt from the beginning that they were in it for the long haul as it was highly unlikely, especially given Home’s conversation with Mr. Rennie on October 17, that Home and Gibson would cave sooner rather than later, if at all.

[131]     I will deal with this latter assertion first.

[132]     The evidence supports the Solicitor’s contention that the matter was not likely to settle quickly. In several emails and voice mails from Mr. Wilson to HTLN, he mentions the “long, long process” and notes that the case might take years. In cross-examination, Ms. Mide-Wilson acknowledged that she understood “on some level” at least that the Action might take years to resolve. As well, her clear instructions to HTLN were to not ever initiate settlement negotiations with Home and Gibson (as she had no interest in settling for a monetary amount) but to keep the pressure on Home, as pressuring him was the key to making Home and Gibson cave. I find that there was no expectation at the time the CFA was signed that the Action was likely to settle quickly.

[133]     Even if everyone was of the opinion that the Action was not likely to settle quickly, did the Solicitors still unduly influence the Client to sign the CFA by telling her that, if the Action settled quickly, it would not be worth the paper it was written on?

[134]     The parties do not agree when the issue of a contingency fee arrangement was first discussed. The Solicitors claim the matter of fees (and how they could be calculated) was first raised at a meeting at their offices on October 28, 2008 attended by the Client, Carsten Mide, Mr. Rennie, Mr. Tomyn, Mr. Crickmore, and Ms. Teetaert.

[135]     Mr. Crickmore testified that the issue of fees was first discussed at this meeting and that, after outlining the four bases on which the firm might be compensated, the Client (and Carsten Mide) expressed a preference for a contingent fee retainer. Ms. Mide-Wilson does not deny that it was at this meeting that the issue of how the Solicitors were to be paid was first raised. However, her recollection of the specifics of it was not very clear.

[136]     Ms. Teetaert, on direct, confirmed that there had been a general discussion about fees at this meeting. She said:

Q         And do you recall whether fees were discussed?

A          Yes. After sort of the introductory conversation and discussion about the estate and assets, et cetera, there was a fee discussion. And my recollection is that Mr. Crickmore led that discussion and indicated that there were a couple of options for fees; one was a straight hourly arrangement, hourly fee arrangement, the second was a straight contingency fee arrangement, and the third was some combination of the two of those. And my recollection then is that Carsten Mide was very adamant that it be a contingency arrangement only.

[137]     When questioned as to why she recalled the fee discussion, Ms. Teetaert said that, firstly, she remembered it specifically because of how adamant Carsten Mide was in his desire to proceed on the basis of a contingent fee arrangement and; secondly, because she was surprised that HTLN would take on such a large file with such significant risk given the size of the HTLN firm.

[138]     Mr. Tomyn’s notes made at the meeting confirm that, on October 28, four fee options were outlined and discussed. They also confirm the Client’s preference for a contingent fee arrangement (“Option 4”).

[139]     In my opinion, the evidence supports the Solicitor’s contention that it was at this October 28 meeting when the Solicitors and the Client agreed to a retainer on the basis of a contingency fee. However, I find that no precise terms (other than that the retainer would be a contingent fee retainer) were discussed or agreed to at the meeting.

[140]     The next time the issue of fees was discussed between the parties was at the December 5 meeting. It was at that meeting that Mr. Tomyn presented a draft contingency fee agreement to the Client.

[141]     On December 3, 2008, Ms. Mide-Wilson emailed Mr. Crickmore :

Hi Gavin, we are going to have to meet Friday to discuss fees as Carsten is leaving on Sunday for a month, and he needs to be there. Is it possible to meet Friday morning? It works best for Ryan and I as well. Let me know.

Kirsten

[142]     In her closing submissions, Ms. Mide-Wilson says:

The primary purpose of the December 5 meeting was to review the draft Statement of Defence and Counterclaim. There was a brief discussion of different ways of billing lawyers’ fees, and HTLN presented Ms. Wilson with a draft contingency agreement. In rough terms, that Fee Agreement would give HTLN 20% of the first $4,000,000 of any settlement plus one third of the balance, or one third of a judgment.

[143]     While I agree that one of the focuses of the December 5 meeting was to review the draft pleadings, the other was to deal with the fee arrangement and obtain a signed fee agreement with the Client. It was the Client herself (in the email I have reproduced) who confirmed the need to meet to deal with fees before Carsten Mide left for Hawaii.

[144]     It is also the case that, on December 5, little was done in relation to the fee arrangements, other than HTLN presenting a draft of a fee agreement to the Client. It was really on December 8, 2008 that the issue was “resolved”.

[145]     Each of Mr. Wilson, Ms. Mide-Wilson and Mr. Rennie testified that during the meeting on December 8, 2008 when discussing the CFA, Mr. Tomyn said that if the matter settled quickly, the CFA “would not be worth the paper it was written on”.

[146]      On cross-examination Mr. Tomyn denied having used those words:

Q         First of all, I’m advised that Ms. Wilson, or Mr. Wilson asked you more than once, what if this settles quickly and that you reassured her that if this matter settles quickly or promptly, this agreement is not worth the paper it’s written on. Do you recall an exchange like that?

A          There was no such exchange.

Q         So obviously you deny that?

A          Yes.

[147]     Mr. Tomyn did testify to an exchange between himself and the Client (and Mr. Wilson) wherein he advised both Ms. Mide-Wilson and Mr. Wilson that, if the fee charged by the Solicitors under a fee agreement between them was too high, the Client had the right to have the agreement and the fee itself reviewed by the court or a registrar.

[148]     Based on the evidence before me, I think it is more likely than not that Mr. Tomyn told the Client that, if the matter settled quickly, the agreement would not be of any force and effect and that he likely used the colloquial expression “it’s not worth the paper it’s written on”.

[149]     That, however, in and of itself, does not then lead one to the conclusion sought by the Client: that that assurance makes HTLN “guilty” of unduly influencing the Client to sign the CFA or of taking unfair advantage of her. That determination is a question of fact that I must decide in considering all of the circumstances leading up to and surrounding the signing of the CFA by the Client, some of which I have outlined above and others which are set out below.

[150]     Following the exchange about the retainer arrangements, Ms. Mide-Wilson and Mr. Wilson went to the coffee shop on the main floor of the building in which HTLN’s offices are located. During that meeting they spoke to Mr. Rennie (although the evidence is clear that Mr. Rennie was not with them for the entire time). Mr. Rennie’s testimony on this point (which I preferred over that of Ms. Mide-Wilson) was that, when asked to provide advice on the CFA, he said, “Well, you heard what Harry [Tomyn] said, and if you can rely on those words, you should sign the contingency fee agreement and if you cannot, then you should not sign it.” When questioned, Mr. Rennie noted that by “those words”, he was referring to Mr. Tomyn’s comment about the agreement not being worth the paper it was written on if the matter settled quickly.

[151]     After their coffee, Ms. Mide-Wilson and Mr. Wilson returned to HTLN’s offices. Mr. Wilson then negotiated some changes to the draft contingency fee agreement. All told, four substantive changes were made. The Solicitors have summarised these changes in their final written submissions as follows:

a)     Appeals:  while the original draft did not cover appeals, the final CFA covers all appeals except those from a trial which Kirsten Wilson lost and for which HTLN advised that HTLN did not wish to act;

b)     Contingency Percentages:  Both the draft agreement and the signed CFA describe a contingency fee as involving a percentage of the recovery, and both contained these words:  “You have asked us to act for you, and we agree to act, on a contingency fee basis.”  However, under the December 4 draft agreement, the contingency is 20% of the first $4 million of any settlement plus 1/3 of the balance, along with 1/3 of any settlement within 42 days of the first day of trial, and 1/3 of judgment. By contrast, in the signed CFA, the contingency is 20% of any settlement entered into before December 9, 2009, 25% of any settlement entered into the next two years, and 1/3 of any settlement entered into on the third anniversary, within six weeks of the first day of trial, or 1/3 of any judgment;

c)     Photocopying and Scanning:  in the draft agreement, Kirsten Wilson is responsible for all photocopying and scanning costs. By contrast, in the signed CFA, HTLN commits that it will not charge Kirsten Wilson for photocopying and scanning costs unless and to the extent that they are included in any judgment;

d)     Expert Authorization:  the draft agreement provides a blanket authorization to HTLN to hire such experts as HTLN considers appropriate. By contrast, the signed CFA states that HTLN will not incur a disbursement of more than $1,000 for an expert without Kirsten Wilson’s prior authorization.

[152]     I note that the Client does not dispute that these changes were negotiated and made to the draft agreement between December 5 (when it was first presented to the Client) and December 8 (when the CFA was signed).

[153]     Before signing the CFA, the Client did not seek to have the basic terms of the retainer (that it was to be on the basis of a contingent fee) changed, even though there is no doubt that she had some concerns about what the fees might be if the matter settled quickly. She was aware of the possibility of paying her counsel on an hourly rate basis. She had an agreement to pay Mr. Van Ommen on that basis; she had a letter from Ms. Taylor of Legacy Tax + Trust Lawyers confirming that, if she retained that law firm, she would pay hourly fees (at $320 per hour). Ms. Mide-Wilson was also aware that Mr. Hordo had told Mr. Wilson that she could expect to pay fees in the range of $2 million if the matter went to trial, then appeal and (perhaps) to the Supreme Court of Canada. While I do believe Ms. Mide-Wilson understood that if she felt the fees were excessive in the end, she had the right to have them reviewed, that was not a determinative factor in her decision to proceed by way of a contingent fee and it cannot be used, in my view, as a basis for finding the CFA unfair.

[154]     In her submissions on this point, the Client relied on Zipchen v. Bainbridge, 2008 SKCA 87 [Zipchen]. In that case, in reviewing a contingent fee arrangement between a client and a solicitor, the Court of Appeal for Saskatchewan upheld a decision of the trial judge (who was the taxing officer) setting aside a fee agreement on the grounds that it was unfair. In Zipchen, the trial judge (see 2005 SKQB 218) found that undue advantage had been taken by the solicitor in the circumstances, although it was inadvertent rather than deliberate. In reviewing the trial judge’s findings in Zipchen, the Court of Appeal says, at para. 38:

Another feature that struck a chord with the trial judge was the solicitor’s attempt to mollify the client by indicating that a court could in any event review the agreement and substitute an hourly rate if the agreement was not fair or reasonable. This was seen by the trial judge as a significant inducement to the client.

[155]     In my view, however, the decision in Zipchen is distinguishable. The suggestion made by the lawyer to the client in Zipchen that the fee agreement was reviewable was part of the totality of the evidence relied on by the trial judge to set aside the agreement. In Zipchen, the Court of Appeal found at para. 57:

The onus is upon the solicitor to satisfy the Court the agreement is fair. As the trial judge underscored, it was the solicitor pressing for a contingency arrangement at a point in time where he had the distinct advantage of being able to conduct a meaningful risk/reward assessment against an established backdrop of evidence. It was five years or more post-accident. Liability had been admitted. Much information had been amassed by the client herself. This stands in contrast to the common experience, where the contingency arrangement is concluded at the onset of litigation, and the risks and rewards of litigation are far less predictable.

[156]     In my view, considering the totality of the circumstances surrounding the signing of the CFA, HTLN’s comments do not amount to “undue influence”.

c.       Did HTLN take Unfair Advantage of the Client?

[157]     At the time she signed the CFA, the Client was aware of the risks inherent in the Action. She had also had the benefit of many meetings with Mr. Crickmore wherein she told him her life story and he advised her of his opinion on the merits of her claim. She had the benefit of discussing the provisions of the proposed contingency fee agreement with her father on December 5, and with Mr. Wilson both over the weekend and again on December 8, as he attended the meeting at HTLN with her. She asked Mr. Rennie (whom she claims to have relied on) his opinion about it. The Solicitors did tell her that they would treat her fairly in relation to their fees, and no doubt that was a factor in her signing the CFA, but I cannot say that the Solicitors took “unfair advantage” of her by telling her this. They had a legal obligation to impart to their Client the methodology for calculating their fees and to advise her of her rights to have the fee agreement (and the ultimate) fees reviewed if she wished. They fulfilled that obligation. Accordingly, I find that the Solicitors did not, in any way, take unfair advantage of Ms. Mide-Wilson in respect of the CFA.

d.       Was a Mistake Made in the Formation of the Contract?

[158]     Both Ms. Mide-Wilson and Mr. Wilson testified that they believed the CFA would not apply if the Client were successful in the Action and gained control of JCL. In fact, Ms. Mide-Wilson specifically said she thought the CFA would only apply if she received a cash settlement from Home and Gibson. She also says that the Solicitors never enlightened her as to their understanding of the CFA as they assert it; which is that the CFA applies to any settlement, including a settlement under which she gained control of JCL and became the trustee of the Jack Cewe Alter Ego Trust.

[159]     On the other hand, the Solicitors state that there can be no mistake made in the formation of the CFA as Ms. Mide-Wilson:

a)    was informed of all aspects of the CFA on a clause by clause basis; and

b)    understood the contents of the CFA and fully appreciated its nature.

[160]     They say as well that:

When the CFA is viewed from the perspective of the unequivocal instructions given to HTLN, all of the now supported and subjectively stated “misunderstandings” on the part of Ms. Wilson as to the applicability of the CFA are patently absurd.

[161]     The Solicitors have the onus of proving the retainer and, where there is a dispute between a solicitor and his client about the terms of the retainer, the words of the client are generally to be given more weight:

… the word of the client is to be accepted, or at least given more weight, unless there is some evidence to corroborate the word of the solicitor, or which tends to support the solicitor's evidence.

Any ambiguity in the fee contract will be resolved against the lawyer on the basis of the contra proferentem rule…

[Allan J. in 380876 British Columbia Ltd. v. Ron Perrick Law Corp, 2009 BCSC 601, [Ron Perrick] at para. 133, citing Master Halbert in Coates v. Buchholz and Arbutus Bay Estates Ltd. (9 September 1991), Victoria 903846 at 3 (B.C.S.C.)]

[162]     The relevant provisions of the CFA are:

FEES

Contingency Fee

Legal fees may be billed in the following ways or a combination of the following ways:  (a) by hourly rates multiplied by time spent, which fee is payable regardless of the outcome of the case; (b) a reasonable fee with reference to factors set out in the Legal Profession Act, which fee is payable regardless of the outcome of the case; and (c) as a percentage of the recovery, which is called a contingency fee.

You have asked us to act for you, and we agree to act, on a contingency fee basis.

Our fee will be whichever of the following is applicable:

a)     20% of any settlement entered into before December 9, 2009; or

b)     25% of any settlement entered into after December 8, 2009 and before December 9, 2011; or

c)     one-third of any settlement entered into on the earlier of:

a.     December 9, 2011 or thereafter; and

b.     six weeks before the first day of trial of any issue; or

d)     one-third of any judgment.

Party and Party Costs

If we successfully settle your claim or win at trial, we will seek “costs” from the other parties to help cover some of our legal fees and disbursements.

If we win at trial, you will receive the full amount of such costs that are recovered, since they are not included in the calculation of our fee. However, the costs amount is relatively small and cannot be counted on as any significant reimbursement to you for your actual legal costs.

Also, a settlement often ends up being one lump sum amount inclusive of all amounts claimed including legal costs and disbursements, and in such a case our percentage fee will be calculated on the settlement amount less our disbursements.

Payment of Settlement or Judgment

Any money from a settlement or judgment, including costs, will be paid directly to us in trust. We will deduct our fee, our disbursements, GST, and PST from any such amount.

[163]     The Solicitors argue that “settlement” can only mean what actually happened here and that the Client’s “interpretation” is absurd. In her testimony, the Client confirmed that Mr. Tomyn reviewed the CFA with her and that she read it before signing it. There is no doubt on the evidence that the Client understood that the CFA provided for fees to be paid to HTLN on the basis of a contingency fee (i.e. as a percentage of the recovery). She had experience with lawyers in the past (Van Ommen) who billed on an hourly basis. She could afford to pay hourly rates if she wished to. She was told by Mr. Tomyn the alternatives for billing and she chose the contingent arrangement.

[164]     The Client agreed that at the time she signed the CFA she was not interested in a monetary settlement. The Action was not about money. Her primary focus was the company. In fact during her cross-examination she said :

I wanted George [Home] and Alice [Gibson] gone, and I wanted them to get out of our family affairs.

[165]     The Client signed the CFA on December 8. The last page of the CFA (above the Client’s signature) contains the statement:

I have carefully read, fully understand and agree to the above terms.

[166]     The Solicitors submit it is “unpalatable” for the Client to seek to have the CFA set aside as unreasonable or unfair in the circumstances of this case. I agree with the Solicitor’s submissions. Here, the balance of the evidence supports the Solicitors. In my view, it would create a commercial absurdity if I were to find that the CFA was not intended to apply if the Solicitors were completely successful in carrying out the exact terms of their retainer in circumstances where, as here, the Client understood the basic nature of a contingent fee arrangement in general and in the face of her testimony that she had one goal and one goal only: to get the company back. Her interpretation simply cannot be upheld.

e.       Was There any Other Flaw in the Formation of the Contract?

[167]     Finally, the Client submits that the CFA must be found to be unfair as, if it were to apply to the circumstances where she gained control of the company, the CFA itself would negate the very objective for which she retained the Solicitors. Specifically she says:

If the Fee Agreement applied to the value of the company, then the company would have to be sold to pay the lawyers, thereby triggering the very event she was seeking to avoid. Ms. Wilson simply did not believe that her lawyers would seek to have her enter into a Fee Agreement that could itself prevent her from attaining her objective.

[168]     In this regard the Client submits that if the CFA is construed in such a manner as to have it apply to the situation where she gained control of the company, then she was mistaken when she signed the CFA as she did not understand the CFA to apply in those circumstances.

[169]     The Solicitors, on the other hand, reiterate that the Client’s contention (that the CFA would not apply if the Solicitors achieved the Client’s ultimate goal of regaining control of the company) would render the CFA a commercial absurdity. To give heed to the Client’s submission on this would render the CFA meaningless as, in the Client’s eyes, there was no other “settlement” possible than a settlement in which she regained control of the company.

[170]     As I noted earlier, there is no doubt that it was the Client who chose a contingent fee arrangement. Mr. Rennie (who testified that he had “no dog in this fight”) confirmed that Mr. Tomyn had, very professionally, reviewed with Ms. Mide-Wilson her options in respect of retaining counsel. Mr. Tomyn’s notes of the October 28, 2008 meeting note:

They prefer a pure contingency fee (“Option 4”).

[171]     At the time a contingency fee retainer was first discussed, the Client knew she had one goal and only one goal: get the company back. This is supported by her email to Mr. Crickmore of November 26, 2008 wherein she said (among other things):

...The other thing, and I don’t know anything about how the actual pleadings go, but can it [sic] possible to stress our desire and ability to keep the company going as per Jack’s intentions contrary to George’s and Alice’s? Do you get into my, Ryan’s or my Dad’s credentials? Such as I set up at least a $1M+ worth of business systems there and know the business intimately (save dealing with the accountants and the lawyers or lack thereof), as per my grandfather’s perspective. Ryan would be willing to leave a $700G job (for your info only please) to keep things running, and my Dad is currently trying to rid himself of a $60M project in Alberta…

[172]     Certainly before the CFA was signed, the Client had expressed a preference to HTLN to retain them on a contingent fee basis and, at the time she expressed that preference, she had an intention to keep the company going. She was aware what a contingent fee meant (and the meaning is expressed in the CFA itself as a “percentage of the recovery”, not as a percentage of any settlement monies that might be paid to her). “Recovery” was anticipated (and hoped) to be recovery of the company as a going concern. To hold otherwise makes no sense in the context of this particular retainer.

[173]     As to the Client’s ability (or lack of ability) to pay the Solicitors if she succeeded in getting the company back, the Client advised HTLN that she could pay fees on an hourly basis but she preferred a contingent fee arrangement. The Client and Mr. Wilson own a substantial home of their own in Burnaby. Mr. Wilson’s income is significant. Carsten Mide is a man of some means. The Client had an idea (from Mr. Hordo) that to take the Action to the Supreme Court of Canada might cost in the neighbourhood of $2,000,000. She was paying Mr. Van Ommen on an hourly basis at $500 per hour. She certainly understood the potential cost of the litigation. At the time she signed the CFA she anticipated that if she was successful in the Action she would receive assets worth approximately $100,000,000, including some more “liquid” assets such as Jack Cewe’s home in Port Moody worth some $2-3 million, plus cash of $500,000 from the Jack Cewe Estate.

[174]     Ms. Mide-Wilson told HTLN on more than one occasion that she did not need the money; that the Action was not about money; rather, it was about regaining her legacy. I expect however, that Ms. Mide-Wilson did not turn her mind to the actual amount that she might pay if HTLN were successful on their retainer (i.e. she did not do the math to determine that 20% of $100,000, 000 – the amount the parties all seemed to assume was the value of the company – would be $20,000,000) but that was always open to her.

[175]     In my view, the Client’s argument on this issue must also fail for the reasons outlined above. Accordingly, I find that there was no “other flaw” in the formation of the contract.

[176]     Having reviewed all of the factors that I must consider in respect of the “fairness” of the CFA, I must conclude that, at the time it was entered into, the CFA was fair.

2.       Was the CFA Reasonable at the Time It was Entered Into?

[177]     Having determined the CFA is fair; I now must consider whether it is reasonable. In Commonwealth No. 1 the Court of Appeal held, at p. 19:

The second enquiry, assuming the contract is found to be “fair” involves an investigation of the “reasonableness” of the contract. On this investigation, extending from the time of the making of the contract until its termination or its completion, all of the ordinary factors which are involved in the determination of the amount a lawyer may charge a client are to be considered, and each factor may be the subject of professional evidence to assist the judge in determining the reasonableness of the fee in the particular circumstances.

[178]     As I have already noted, the timing for embarking on a review of the “reasonableness” of the contract between a lawyer and his client was confirmed but somewhat modified by Levine J. in Randall. At paragraph 36, Her Ladyship notes:

In my opinion, the two-step process outlined in Commonwealth is still applicable to a review of a contingency fee agreement under section 78 of the Legal Profession Act. The two matters on which the registrar must be satisfied are fairness and reasonableness, and the two-step inquiry clarifies the issues involved and the questions to be considered with respect to each. The only change in the legislation from the Barristers and Solicitors Act to the Legal Profession Act is with respect to the time at which the reasonableness of the agreement is to be determined. Both fairness and reasonableness are to be determined under the circumstances existing at the time the contract was entered into. This may change some of the questions asked, but not the matters to be determined: fairness still involves the mode of obtaining the contract and whether the client understood and appreciated its content, and reasonableness still involves the amount of the fee.

[179]     The Court in Randall reviewed a number of cases dealing with the reasonableness of a contract and, more specifically, the factors a registrar must consider in determining the reasonableness of a contingency fee agreement. At paragraph 48, her Ladyship noted:

The factors described in all of these cases are similar. They include considerations relating to the complexity of the case; the difficulty of establishing liability; an assessment of the amount that may be recovered; an assessment of the quantity and nature of the work to be undertaken to achieve recovery; the time that will be involved to completion of the case; the risk undertaken by the law firm, including whether it agreed to carry disbursements; the special skill or knowledge required of counsel. In this case it must be borne in mind that it is in the context of the circumstances at the time the contract is made that the application of these factors is relevant.

[180]     In Long, Miller and Mullins v. Sawchuk, 2002 BCSC 542 [Sawchuk], Goepel J. explains how these factors should be applied at paras. 52-56:

... The New Oxford Dictionary of English defines "unreasonable" as "beyond the limits of acceptability or fairness". In my opinion, once it is determined that a contract has been fairly entered into, a registrar should be most reluctant, other than in an obvious case, to find a contract upon which the parties have relied to govern their relationship, to be unreasonable. The registrar should only do so if satisfied that the contract is beyond the limits of acceptability or fairness.

In determining whether an agreement is beyond the limits of acceptability a registrar should apply with great caution the criteria by which a legal fee will ultimately be assessed. Applying such criteria at the outset of the retainer to find an agreement unreasonable can very easily lead to an unjust result. It will be the rare case that the course that litigation will take will be known at the outset. It will often be most difficult to know, at the time the contingency agreement is signed, with any degree of certainty how complex an action may become, whether liability will be issue, the amount that may be recovered, the risk to the law firm or the time it will take to bring the action to conclusion. As noted in Commonwealth it would cast an unfair and unrealistic burden on a solicitor to investigate a case in detail before entering into a contingency contract.

An analysis of reasonableness, based on the criteria used to determine legal fees, if applied at the outset of the case, will in many cases, be little more than a speculative exercise that runs the risk that an otherwise valid contract will be set aside without consideration of what in fact has taken place during the course of the retainer. Such a result is the antithesis of what was intended by Commonwealth.

There will, of course, be cases in which the agreement is unreasonable on its face, such as Randall, or cases when at the time that the contingency agreement is entered into there will be sufficient knowledge concerning the litigation and surrounding circumstances that the registrar hearing the matter will be able to safely determine whether or not the contingency agreement is beyond the limits of acceptability. Examples of such cases may include agreements in regards to appeals such as Spraggs & Co. Law Corporation v. Lopushinsky, [2002] B.C.J. No. 444 (S.C.) or personal injury cases in which there is evidence of a serious injury and no liability issue such as Kay v. Randell, [1997] B.C.J. No. 797 (S.C. Reg.).

It is also to be remembered that when an agreement is not cancelled or modified under s. 68(6), it does not necessarily follow that the lawyer will in fact be paid pursuant to the terms of the contract. The lawyers account still remains subject to a review pursuant to s. 70 which review will determine whether the ultimate fee is in fact reasonable.

[181]     I will start by reviewing the expert opinions provided by Mr. John Hunter, Q.C. of Hunter Litigation Chambers and Mr. Darrell Roberts, Q.C. of Miller Thomson.

[182]     Mr. Hunter is senior litigation counsel at Hunter Litigation Chambers. He has a broad civil and commercial litigation and arbitration practice. He has been recognized[8] as a leading practitioner in corporate-commercial litigation. Mr. Hunter was appointed Queen’s Counsel in 1994. He served as President of the Law Society of British Columbia in 2008 and is a Life Bencher of the Law Society. Mr. Hunter is currently the Vice President of the Federation of Law Societies.

[183]     Mr. Roberts has been litigation counsel since his call to the Bar of British Columbia in 1964 (except for a five-year hiatus for graduate study, teaching at law school and directing research at the Law Reform Commission of Canada). He has considerable courtroom experience in a wide variety of both criminal and civil cases, including litigation files with various fee/retainer arrangements including contingent fee arrangements. He has acted as counsel in a number of estate matters including issues of proof of a will in solemn form, undue influence, lack of testamentary capacity and conflicts of interest. Mr. Roberts has been qualified a number of times to give expert opinion evidence on solicitors fee matters, including contingent fees, and cases involving solicitors’ negligence.

[184]     In his opinion, Mr. Hunter undertook a “fair fee approach” rather than a determination ab initio of whether the contingent fee agreement was reasonable. Mr. Hunter reviewed the factors set out in section 71(4) of the Act (although he called them the “Yule factors”) and then applied his analysis of those factors to his assessment of the reasonableness of the CFA. At pages 9 and 10 of his opinion, under the heading “assessment of the reasonableness of the contingency fee agreement”, Mr. Hunter says:

The Lee [Lee (Guardian ad litem of) v. Richmond Hospital Society, 2005 B.C.C.A 107] and Commonwealth [Commonwealth No. 1] decisions of our Court of Appeal indicate that the reasonableness of a contingency fee agreement is also to be assessed by reference to the Yule[9] factors, with particular emphasis given to two factors that are of particular importance in a contingency fee situation – the risk of no recovery and the expectation of a higher fee will [be] paid than on a conventional fee-for-services basis.

The risk of no recovery seems to have been small, although should not be discounted entirely. The case itself seems to be fairly strong. The mediation brief filed by HTLN sets out a compelling case for Wilson. While HTLN should not be disadvantaged by the fact that they marshalled a strong argument, to do so before any exchange of documents or examinations for discovery supports the view that Wilson had a strong case. By the fall of 2008, Home had indicated that he would be willing to pay Wilson $10 million. She was able to pay for a fee for services agreement. The risk for non-recovery – that is, the contingency at stake – does not appear to be a factor that would support a significantly higher fee.

There certainly an expectation in a contingency fee arrangement that a higher fee will be paid for a successful outcome than would be paid on a conventional fee-for-services basis. The reasonableness of the increase fee then becomes a matter of degree.

In this case I understand that HTLN is taking the position that the contingency fee agreement yields a fee of $16 million, based on a value of the estate of $100 million and taking account of the required payments out to the plaintiffs and to tax authorities. In my opinion, a fee of $16 million for legal work having an opportunity cost of about $1 million and which involved drafting two pleadings, arguing two motions (plus a leave application) and assisting and setting a productive strategic course cannot be described as a reasonable fee.

[185]     Conversely, in his opinion Mr. Roberts reviewed the Yule factors in the context of the Action as at the date the CFA was signed. He then proceeded to address the question of “whether the agreement operates reasonably in the context”, quoting from McEachern, C.J.B.C. in Commonwealth Investors Syndicate Ltd. v. Laxton (1994), 94 B.C.L.R. (2d) 177 (C.A.), at para. 47.

[186]     Mr. Roberts then says:

94.       In this part of my analysis the risks and expectations and the terms of the bargain weigh most heavily on the scales.

95.       I start by noting the obvious, that in this litigation over the Jack Cewe estate Kirsten Wilson was seeking something she did not have. The bulk of the large estate of Jack Cewe was not left to her; it was left to the plaintiffs. Nevertheless, as was her right, Kirsten Wilson decided to pursue the whole of the Cewe estate by challenging and attempting to have Jack Cewe’s last will set aside. In this pursuit she chose to proceed with the services of HTLN without having to pay ongoing legal fees which, through her husband, Ryan Wilson, she had been advised another lawyer had estimated at about $2 million.

96        Proceeding in this way, if Kirsten Wilson lost the case she would not be out-of-pocket for any legal expenses, other than expenses for experts, court costs and the like. She was not putting any serious money of her own at risk.

97.       On the other hand, HTLN agreed in the subject fee agreement to take all the risk. They agreed to gamble that unless they won they would receive nothing for their efforts; no legal fees were to be paid for a loss. This was a very big risk indeed. If Mr. Hordo’s observation was correct HTLN was putting at risk anywhere up to $2 million in a very uncertain endeavour.

98.       Nevertheless, this is the bargain both parties made, eyes wide open, and as a matter of judgment and experience it is my opinion there is nothing to suggest that the fee fixed by Kirsten Wilson in the fee agreement is unreasonable or that it in any way undermines the integrity of the legal profession.

99        Referring once again to the Reasons for Judgment of Mr. Justice Goepel in Long, Miller & Mullins v. Sawchuk, supra, at para 52, this is not a case to find unreasonable a contract upon which these parties have relied to govern their affairs.

[187]     At paragraph 100 of his opinion, Mr. Roberts concludes his discussion on “reasonableness” by saying:

Based on the assumed facts, this is very clearly a case in which – at the time the fee agreement was entered into December 2008 – it would have been most reasonable for HTLN to have concluded that if the agreement was presented for court review under the Legal Profession Act the court would find it to be both fair and reasonable in the circumstances.

[188]     In my view it is imperative for me at this juncture to consider specifically the factors enumerated by Levine J. In Randall, starting with the complexity of the case.

[189]     The Solicitors commenced their closing argument with the sentence “in October 2008 a small law firm took on a very large challenge.” No doubt they hold the view that the task they were facing was “formidable”.

[190]     On the other hand, Mr. Hunter for the Client suggests that this was not a particularly complex matter. In fact, he characterised it as “average”.

[191]     What then were the parties facing in December 2008 when the CFA was signed? Were they facing a “formidable” task, as the Solicitors claim; or an “average” case, as suggested by the Client?

[192]     In considering the question of the complexity of this Action, I think it helpful to reiterate a proposition stated by Dr. Cecil Wright, cited with approval by the Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876 at para. 16:

Although superficially simple, problems involved in litigation concerning the establishment of a deceased person's will against attacks of lack of testamentary capacity, fraud and undue influence, are, in the writer's opinion, second to none in difficulty…

[193]     There is no doubt that when she first met with HTLN, Ms. Mide-Wilson had no inherent interest in her grandfather’s estate. She had no right to bring an application pursuant to the provisions of the Wills Variation Act, R.S.B.C. 1996, c. 490. In order to become the primary beneficiary of the Jack Cewe estate, she would have to set aside the New Instruments on the basis that there were “suspicious circumstances” and potential undue influence in the creation of such. She would first have to show that Ms. Hamilton, a leading wills and estates practitioner, had failed in her duty as a solicitor to ensure that Jack Cewe had the capacity to enter into the New Instruments; and secondly that Home and/or Gibson had somehow unduly influenced Jack Cewe to make those New Instruments.

[194]     Prior to the signing of the CFA, the Solicitors had not interviewed many witnesses and, other than gathering information from Ms. Mide-Wilson, had not substantiated any other part of those claims except, possibly, based on the information gathered by Ms. Teetaert during her interviews with Soli.

[195]     Mr. Crickmore thought some of Soli’s evidence could be problematic to Ms. Mide-Wilson’s theory of the case. The specific areas that concerned Mr. Crickmore were:

a)    Jack Cewe had executed a patient representative agreement in October 2007 wherein he nominated Gibson and Soli as his patient representatives, not either of Ms. Mide-Wilson or Carsten Mide;

b)    Soli told Ms. Teetaert that, after Judith Wilson died, Jack Cewe told her that he wanted the house (his home in Port Moody) to go to Ms. Mide-Wilson; he wanted to donate some of his money to Eagle Ridge Hospital and Douglas College; he wanted some money to be given to employees who had been loyal to him for the last forty years; and that Gibson was going to get his life insurance.

c)     Jack Cewe did not tell Soli that he intended to leave the bulk of his estate to Ms. Mide-Wilson.

[196]     Soli’s evidence, as well as that of Mr. Wilson and Ms. Mide-Wilson, was that, even though Jack Cewe’s health was deteriorating and his macular degeneration was becoming more and more problematic, Jack Cewe’s mental acuity remained the same. It was unlikely Ms. Mide-Wilson would be able to show that Jack Cewe lacked mental capacity to instruct counsel and to decide who ought to receive his estate.

[197]     Other challenges facing Ms. Mide-Wilson in the Action in early December 2008 were:

a)    Ms. Mide-Wilson’s rights as a beneficiary were pursuant to the 1994 Will under which she is an unnamed double contingent beneficiary as a “grandchild” of Jack Cewe;

b)    It was logical for Jack Cewe to change his will in October 2007 after Judith Wilson’s death;

c)     Ms. Mide-Wilson and Jack Cewe had a significant altercation in March 2005. And, although Ms. Mide-Wilson told me she and her grandfather had reconciled their differences, no doubt, Home and Gibson (who knew of the altercation) would have used that altercation in their case for propoundance of the New Instruments;

d)    Jack Cewe did provide reasonably meaningful bequests to Ms. Mide-Wilson in the New Instruments: his waterfront home in Port Moody and $500,000 cash. This is in keeping with what Jack Cewe told Soli and what Soli recounted to Melanie Teetaert;

e)    Jack Cewe met with Ms. Hamilton, a leading wills and estates practitioner, on several occasions to execute various testamentary documents (the two October 2008 Wills, the April 2008 Will and April 2008 Trust, and the Jack Cewe Alter Ego Trust). As noted by the Solicitors in their closing argument, “why would Home steal the same estate five times, when each occasion put his larceny at risk of discovery?”; and

f)      Mr. Rennie had met with Home (October 17) who told him that he did not want to give Ms. Mide-Wilson any part of the estate.

[198]     Ms. Mide-Wilson would have to prove that Jack Cewe lacked testamentary capacity. The test for testamentary capacity is modest. In Hix v. Ewachinuk, 2008 BCSC 811, Hinkson J. (as he then was) set out the test at para. 74:

... To be of a sound and disposing mind and memory, a testator must:

1) be aware they are making the will that takes effect on their death;

2) understand the nature and extent of the estate to be disposed of by will;

3) be aware of those having a claim to the estate;

4) have no disorder of the mind.

see Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 567.

[199]     There is a presumption of capacity, knowledge and approval flowing from the fact that the New Instruments appear to have been duly executed by Jack Cewe with the requisite formalities. To counter and rebut this presumption, Ms. Mide-Wilson would be required to allege and establish, on a balance of probabilities, suspicious circumstances that would negate Jack Cewe’s capacity, knowledge and approval of the New Instruments. To do so, it would be necessary to establish circumstances creating a specific and focussed suspicion that the testator may not have known and approved of the contents of the will: see, Chang Estate v. Chang, 2009 BCSC 529, at para. 44. Mr. Crickmore was of the opinion that it would not likely be possible for Ms. Mide-Wilson to prevail on the basis of suspicious circumstances. It was his opinion that they would have to rely instead on undue influence.

[200]     The burden of proof with respect to undue influence is generally on the party attacking the validity of a testamentary instrument on such grounds. However, if it could be shown that Home was fiduciary in so far as Jack Cewe was concerned, the onus would shift to Home and Gibson.

[201]     Although the Solicitors argue that proving Home was a fiduciary would be difficult, in my view, he would likely have been found to be so as far as Jack Cewe was concerned, thus reducing the complexity of that particular matter. Even though Mr. Van Ommen did not suggest naming Home as a fiduciary as a tactic, there is case law supportive of a finding that as a chartered accountant Home was a fiduciary vis-à-vis Jack Cewe: see, Hodgkinson v. Simms, [1994] 3 S.C.R. 377. If, as an accountant, Home was held to be a fiduciary, there is a presumption of undue influence. That presumption extends to gifts from clients to their accountants. Both Emmett McGrath and Soli would support the fact that Jack Cewe placed considerable trust in Home.

[202]     However, even if there was a presumption of undue influence by Home of Jack Cewe, the Client would be left to prove that Gibson had somehow unduly influenced Jack Cewe in relation to the New Instruments. Some evidence on that point was available from both Ms. Mide-Wilson and from Soli. I believe that both of them would have been able to testify that, after Judith Wilson’s death, they were shut out of Jack Cewe’s home and life by Gibson. In fact, Soli told Ms. Teetaert that after Judith’s death Gibson summarily reduced Soli’s hours to one day per week although she apparently continued to be called in to assist Jack Cewe an additional two or three days per week.

[203]     Ms. Mide-Wilson would testify that she re-established her relationship with her grandfather; although I think she would say she did not spend much time with him at his residence but instead he more regularly visited her, her children and Mr. Wilson at their home.

[204]     Mr. Hunter, as I have already noted, suggested that the issues involved in this case could be described as “average” whereas Mr. Roberts referred to the legal services to be rendered as “formidable”. I have considered the challenges and strengths of Ms. Mide-Wilson’s case (as outlined above) and in my view, the matter lies somewhere in between. This case was neither average, nor formidable.

[205]     The next factor to be considered is the difficulty of establishing liability. Here there is no requirement, per se, to establish any liability. Neither Home nor Gibson had any pecuniary obligation (liability) to Ms. Mide-Wilson for any wrongdoing. Either the New Instruments were valid or they were not. It was not contemplated that Ms. Mide-Wilson would be paid money by Home and Gibson as compensation for her “loss” of her grandfather’s estate. In fact, as I have noted earlier, she was not interested in a monetary payment. She only wanted to become the primary beneficiary of the Jack Cewe Estate and sole trustee of the Jack Cewe Alter Ego Trust.

[206]     The next thing I must undertake is an assessment of the amount that may be recovered.

[207]     At the time the CFA was entered into, the parties appeared to be of the view that the assets making up the Jack Cewe estate and in the Jack Cewe Alter Ego Trust were valued in the neighbourhood of $100 million. I take this from several sources:

1.       Mr. Tomyn’s notes made during the initial meeting with Mr. Rennie of September 30, 2008 contain some cryptic notations such as “value of $20 – 30 M pits” and “office complex $150 M”.

2.       Mr. Tomyn’s notes of the October 1, 2008 meeting (the first meeting with the Client) contain the notation:

- 75 M Coquitlam     }

- 40 M Jervis           }         Values

115 M

[208]     The statement of defence prepared by Mr. Crickmore for Ms. Mide-Wilson to be filed in the Action (and which she reviewed in depth over the weekend of December 6 and 7, 2008) notes at paragraph 8:

As of the date of death of Mabel Cewe, the combined assets of Jack and Mabel Cewe had an estimated market value in excess of $100 million. The entirety of these assets was held by Jack Cewe, either personally or through his resulting sole shareholding interest in the Jack Cewe Group companies.

[209]     Prior to the execution of the CFA, all of the valuation “evidence” in respect of the Jack Cewe estate and Jack Cewe Alter Ego Trust came from Mr. Rennie and/or Ms. Mide-Wilson and Mr. Wilson. The Solicitors had no independent evidence expressing any value. It should be assumed then, that when the parties signed the CFA, they were all of the opinion that the value of the assets at issue in the Action was in the $100 million range.

[210]     The next thing that I must undertake is “an assessment of the quantity and nature of the work to be undertaken to achieve recovery and the time that will be involved to completion of the case”. There is no doubt that at the time the CFA was entered into, all parties were of the opinion that they were “in for the long-haul”. On October 17 Home told Mr. Rennie that he was not predisposed to give Ms. Mide-Wilson anything in addition to what had been bequeathed to her under the April 2008 Will.

[211]     As I have already noted, the instructions by Ms. Mide-Wilson to HTLN were clear: “Get me the company back”. There was no alternative. There were no other instructions.

[212]     Prior to the execution of the CFA, the Solicitors had undertaken a great deal of work, mostly general in nature and related to gathering the evidence needed to draft the pleadings. Clearly at the time the CFA was entered into a lengthy trial would have been contemplated, as would have examinations for discovery and document disclosure, none of which had happened to this point. All of the “normal” matters that would be undertaken by solicitors in the conduct of litigation involving a substantial amount were on the table to be done by the Solicitors.

[213]     Also, the required work would be very technical in nature. An evidentiary foundation would have to be built to prove all of the facts set out in the narrative pleadings drafted by Mr. Crickmore. The pleadings themselves were lengthy and involved. It would have been necessary to establish on a factual basis, most, if not all of the facts set out in the pleadings in order for Ms. Mide-Wilson to be successful in the Action. No doubt this would have taken a substantial amount of solicitors’ time. Ms. Teetaert had done a great deal of initial legal research but undoubtedly more would be necessary as the matter progressed. Messrs. Crickmore and Tomyn had been sending case law and articles on the legal issues back and forth. They put significant time into the matter before even confirming their retainer. In my view, this is partly because Mr. Crickmore, as he testified to, was very excited by the possibility of undertaking this litigation. He was not senior counsel at the time and this would likely have been one of his most difficult and large cases, particularly when considering the amount of the potential recovery for the Client. No doubt the work required by counsel to take the case to trial was considerable.

[214]     One of the factors that I must also consider (and which in my view has some precedence over the others) is “the risk undertaken by the law firm, including whether it agreed to carry disbursements”.

[215]     Mr. Hunter says this regarding the risk undertaken by HTLN at page 7 of his opinion:

Risk of non-payment seems to me a legitimate consideration in assessing a fair fee. The client may not be able to afford to pay for the services of the lawyer if the litigation is unsuccessful. This seems most significant in assessing the reasonableness of a contingency fee agreement. As the Court of Appeal stated in Lee, supra, “the ability of the client to pay (is) a factor that is critical in many, if not most, contingent fee agreements” (para. 32).

Ability to pay does not appear to be a factor here. I understand that Wilson was in a position to pay on a fee for services basis.

The questions of a risk and client expectations are complicated by the existence of the contingency fee agreement. Presumably the Law Firm would have been proceeding on the understanding that it would not be paid unless there was a successful result in the litigation.

In the end, the issue is not likely a significant one as there seems to have been no real risk of a completely unsuccessful result. I understand that in the fall of 2008, Home advised Rennie that as executor he was prepared to sell the business and pay Wilson $10 million, which Wilson refused. There could not have been any real sense that the Law Firm was at material risk of non-payment by reason of unsuccessful litigation.

[216]     Mr. Hunter provided an addendum to his expert opinion by letter of April 21, 2011 specifically in respect of the last paragraph set out above. In his letter to counsel for the Client, Mr. Hunter states:

At pages 8 and 10 of my March 15 letter I refer to my understanding that in the fall of 2008, Home advised Rennie that as executor he was prepared to sell the business and pay Wilson $10 million, which Wilson refused. Yesterday you advised me that this was not accurate and that I should assume for purposes of my opinion that in the fall of 2008, Home advised Rennie that he had been prepared to sell the business and pay Wilson $5 or 10 million but was no longer prepared to do so.

This does make a difference in my consideration of this matter. I was of the view that if Holt [sic] were prepared to pay Wilson $10 million at a very early stage of the litigation the risk of complete lack of success was minimal. If that situation had changed by the time HTLN took conduct of the defence of the litigation such that there was a non-trivial risk of non-payment, that change affects my opinion of the fee that would be fair to HTLN under all the circumstances.

In my earlier report, I expressed the opinion that a fee of $2 million would be a fair fee for the law firm. That opinion was based on the assumption that there was very little risk of non-payment in this case. On the understanding that there was in fact a risk of non-payment, it seems to me that this risk should be more fully reflected in the fee HTLN receives. Because the Court of Appeal has urged a “holistic” approach to this assessment, I cannot be analytically precise on the appropriate fee, but in my view the increased risk would support a fee in the $2.5 million range. By saying “in the $2.5 million range” I intend to convey that the fee could be somewhat higher or somewhat lower, but as an order of magnitude, such a fee would appear to me to be fair.

[217]     Mr. Roberts did not specifically opine on the issue of risk.

[218]     HTLN submit the assessment of risk should not be made with the benefit of hindsight. (i.e., I should not assess the risk knowing, as I do now, that the Action settled some nine months after the Solicitors were retained and without a trial or a lengthy, protracted process). In support of this proposition, HTLN rely on Commonwealth Investors Syndicate Ltd. v. Laxton (1992), 76 B.C.L.R. (2d) 1 (S.C.). In this decision Hall, J. (as he then was) specifically confirms at para. 123 that, even in the face of very large fees one must consider the scope of the litigation (in that case considerable) and the task facing the respondent law firm (which Hall J. noted was “fraught with difficulty”). Specifically, his Lordship states, “[i]t is all too easy in hindsight to underestimate the task and the performance…”

[219]     The Solicitors also rely on the decision of Smith J. in Endean v. The Canadian Red Cross Society; Mitchell v. CRCS, 2000 BCSC 971, wherein it was held at paragraph 28:

...The chance of success or failure at this stage was therefore a factor in the percentage fee initially agreed upon and, as well, by reason of the settlement agreement, in the lump sum fee that was later substituted for it. It would be wrong to use hindsight to give different weight to that risk than the lawyers and clients gave to it at the outset.

[220]     And, further, the Court of Appeal in Sandbeck v. Glasner & Schwartz (1989), 39 B.C.L.R. (2d) 69, specifically stated, at pp. 78-79:

With respect to the issue of risk as to non-payment for work done, I would add that this issue should not be looked at in hindsight as though we were trying the issue of liability. In his argument on appeal on the liability issue, counsel for the appellant made submissions based on speed, distances, time sequences as to the traffic lights etc. The parties to the contract do not have the advantage of such a finely-tuned analysis and cannot be criticized for making a contract in respect of reasonable and honestly held beliefs as to risk, even though hindsight may point to a lesser degree of risk.

[221]     As I have already noted, the retainer was an all or nothing proposition. If the Solicitors failed at trial to set aside the New Instruments, they (and the Client) would receive nothing. Further, the Client was not interested in any sort of monetary settlement. Given that, the risk to HTLN was considerable and should not be minimised.

[222]     In fact, to some extent, the negotiated reduction in the percentage amount payable to HTLN if the matter settled early (within the first year) shows some “consideration” given for a reduced risk, as it cannot have been contemplated that a trial could have been completed within one year of entering into the CFA.

[223]     Finally, pursuant to Randall, I must consider the “special skill or knowledge required of counsel”. No doubt this litigation required reasonably skilled counsel with some expertise in estate matters. I have already noted that Mr. Crickmore is not so-called “senior” counsel, however, at the time the CFA was entered into, Ms. Mide-Wilson had at her disposal Mr. Van Ommen, Mr. Gary Wilson, Mr. Hordo as well as the other members of the HTLN firm including Mr. Hungerford who has considerable experience as a litigator.

[224]     Mr. Crickmore testified that he was called to the Bar of British Columbia in 1995. He articled and then practiced with the law firm Campney and Murphy until August 2003 when he joined HTLN where he has practiced since. His practice focuses on litigation and he says that before being retained by the Client he had experience working on a number of very complex ligation files. He did admit on cross-examination that he did not have a great deal of experience with estate matters such as this. Mr. Rennie recommended Mr. Crickmore to Ms. Mide-Wilson because he thought Mr. Crickmore was a “talented litigator”.

[225]     Mr. Tomyn is currently a solicitor. He started his career in 1975. In the early stages of his practice he did mostly barristers’ work including personal injury litigation which he took on the basis of contingency fees. In the 1990s he began taking on some solicitor’s work and, over time, he became (mostly) a solicitor. As such, he has acted for a number of clients on sales and purchases of businesses, corporate organizations and some real estate work. He also has a wills and trusts practice and has drafted bare trusts, inter vivos trusts, testamentary trusts, alter ego trusts and spousal trusts.

[226]     Ms. Teetaert was called to the Bar in Alberta in 2002. She articled and then practiced with Burnett Duckworth and Palmer in Calgary. In 2005 she moved to Vancouver and practiced as an associate lawyer with Stikeman Elliott until she moved to HTLN in February 2008. She was asked to get involved in the Action as she had been involved, while at Burnett Duckworth, in an estate case with a testator who had macular degeneration.[10] Ms. Teetaert described that case (on which she worked extensively) as a large estate file involving issues with testamentary capacity and issues over wills. Also involved, apparently, were claims against the estate by a mistress.

[227]     Mr. Manolis, who assisted with some research, was called to the Bar of British Columbia in 2002. His practice is focussed in the area of civil litigation. He has a Ph.D. in international maritime and commercial law.

[228]     Both Ms. Mide-Wilson and Mr. Wilson testified they were impressed with the lawyers at HTLN; most specifically Mr. Crickmore. As have confirmed earlier, Mr. Rennie recommended HTLN based on his experience with both Mr. Tomyn and Mr. Crickmore, and because, in his view, Mr. Crickmore was a “talented litigator”.

[229]     In my view HTLN had the requisite skill and expertise to take on this matter for the Client and one of the reasons the Client chose HTLN was because she felt they had her best interests at heart; she trusted them; and she believed they would do a good job for her. Mr. Crickmore was passionate and excited about the prospect of taking on the Action.

[230]     As I have earlier noted, the parties seemed to be of the opinion, at the time that the CFA was entered into, that the value of the estate was some $100 million. If that proved to be the case and the matter settled in the first year, the Solicitors would be entitled to be paid fees of some $20 million. Mr. Hunter suggests that a fee of that size, whether actual or contemplated, would bring the legal profession into disrepute. He suggests that the provisions of the Act (s. 68(5)) and of the Law Society Rules (specifically Part 8 which requires a lawyer to charge “reasonable remuneration”) put a “cap” on fees. Particularly, in relation to the fee, Mr. Hunter says at page 10:

The question then, assuming that the parties were working on the basis that the value of the estate was $100 million, is whether it was reasonable on December 8, 2008, that HTLN should be paid a fee of $20 million if the litigation was settled by December 9, 2009. It is difficult to see how such a huge fee could be justified for simply being the lawyer of record if the case happened to settle, independent of any consideration of the work done by the law firm.

[231]     Mr. Roberts did not specifically deal with this issue in his opinion. On cross-examination he agreed that had the Action settled on December 9, 2008 it would likely be unreasonable for the law firm to request and be paid a fee in the $16-20 million range.

[232]     With the greatest of respect to both Mr. Hunter and Mr. Roberts, the question I must pose is not: If the Action settled on December 9, 2008 would the contemplated fee be reasonable? Rather, I must ask myself: Whether, on December 8, 2008, considering what the parties knew, were the contemplated fees as set out in the CFA reasonable?

[233]     I have described in great detail earlier in these reasons what the parties knew on December 8, 2008. I will not repeat all of those specifics in detail here but I will say this:

On December 8, 2008:

a)    Everyone believed they were in the Action for the long-haul;

b)    Home had told Rennie on October 17 that he was not interested in paying Ms. Mide-Wilson anything;

c)     Ms. Mide-Wilson was not interested in a settlement wherein she was paid money by Home and Gibson; she wanted the company back;

d)    A significant amount of legal work would be necessary on a go forward basis; and

e)    The value of the assets was somewhere in the $100 million range.

[234]     Considering all of these matters, I must ask myself (see Commonwealth Investors Syndicate Ltd. v. Laxton, (1994) 94 B.C.L.R. (2d) 177 (C.A.), per McEachern C.J.B.C, at para. 47):

... 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.

[235]     There is no doubt that a fee of $20 million is significant. I do not believe that anyone could say otherwise. But was it “unreasonable”? I think not considering all of the circumstances of the Action and the specifics of the retainer between HTLN and Ms. Mide-Wilson on December 8.

3.       Are the Solicitors Estopped from Claiming Fees under the CFA?

[236]     In her submissions, the Client argues that, even if I find the CFA to be “fair” and “reasonable”, HTLN ought to be estopped from claiming under the CFA for four reasons:

a)    HTLN’s reassurances to the Client that, if the litigation settled quickly, the CFA wouldn’t “be worth the paper it’s written on”;

b)    the Solicitors’ failure to advise the client on December 8, 2008 that those reassurances no longer applied in light of the changes to the contingency percentages (if that in fact was HTLN’s view);

c)     the Solicitors’ failure to advise Ms. Mide-Wilson when the Home and Gibson settlement offers were received in July of 2009 that the CFA applied to a settlement of the nature proposed by Home and Gibson (whereby Ms. Mide-Wilson would receive the company in exchange for paying out money, as opposed to a settlement where Ms. Mide-Wilson received money); and

d)    the Solicitors’ failure to answer the client’s questions during the mediation regarding the amount of HTLN’s fee.

[237]     Nathanson, Schachter & Thompson v. Inmet Mining Corp., 2009 BCCA 385 [Inmet], held that in certain circumstances a law firm may be estopped from claiming fees based on conduct and more particularly for representations made by the law firm to a client. At paragraph 58 the Court said:

The essence of estoppel in this context is a representation by words or conduct that induces detrimental reliance. However, the representation need not be a positive one. As the Supreme Court of Canada said in Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, 254 D.L.R. (4th) 1:

Silence or inaction will be considered a representation if a legal duty is owed by the representor to the representee to make a disclosure, or take steps, the omission of which is relied upon as creating an estoppels. [At para. 76.]

[238]     Here, the Client suggests that she relied on Mr. Tomyn’s statement to her detriment and thus, HTLN are estopped from claiming under the CFA.

[239]     As I have earlier determined that the alleged “assurances” by HTLN that if the litigation settled quickly the CFA would not be worth the paper it was written on did not induce Ms. Mide-Wilson to sign the CFA, this argument must fail. If such assurances do not render the CFA unfair, in my view, it follows that the Solicitors should not be estopped from claiming under the CFA for making such assurances.

[240]     The same analysis applies to the second argument: that HTLN had an obligation to advise the Client that, having negotiated changes to the CFA, any prior statements made by them regarding the CFA not being worth the paper it was written on were no longer in force and effect. Regardless, I do not think the Solicitors here are taking the position that by negotiating changes to the CFA, the Client cannot rely on statements they may have made in respect of it.

[241]     In further response to this argument, the Solicitors contend that to deny them a fee when they have fully carried out their instructions and obtained the result sought by the Client is “draconian” and is a remedy that should be reserved only for cases of serious misconduct. Specifically they submit:

In these circumstances, where the result achieved was so exceptional, and the fee so significant under either a contingency or quantum meruit basis, to deny the fee would be perverse.

[242]     In Chudy v. Merchant Law Group, 2008 BCCA 484, the Court of Appeal upheld a decision to deny a solicitor his fee on the basis of the solicitor’s misconduct. The trial judge (see 2007 BCSC 279) found that:

a)    The solicitor’s evidence was not helpful;

b)    It was impossible to reconcile the solicitor’s trust accountings with the monies received by him from his client;

c)     The solicitor made misrepresentations to the client which induced the client to sign a contingent fee agreement with the solicitors; and

d)    To allow the solicitor to recover in any way for the services rendered to his client would sanction duplicitous actions taken by him.

[243]     In Ron Perrick, Allan J. denied the law corporation fees on a quantum meruit basis for misconduct which included:

a)    Removing trust funds from trust without informing its client and without rendering an account;

b)    Refusing to provide an account to its client and; when an account was provided, backdating the account to predate litigation commenced by the clients; and

c)     Fabricating a story relating to the fee agreement which story was helpful to his case.

[244]     The Solicitors submit that the Client’s allegations most certainly do not come close to the level of misconduct required to deny a solicitor his fees, such as that of Mr. Perrick or the Merchant Law Group. I agree and I would not deny the Solicitors fees for their failure (if any) to advise the Client that the negotiated changes to the fee agreement rendered prior statements inapplicable.

[245]     In respect to the third issue (HTLN’s alleged failure to confirm to the Client upon receipt of the initial Home and Gibson offer and any offers thereafter that the CFA would apply in those circumstances), as I have found against the Client’s contention that the CFA would not apply if she obtained what she had retained the Solicitors to obtain for her (the company), I cannot then find that the Solicitors had an obligation to advise Ms. Mide-Wilson when the settlement offers were made that they intended to collect their fee from the assets of the company or based on its value. Ms. Mide-Wilson must have known at the time she signed the CFA that “settlement” included a scenario where she received Jack Cewe’s corporate assets, especially as those were her unequivocal instructions to the lawyers.

[246]     Lastly, the Client suggests that the Solicitors failed to properly answer her questions during the mediation as to the amount of their fees and therefore they are estopped from claiming any fee.

[247]     The parties’ evidence differs in respect of what discussions they had (or did not have) about fees during the mediation. Mr. Hungerford testified that during the mediation he advised Ms. Mide-Wilson and Mr. Wilson to accept the $8 million offer from Home and Gibson. He also said that, in giving them this advice, he confirmed that by accepting the offer, the Client could “take advantage” of the lower percentage fee expressed in the CFA because, if the matter went to trial, HTLN’s fee would be based on a higher percentage of the “recovery”. Both Mr. Wilson and Ms. Mide-Wilson deny Mr. Hungerford told then any such thing.

[248]     Mr. Wilson and Ms. Mide-Wilson also testified to an alleged conversation they had with Mr. Tomyn during the mediation. Both suggest that they specifically asked Mr. Tomyn what HTLN’s fees might be but that Mr. Tomyn “deflected” their queries and told them rather to focus on getting a deal done with Home and Gibson; not on the amount of the fees they might be required to pay HTLN at the end of the day.

[249]     In her submissions, the Client suggests that her evidence and that of Mr. Wilson’s is more credible on these issues as it would make sense for them to want to know how much they might be expected to pay the lawyers (and, in fact, it would be strange for them not to want to know). She submits it would be much more natural for her to ask Mr. Tomyn and/or Mr. Crickmore (with whom she had a relationship) about this but that it would not be natural for either her or Mr. Wilson to discuss fees with Mr. Hungerford whom they met only at the mediation or shortly before.

[250]     On this point, in general, I preferred the evidence of Mr. Hungerford regarding his role and discussions with the Client and Mr. Wilson during the mediation to that of the Client and Mr. Wilson. Mr. Hungerford presented as a thoughtful and truthful witness in this hearing. It is telling that counsel for the Client was not prepared to suggest during his submissions that Mr. Hungerford was not being truthful about what he said to Ms. Mide-Wilson and Mr. Wilson during the mediation. The furthest he would go was to say that any comments Mr. Hungerford claims to have made about fees must have been made “in passing” and that such “in passing” comments failed to register with either Mr. Wilson or Ms. Mide-Wilson.

[251]     The Client’s assertion that they asked Mr. Tomyn about the expected amount of the fee at the mediation was not put to Mr. Tomyn in cross-examination. This assertion is part of a very significant issue raised by the Client: she seeks to deny the Solicitors their fees based on their alleged failure to fulfill an obligation to her to answer her questions about fees at the mediation. In my view the Client’s assertion on this point must not succeed based on the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) [Browne], due to her failure to raise this point with Mr. Tomyn in cross-examination. In Browne Lord Halsbury said, at pp. 76-77:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.

[252]     Mr. Tomyn should have been given the opportunity to answer this allegation and, as he was not, I should not (and will not) find against the Solicitors based on this alleged failure, particularly where the remedy sought (denial of fees) based on the allegation is of so severe a consequence to the Solicitors.

[253]     In my view, the Client’s assertion must fail for other reasons as well. The evidence shows that Mr. Crickmore was always available to the Client and Mr. Wilson during the mediation. If either of them had any questions about the amount of the fee they likely would have directed those questions to Mr. Crickmore, not to Mr. Tomyn. The Client, in her submissions, suggests that her relationship with Mr. Crickmore was partially responsible for “lulling her” into entering into the CFA (she had spent some two months in discussions with him about her entire life story). She cannot now suggest that she would not have asked Mr. Crickmore questions about the fees, but only Mr. Tomyn.

[254]     I therefore cannot find that the Solicitors failed to answer the Client’s questions during the mediation regarding the amount of their fees, and thus they are not estopped from claiming any fees under the CFA.

What is the Value of the Trust Assets?

[255]     As I have decided that the CFA is fair and reasonable, all other things being equal, the Solicitors are entitled to be paid fees equal to 20% of the value of the assets Ms. Mide-Wilson gained through the settlement of the Action. I must now therefore address the issue of the value of those assets.

[256]     The assets at issue are those owned by the Jack Cewe Alter Ego Trust (the “Trust Assets”) as at August 31, 2009 (the “Valuation Date”). The Trust Assets consist of:

1.               100% of the shares of Cewe Holdings Ltd. (“CHL”);

                                     i.                    100% of the shares of Jack Cewe Ltd. (“JCL”);

                                    ii.                    100% of the shares of Ridge Gravel & Paving Ltd. (“Ridge”);

                                  iii.                    100% of the shares of Heather Construction Co. Ltd. (“Heather”);

                                  iv.                    100% of the shares of Jack Cewe Inc.

                                   v.                    20% of the shares of Shoshone Construction Ltd. (“Shoshone”);

2.               Certain real property:

                                     i.                    Parcels of land located in Coquitlam and used in the Pipeline operation (1640, 1681, 1700, 1750, and 1760 Pipeline Road);

                                    ii.                    1641 Pipeline Road (a residential dwelling near the Pipeline pit operations and used as administrative offices);

                                  iii.                    a parcel of land at 1701 Lougheed Highway, Coquitlam (“1701 Lougheed”) some of which is used as a works yard for the Field Operations Division of JCL.

[257]     CHL is a real estate holding company. Its assets consist of the land and buildings at 1850 Hillside Avenue (“Hillside”) (site of the corporate offices of CHL, JCL, Shoshone, Ridge and Heather) and unimproved land at 1782 Coleman Avenue and 1778 Coleman Avenue in Coquitlam, British Columbia (the “Coleman Properties”).

[258]     JCL was founded by Jack and Mabel Cewe in 1947. As a general contractor JCL has provided construction services and aggregate supplies to various entities in the Lower Mainland and coastal areas of British Columbia for over fifty years. Projects include major road reconstruction, government transportation, local improvement, and industrial projects.

[259]     JCL has an administrative division (the “Administrative Division”) plus three operating divisions as follows:

(a)      an aggregates and gravel extraction and asphalt mixing operation located on and around Pipeline Road in Coquitlam, British Columbia (“Pipeline”);

(b)      an aggregates and gravel extraction operation located on the east side of Jervis Inlet, on the Sunshine Coast of British Columbia (“Jervis”); and

(c)      a road construction operation based at the Coleman/Hillside and 1701 Lougheed locations and operating throughout the Lower Mainland of British Columbia (the “Field Operations Division”).

[260]     The Field Operations Division contains JCL’s construction contracting business, focussing primarily on road construction, through both government and private sector projects. A significant source of its recurring revenue is from local municipalities in British Columbia. This Division utilizes material from the Pipeline and Jervis quarries which each operate under their own divisions. Pipeline and Jervis provide quarry materials to the Field Operations Division at an internal price below that charged to external customers.

[261]     Pipeline supplies a variety of aggregate materials and hot asphalt mix produced by an on-site asphalt plant to customers in the Lower Mainland area of British Columbia. The majority of the asphalt mix produced by Pipeline is utilized by the Field Operations Division.

[262]     Jervis is located in an area on the Sunshine Coast off the electric power grid with no road access. Its end products are carried by conveyor to a loading area and loaded onto barges for offshore deliveries to customers on the West Coast of North America.

[263]     Both Pipeline and Jervis operate through Crown licenses.

[264]     Ridge’s sole function is to provide labour services to JCL (drivers of company dump trucks). Heather’s sole function is also to provide labour services to JCL (operators of equipment, crusher wash plant loaders and excavators). Shoshone was not active as at the Valuation Date. In earlier years, Shoshone provided non-union office labour to JCL.

[265]     Jack Cewe Inc. is a wholly owned subsidiary of JCL. It is a US based company with minimal transactions. Jack Cewe Inc. was inactive as at the Valuation Date and no value has been ascribed to it in any of the valuation reports.

1.       Experts

[266]     HTLN retained the following experts to value the Trust Assets: 

Gravel reserves:  Eric Beresford (“Beresford”), Professional Engineer;

Real estate (1701 Lougheed, Hillside, and Coleman Properties):  Carl Neilsen (“Neilsen”), Accredited Appraiser;

Pipeline and Jervis:  Keith McCandlish (“McCandlish”), Professional Geoscientist and Professional Geologist; and

Field Operations Division of JCL:  Margaret McFarlane (“McFarlane”), Chartered Business Valuator (BDO).

[267]     Ms. Mide-Wilson retained the following experts to value the estate: 

Gravel reserves:  No expert (Ms. Mide-Wilson relied on Beresford’s reports in respect of both Pipeline and Jervis);

Real estate (1701 Lougheed, Hillside, Coleman Properties, as well as some of the properties located at the Pipeline Road Quarry):  Andrea Franz and Larry Dybvig, Accredited Appraisers;

Pipeline and Jervis:  Paul McEwen (“McEwen”), Chartered Business Valuator (Ernst & Young); and

Field Operations Division of JCL: McEwen.

[268]     The parties have reached agreement on the following aspects of the valuation: 

(a)      The volume of remaining reserves of sand and gravel at Pipeline and Jervis;[11]

 (b)     1701 Lougheed:  Agreed value is $6,716,613.00;

(c)      Hillside:  Agreed value is $1,248,144.00;

(d)      1778 Coleman Avenue:  Agreed value is $540,121.00; and

(e)      1782 Coleman Avenue:  Agreed value is $540,121.00.

[269]     The parties disagree on the values of Ridge, Heather and Shoshone although the differences between them in respect of those particular assets are relatively minor in the overall scheme of things.

[270]     The parties’ main areas of disagreement are in respect of the values of Pipeline, Jervis and the Field Operations Division.

[271]     Specifically the parties’ experts have valued the Trust Assets as follows:

 

 

McFarlane/McCandlish

McEwen

JCL

106,050,000[12]

44,707,000

CHL

2,500,000

2,655,000[13]

Ridge

140,000

136,000

Heather

50,000

49,000

Shoshone (20% only)

7,000

7,000

Jack Cewe Inc.

0

0

Total Shares

108,747,000

47,554,000

1701 Lougheed (agreed value)

6,717,000

6,717,000

Total Value of Trust Assets

$115,464,000

$54,271,000

 

a.       McCandlish Report

[272]     HTLN retained McCandlish to value Pipeline and Jervis. McFarlane (who was retained by HTLN to value the Field Operations Division and JCL as a whole) used McCandlish’s values for Pipeline and Jervis to reach her conclusion as to the value of JCL as a whole.

[273]     McCandlish is a professional geologist and professional geoscientist. He is a member of the Mining Technical Advisory and Monitoring Committee for the Canadian Securities Administrators, which assisted in the drafting of National Instrument 43-101. He has acted as a mining consultant to the Alberta Stock Exchange, the CDNX, the Toronto Stock Exchange (“TSX”) and the TSX-Venture Exchange.

[274]     McCandlish advises a number of hedge funds and merchant banks on their investments in mineral properties around the world. He has valued more than 100 mineral properties in his career, including:

(a)      Quarries (aggregate as well as limestone);

(b)      Placer mines (generally a gravel quarry which also has a precious metal element);

(c)      Gold, silver platinum, copper, base metals (to a lesser extent); and

(d)      Open pit and underground mines.

[275]     McCandlish prepared his report in accordance with the 2003 “Standards and Guidelines for Valuation of Mineral Properties”, established by the Special Committee of the Canadian Institute of Mining, Metallurgy, and Petroleum on Valuation of Mineral Properties (“CIMVAL”). Although McCandlish is not a certified business valuator (as are both McFarlane and McEwen), under CIMVAL, McCandlish is a qualified valuator of mineral properties.

[276]     Mr. Gruber (counsel for Ms. Mide-Wilson) asked McCandlish a number of questions about his qualifications. Specifically he noted that McCandlish does not have a university degree (although he has studied at both the University of Cape Breton and the University of Calgary). Mr. Gruber also noted that one “self-identifies” as a “qualified valuator” under CIMVAL. Ultimately, he did not dispute that McCandlish should be admitted as an expert and I admitted him as such. Mr. Gruber did, however, take issue with some of the methodology used by McCandlish (and McFarlane who incorporated McCandlish’s values of Pipeline and Jervis in her valuation of the Field Operations) in valuing Pipeline and Jervis. I will deal with those issues later in these reasons.

[277]     McCandlish’s report was authored based on instructions from HTLN’s counsel and in accordance with CIMVAL. He made a number of assumptions in arriving at his valuation. Assumptions are an important part of valuation. Generally speaking, the assumptions made by all of the experts were similar and were generally not contentious. I will therefore not repeat them here; although where the parties differ and such differences are germane to the issues at hand, I will review them as appropriate in the applicable section of this decision.

[278]     McCandlish visited the two quarries and viewed the safely accessible pits, equipment and infrastructure. He determined that these accorded to industry standards and there were no major operational issues that would prevent the mines from continuing to operate.

[279]     McCandlish’s report confirmed that his valuation is premised on Jervis and Pipeline being individual producing entities; however he noted he was aware that the Pipeline and Jervis properties “are integral to a business undertaking falling under a broader umbrella, a valuation of which is being prepared by others”. In his report, McCandlish confirms that his assessment of the fair market value of these two assets is the value he believes could be achieved from a sale of Pipeline and Jervis as at the Valuation Date.

[280]     CIMVAL defines “fair market value”[14] (FMV) as:

... the highest price, expressed in terms of money or money’s worth, obtainable in an open and unrestricted market between knowledgeable, informed and prudent parties, acting at arm’s length, neither party being under any compulsion to transact. [Income Tax Act, [R.S.C. 1985, c. 1 (5th Supp.)].

[281]     CIMVAL accepts three valuation approaches: the income, market and cost approaches. Determining which approach to use depends on the development stage of the mineral property: exploration, mineral resource, development or production. In his report, McCandlish says that, as in his opinion Pipeline and Jervis are “production” properties, the market and income approaches to valuation are the proper approaches to take in valuing Pipeline and Jervis. According to CIMVAL:

The Market Approach is based primarily on the principle of substitution and is also called the Sales Comparison Approach. The Mineral Property being valued is compared with the transaction value of similar Mineral Properties, transacted in an open market. Methods include comparable transactions and option or farm-in agreement terms analysis.

The Income Approach is based on the principle of anticipation of benefits and includes all methods that are based on the income or cash flow generation potential of the Mineral Property.

[282]     McCandlish’s valuation is based on an income approach and is the net present value of future cash flows accruing during the life of the mine on a pre-tax basis. In his report, McCandlish confirms his choice of this method. Specifically he notes that, as there were no useful comparisons to Jervis or Pipeline, he employed the discounted cash flow method (an income approach method) as his primary method of valuation.

[283]     In his report, McCandlish explains that a discounted cash flow (DCF) is:

...the net present value of a time series of cash flows, these cash flows being the periodic future income from the mineral property. The values of the future individual periodic cash flows are discounted using a discount rate to a present value. The sum of the present values is the net present value.

[284]     For the purposes of valuation and in considering the duration of cash flows from each of Jervis and Pipeline, McCandlish assumed that market conditions will enable extraction of the entire resource and that extraction rates will be close to historical rates. Specifically, based on historical rates of extraction at both Pipeline and Jervis, McCandlish concluded that the life of Pipeline was 75 years and that of Jervis was 18 years.

[285]     McCandlish noted the effect of the 2008 recession on the BC aggregates industry; however, he observed that by mid-2009 there was reason for optimism as indicated by an upward trend in the TSX and an article that appeared in the US Society of Mining Engineers annual outlook indicating that the US stimulus plan and general economic recovery should lead to strong growth in 2010 and 2011. He concluded that a valuator should take an optimistic view in late 2009 such that “markets and product pricing would at least be maintained to the value of the three-year trailing average”.

[286]     McCandlish noted that the discount rate chosen is critical to his valuation. In general terms, according to McCandlish, the discount rate selected reflects the risk-free interest rate, the weighted average cost of capital (“WACC”), the project risk and the location risk. The discount rate is chosen by the valuator based on his experience in valuing similar properties and considering these listed items.

[287]     The risk-free interest rate is derived from the long-term interest rate on government bonds which McCandlish found to be 2.14%[15] based on the average monthly real return of Canadian Government bonds during the 12-month period prior to the Valuation Date.

[288]     In his report, McCandlish describes WACC as:

...the rate that a company is expected to pay on average to all its security holders to finance its assets and is the minimum that a company must earn to satisfy its creditors, owners, and other providers of capital, or they will invest elsewhere.

[289]     Although it is generally a factor in selecting a discount rate, here McCandlish did not factor the WACC into the discount rate he chose for Pipeline and Jervis. He explained that, in his view, WACC is an important factor in the valuation of start-ups requiring large investments before creating positive cash flows, but as neither Pipeline nor Jervis are start-up entities, he concluded that WACC ought not to be a factor in his valuation of Pipeline and Jervis.

[290]     Project risk is specific to the properties in question; i.e. the risk that the project will not perform well enough to generate the projected cash flows. This factor takes into account the chance of:

a)    catastrophic loss of infrastructure due to accident or force majeure;

b)    reduced revenue due to reduced sales volume or unit price; and

c)     increased costs of production due to increased input costs.

[291]     McCandlish found catastrophic loss to be very unlikely as the properties are mature and well-managed and located in a fairly benign meteorological environment. However, he determined that an increase in the discount rate of 2.86% was warranted to account for risks of reduced revenue and increased costs. McCandlish felt that there was no location risk[16] and made no adjustment to his discount rate to account for location risk.

[292]     McCandlish added the risk free interest rate of 2.14% to the project risk of 2.86% to arrive at a real discount rate of 5%. It should be noted that both McFarlane and McEwen used nominal rates, i.e. adjusted for inflation. It was agreed that McCandlish’s 5% real rate equates to a 7% nominal rate.

[293]     Based on documents provided to him by JCL, McCandlish calculated the time series cash flows in 2009 dollars, including royalties and reclamation charges. McCandlish used a trailing three year revenue per tonne (an approach he says is common in the minerals industry and required by the US Securities and Exchange Commission for projecting forward pricing). He also opined that the internal sales pricing is likely the most accurate measure of actual costs of production. Based on all of these factors, for Pipeline, McCandlish found an operating margin of $3.51/t. He says that, over a 75 year life and using a discount rate of 5% the net present value (NPV) of Pipeline is $86 million.

[294]     With respect to Jervis, McCandlish believed the data provided by JCL was developed to persuade the Province of BC to reduce its royalties on aggregates sold by showing economic losses. McCandlish determined that the trailing three year average costs per tonne reflected by the internal material transfer costs averaged $4.21/t for 2006 to 2008 but that the $2.60 value for 2006 was lower than acceptable. He therefore was of the opinion that a more appropriate value was in the order of $5.15/t. McCandlish determined the operating margin to be $3.68/t for the purposes of his NPV calculation. This, over an 18 year life at a 5% discount rate produced a NPV for Jervis of $32.1 million.[17]

[295]     McCandlish considered employing a market approach valuation as a secondary method of valuation. This method (also called the “sales comparison approach”) entails comparing the two properties being valued with the transaction value of similar mineral properties transacted in an open market.

[296]     As he could find no open market sales transactions, McCandlish turned to another secondary method of valuation within the market approach known as the market capitalization method. McCandlish was only able to find one suitable comparable: Polaris Minerals Corporation (“Polaris”), a coastal BC aggregate producer listed on the TSX. He noted that while Polaris was the only suitable comparable, the differences between it and Pipeline and Jervis were significant enough that the market approach to valuation could only be used as a secondary check.

[297]     In his report, McCandlish finds:

The range of values for the Pipeline Road property derived from the Market Approach is between $20.25 million and $77.2 million, with an average value of $51.1 million.

The range of values for the Treat Creek [Jervis] property derived from the Market Approach is between $11.1 million and $48.4 million, with an average value of $23.9 million.

Although the operations are not exact comparables, it is the author’s opinion that the value ascribed to the operations of Polaris Minerals by virtue of their market capitalization provides a useful lower bound value for the fair market value of Jack Cewe Properties.

[298]     As noted earlier, based on the income approach (his preferred method of valuation) McCandlish found values of $86 million for Pipeline and $32.1 million for Jervis.

b.       McFarlane Report

[299]     McFarlane was asked to provide a fair market value opinion of the Trust Assets as at the Valuation Date. McFarlane is a partner at BDO Canada LLP, Chartered Accountants and Advisors and a Senior Vice-President, BDO Canada Corporate Finance Inc. She is a member of the Law Society of British Columbia, a Chartered Accountant and a Certified Business Valuator. McFarlane is also a member of the Board of Governors of the British Columbia Institute of Technology and a member of the Institute of Chartered Accountants of British Columbia (“ICABC”) Rulings Committee. She is the past Vice-Chair of the Professional Conduct Enquiry Committee of the ICABC. McFarlane has been qualified as an expert witness and has previously given testimony as such in this court.

[300]     The Client did not dispute McFarlane’s qualifications as an expert and I admitted her as such for the purposes of providing expert opinion evidence as to the value of the Trust Assets.

[301]     McFarlane prepared two reports: (a) an Estimate Valuation Report dated March 24, 2011 (the “BDO Valuation Report”) wherein she opines on the value of the Trust Assets, including the Field Operations Division and, using McCandlish’s report, the overall value of JCL; and (b) a Limited Critique and Addendum Report dated April 21, 2011 (the “Critique Report”) wherein she comments on McEwen’s report and revises her valuations in the BDO Valuation Report based on additional documentation provided to her pertaining to equipment used in the operations of JCL. For ease of reference I will refer in general terms to the BDO Valuation Report and the Critique Report collectively when I refer to McFarlane’s “report.” Where needed I will specify to which individual report I am referring.

[302]     McFarlane noted that her reports conform to the Practice Standards for Limited Critique and Valuation Reports of the Canadian Institute of Chartered Business Valuators of which she is a member. The BDO Valuation Report includes a valuation of JCL, CHL, Ridge, Heather, Shoshone, and Jack Cewe Inc. In preparing that report, McFarlane was asked to rely on the real estate appraisals prepared by Nielsen and McCandlish’s report for the values of Pipeline and Jervis.

[303]     McFarlane noted that in the McCandlish report the quarries were valued based on the preferential internal pricing of materials extracted from the quarries and supplied to the Field Operations Division. Specifically McFarlane states:

In other words, the McCandlish Report has assumed that the quarries will continue to supply the quarry materials to the Field Operations Division at preferential internal pricing below market value.

[304]     Because of this, HTLN’s counsel asked McFarlane to specifically include the value of the synergies experienced by the Field Operations Division as a result of being able to purchase materials from the quarries at discounted market prices.

[305]     For the purposes of her report, McFarlane defines FMV as:

...the highest price, in terms of cash equivalents, at which property would change hands between a hypothetical willing and able buyer and a hypothetical willing and able seller acting at arm’s length in an open and unrestricted market when neither is under compulsion to buy or sell and when both have reasonable knowledge of the relevant facts... taking into account the synergies referred to in paragraph 5 [with respect to the quarries]”.

[306]     McFarlane, like McCandlish, outlines a number of assumptions she made in preparing her report. Of significance, she mentions that JCL has not received any offers to purchase the company as a whole or any of its significant assets in the last five years. She notes that, because of this, she did not consider “special purchasers” in her analysis of the value of the Trust Assets. I will return to this comment later in these reasons.

[307]     Her report notes that there is no depreciation recorded in the operating statements of the Field Operations Division because equipment costs are allocated from the Administrative Division to the Field Operations Division, similar to how an equipment holding company would lease contracting equipment to an affiliated operation company. Consequently, her valuation focuses on earnings before interest and tax (“EBIT”) rather than earnings before interest, tax, depreciation and amortization (“EBITDA”), the focus used by McEwen in his report.

[308]     McFarlane set out the financial position and operations of each of the companies in her report, followed by the industry and economic conditions and outlook. She allocated the total net income of JCL amongst the three operating divisions and the Administrative Division.

[309]     McFarlane used data on the road construction industry taken from a Management Discussion & Analysis report of specific Canadian public companies having an infrastructure general contracting division. She concluded that the heavy civil road construction industry includes various public and private sector clients. The industry is highly fragmented with a number of national, regional and local construction firms. Key drivers for success include securing profitable construction contracts and controlling the costs associated with them. Work is often obtained through a competitive bidding process in response to advertisements by federal, provincial and local governments, and is sometimes negotiated with private clients.

[310]     According to McFarlane, a number of variables may negatively or positively affect the actual performance of a contract as compared to its bid price:

a)    contracts are performed on a lump sum basis where contractors are committed to providing materials/service at fixed unit prices -- if the cost of inputs increases, this is borne by the contractor;

b)    the completeness and accuracy of the original bid;

c)     added scope changes; weather/other delays;

d)    subcontractor performance issues; changes in productivity expectations; site conditions which differ from those cited in bid; and

e)    availability/skill level of workers.

[311]     McFarlane also noted that the road construction industry is cyclical, usually following the state of the economy. It is also highly competitive such that when contracts are scarce, bid values will drop, reducing profitability of contracts. However, in early 2009 as a result of the economic downturn, the federal government pledged $12 billion over two years to stimulate overall economic recovery. The 2010 Olympics was an additional driving force of government spending to improve infrastructure in the region.

[312]     McFarlane summarized the economic outlook for Canada, the United States and British Columbia, as these were the regions within which JCL generally operates. As well, her report considers historical building permit activity and other statistics. Based on these comparisons, she finds that the Field Operations Division is comparable to the behaviour of British Columbia’s GDP in transportation, engineering, construction and BC non-residential permits. However, she notes there may be a one-year lag in the latter data. This is to be expected as construction generally commences a year after the issuance of a building permit.

[313]     McFarlane valued the Field Operations Division as a going concern (absent equipment which she valued separately) using a capitalized earnings method pursuant to an income approach to valuation. The capitalized earnings method assumes that a prospective purchaser would acquire the Field Operations Division as a going concern, based on expectations of future earnings and cash flow. This method takes into account prevailing risk-free rates of return, rates of return on alternative investments, and prospective growth in discretionary earnings or cash flow.

[314]     McFarlane reviewed JCL’s historical operations since 2004 to determine maintainable EBIT. McFarlane said she put greater emphasis on more recent years to account for higher than normal margins in 2005/2006. McFarlane then concluded that the EBIT/revenue ratio for the 2009 stub period (to August 31) was inconsistent with historical rates. Because of this, she applied a scatter-plot of EBIT/revenue for the years-ended December 31, 2008 and found a linear relationship which she then applied to 2009. On a going-forward basis, McFarlane determined that the Field Operations Division could reasonably maintain an EBIT margin percentage of 11.4% of revenues on maintainable revenues of $29.97 million to $36.63 million.

[315]     To determine discretionary after-tax earnings, McFarlane used the combined Federal/Provincial notional corporate income tax rate that a notional purchaser would be subject to, using a weighted average of future notional corporate tax rates. This, she said, represents the best estimate of the future earnings of operations. As these earnings are prior to interest on debt, they represent a return to both equity and debt holders. Because of this, McFarlane then discounted discretionary after-tax earnings using WACC which according to McFarlane: “represents a rate of return determined as the weighted average of: (i) the after-tax cost of debt; and (ii) the levered cost of common equity”.

[316]     To ascertain the appropriate cost of equity, McFarlane used the build-up approach whereby the return of equity is calculated as the sum of the risk-free rate, the equity risk premium, the size premium and company-specific risks. McFarlane used a long-term nominal risk-free rate of 3.9% as at the Valuation Date.[18]

[317]     McFarlane used 5.5% for the equity risk premium which she explained represents the incremental return investors require as compensation for the added risk associated with equity instruments as compared to risk-free securities. She used a consensus estimate of long-run equity risk in Canada to derive this percentage.

[318]     McFarlane set the size premium (the incremental return investors require as compensation for taking on the added risk associated with a smaller company) at 9%. She then added company specific risk[19] of 9.86% to arrive at an estimated total cost of equity of 28.26%.

[319]     The McFarlane report assumes a 20% and 80% equity ratio based on an analysis of 2008 and 2009 Risk Management Association financial benchmark ratios for companies in highway, street and bridge construction as well as a review of the Field Operations Division debt capacity based on notional working capital which can be leveraged for debt security.

[320]     McFarlane arrived at a WACC of 22.5-23.5% and then deducted 1% estimated annual growth. This provided capitalization multiples in the range of 4.4 to 4.7. Applying these rates to the projected discretionary after-tax earnings of the Field Operations Division results in an enterprise value of approximately $11.8-13.5 million.

[321]     The intangible value of the Fields Operation Division was assessed by calculating the notional working capital required by the Field Division and subtracting this figure from the enterprise value. This method results in McFarlane’s estimate of an intangible value of $8.64-$10.34 million, or 3.2-3.4 times EBIT.

[322]     Like McCandlish, McFarlane valued the Field Operations Division based on a market approach as a secondary check to determine the appropriateness of her valuation using the income approach. Ultimately, McFarlane did not rely on this approach as she did not locate sufficiently comparable companies.

[323]     McFarlane noted that she specifically excluded values for working capital, properties, and equipment estimated to be used in the quarry operations to avoid double-counting.

[324]     In the BDO Valuation Report, McFarlane used the insured values for equipment which she believed equated to depreciated replacement values, based on communications (through counsel) between McFarlane and JCL’s management. According to McFarlane, management indicated that this would be the best estimate of the value of equipment. After adjusting for tax considerations, McFarlane’s estimate of the fair market value of the equipment was $3.8 million. After issuing the BDO Valuation Report, McFarlane received additional information from JCL with respect to equipment value. She then calculated that the estimated net market value of the property, plant and equipment relating to Field Operations Division (taking into account an increase in the tax shield foregone) increased by $340,000 (to $4.14 million) based on this new revised information.

[325]     McFarlane calculated the quarries’ respective income tax liabilities and then deducted interest-bearing debt to determine the FMV of the net operating assets of JCL as at the Valuation Date. McFarlane then added $6.86 million for net redundant assets. McFarlane determined that the settlement money owing to Gibson and Home could be paid without compromising necessary working capital and therefore this money should be included in her valuation as redundant. In calculating the amount of net redundant assets, McFarlane reduced the settlement amount by the amount owing to related companies on the assumption that this would be paid from redundant cash.

[326]     McFarlane then calculated the tangible asset backing to determine the extent of risk inherent in her calculation. McFarlane defines tangible asset backing as:

... the aggregate fair market value of all tangible and identifiable intangible assets where the value of both, less all liabilities, has been determined on a going-concern assumption. The difference between the going concern value of a business’ operations and its tangible asset backing equals intangible value, including goodwill.

[327]     McFarlane found a tangible asset backing value of $95.6 million. She concludes:

This level of tangible asset backing supports the en bloc valuation of the shares of Jack Cewe Ltd. in the range of $104.9 million to $106.6 million.[20]

[328]     McFarlane valued CHL, Ridge, Heather, Shoshone Construction and Jack Cewe Inc. on an adjusted net book value basis, which is an asset approach to valuation. This approach is applicable when the underlying asset values constitute the prime determinant of corporate worth. McFarlane explains that this approach focuses on the individual asset and liability values from the company’s balance sheet, which are adjusted to fair market value. The approach also considers corporate income taxes and disposition costs that would be payable if the underlying assets are sold.

[329]     In summary, McFarlane’s report concludes that the values of the Trust Assets are:

 

JCL

$106,050,000[21]

Ridge

$140,000

Heather

$50,000

Shoshone

$7,000

Jack Cewe Inc.

Nil

CHL

    $2,500,000

TOTAL

$108,147,000

 

[330]     The value of 1701 Lougheed ($6,716,600) must be added to these values. In conclusion, McFarlane opines that the value of the Trust Assets ranges between $114.6 and $116.3 million[22].

c.       McEwen Report

[331]     McEwen was hired by Ms. Mide-Wilson to value all of the Trust Assets. Ms. Mide-Wilson did not hire anyone other than McEwen to value the quarries.

[332]     McEwen is a partner in and leads the Valuation and Business Modelling Division of Ernst & Young, LLP. He holds the designations of Chartered Accountant, Certified Fraud Examiner, Canadian Institute of Chartered Accountants, Investigative and Forensic Accountant, and Chartered Business Valuator. He has 20 years experience in public accounting and management consulting, has been an expert and fact witness in civil, criminal, regulatory and income taxation matters in British Columbia and Ontario, has experience preparing expert reports on business valuation matters, and has investigative training and experience regarding claims dealing with fabricated or altered business records, among other things.

[333]     McEwen has valued approximately 15 companies in the mining business, and has been qualified as an expert with respect to one of them. He does not, however, have experience valuing quarries as standalone entities. HTLN did not specifically contest McEwen’s ability to testify as an expert. They do, however, urge me to place little or no weight on his opinion because of his lack of experience in valuing quarries as standalone entities. By contrast, Ms. Mide-Wilson submits that McEwen’s experience in valuing mining businesses is far more relevant to the task at hand than McCandlish’s experience in valuing mining projects. I will say more about this later in these reasons.

[334]     Like McFarlane, McEwen prepared his report in accordance with the Practice Standards of the Canadian Institute of Chartered Business Valuators. In preparing his report, McEwen consulted counsel for Ms. Mide-Wilson, Ms. Mide-Wilson herself, Ms. Kwiatkoski (the controller for JCL) and merger and acquisition practitioners. As well, he visited the gravel pit operations at Pipeline and Jervis and the administrative offices of the Field Operations Division.

[335]     McEwen set out similar background information and assumptions as are set out in the reports of McFarlane and McCandlish. I will not repeat them here. McEwen’s definition of FMV is the same as that employed by McFarlane, except McEwen did not note the requirement of taking into account the synergies McFarlane was asked to consider in preparing her valuation.

[336]     McEwen explained that, in the aggregates industry, transportation costs are typically the major factor in determining competitive cost to the consumer. Competition from inland suppliers limits the market area for coastal operations. McEwen also explained that aggregate supply companies are often integrated with the aggregate business. He noted that British Columbia companies exporting to California, in particular, were hard hit by the economic downturn, but that federal and state stimulus packages were expected to increase demand beginning in 2010, with the expectation that demand for construction aggregates would return to 2006 levels by 2015.

[337]     McEwen noted that BC’s construction industry has seen phenomenal growth in recent years due to a booming housing market, a growing population, generally robust economic conditions, and preparations for the 2010 Olympics. However, McEwen opined that the market was heading for a “soft landing” in 2009 and 2010 despite a boost from federal and provincial government stimulus plans. Additionally, the market was expected to further weaken in 2011 and 2012.

[338]     In his economic overview, McEwen noted that the deepest recession since 1982 was underway in BC at the Valuation Date; particularly as Canadian firms were severely impacted by the fallout in the US.

[339]     Although the economic outlooks provided by McCandlish and McEwen in their reports differ to a certain extent, the difference is not significant. Further, I will not make any conclusions as to what the correct outlook is (or was retrospectively), as this type of “crystal ball gazing” does not provide a useful foundation for the valuation of the Trust Assets in this case.

[340]     In his report McEwen summarized the main approaches to valuation (cost, market and income approaches) and the components of value (tangible net operating assets, intangible assets and redundancy). He confirmed that the combination of tangible net operating assets and intangible assets represent a business’ “enterprise value”.

[341]     Given that Jervis and Pipeline involve the extraction of a finite mineral resource, McEwen chose to value these assets using an income (DCF) approach, as did McCandlish. In respect of the Field Operations Division, McEwen used the market approach, through a multiple earnings method (as compared to McFarlane’s capitalised earnings method) as, according to McEwen, “the Field Operations enterprise is a service business”.

[342]     McEwen chose to value the three components of JCL (Jervis, Pipeline and the Field Operations Division) separately because as he explained, they each face different profitability and risks. For each of them, McEwen valued the three components he said comprise the enterprise value: (i) working capital; (ii) machinery and equipment; and (iii) land, structures, gravel pit and intangible assets such as licenses and permits (as applicable). McEwen then added the net value of other assets and liabilities of JCL to arrive at his valuation.

[343]     JCL’s accounting system produces divisional income statements for each of its four divisions (Pipeline, Jervis, Field Operations and Administration) which include transactions between the divisions and internal revenue and expense allocations from the Administrative Division to the operating divisions. In order to value each division at market rates, McEwen prepared income statements for each division by reversing non-operating revenue and expenses and adjusting divisional revenues and expenses to reflect sales at market prices. He also removed non-cash items, non-operational transactions and interest and other financing charges from the operating divisions’ results.

[344]     In valuing Pipeline, McEwen confirmed that Pipeline’s EBITDA ranged from a low of $3.4 million (in 2005) to a high of $5.5 million in 2008. In his report, McEwen notes:

If annualized in a straight line basis, EBITDA for 2009 was on course to be approximately $3.3 million ($2.2 million x 12/8) [January - August 2009]. Pipeline experienced general growth in average EBITDA per tonne sold, peaking in 2008 and declining in 2009. Volumes sold peaked in 2006 and gradually declined thereafter through 2008 and again in the eight months ended August 31, 2009 in which period volumes declined further.

[345]     Because of this EBITDA per tonne trend, the risks associated with the cash flows and the estimated remaining mineral reserves, McEwen employed the DCF method to calculate the enterprise value of Pipeline and to determine if any value existed over and above the value of equipment, working capital and land.

[346]     McEwen estimated Pipeline’s working capital to be $3.5 million. He also estimated the value of machinery and equipment (under a “use-in-value” premise as compared to McFarlane’s use of the insurance value) to be approximately $7.0 million.

[347]     Next McEwen looked at the value of the “land, structures, pit, licenses and permits”. Specifically he notes:

As such, land, structures, pit, licenses and permits can be calculated as the residual, if any, between enterprise value and the value of working capital and machinery and equipment.

The enterprise value calculated in a DCF analysis reflects the present value cash equivalent at a given date of a future cash flow stream. A present value analysis involves forecasting the subject future cash flow stream over an appropriate period and then discounting it back to a present value at an appropriate discount rate.

[348]     In determining what he felt to be an appropriate discount rate (which he confirmed is a matter of professional judgment), McEwen considered the following:

a)    Polaris, which he deemed to be a comparable company and for which he observed stock market analysts were using discount rates in the range of 12-15%;

b)    Using a “build-up method”[23] he calculated Pipeline’s WACC to be 13%;

c)     Pipeline is a desirable pit operation, owing partly to its proximity to Greater Vancouver and its road access. This, McEwen says, suggests that Pipeline should have a lower discount rate than Polaris. He counter-balances this however by suggesting that Pipeline’s asphalt production would increase its riskiness owing to asphalt’s limited shelf life.

[349]     McEwen then concluded that a discount rate of 12% is appropriate for Pipeline. Applying this rate to Pipeline’s after tax cash flows, he calculated a present value of $31.5 million for Pipeline, including working capital, machinery and equipment, and the sum of land, structures, pit, licenses and permits used to generate cash flows. McEwen then subtracted the value of the use of lands owned by the Jack Cewe Alter Ego Trust and not JCL ($1.9 million) to arrive at an enterprise value of $29.6 million.

[350]     Based on his observations in respect of historical EBITDA for Jervis, McEwen concluded that it was also appropriate to use the DCF method to calculate the enterprise value of Jervis.

[351]     Working capital was assessed on the assumption that the book values of current operating assets and liabilities approximated their fair market value and was estimated to be $1.9 million. Machinery and equipment was valued at approximately $6.0 million (using a value-in-use premise) and approximately $3.6 million (under a value-in-exchange or orderly liquidation premise).

[352]     As with Pipeline, McEwen then calculated the enterprise value for Jervis to assess the value, if any, of structures, pit, licenses and permits. McEwen determined the EBITDA margin for Jervis to be $1.55/t based on 0.73 million tonnes per year sales volume. He then applied a 13% discount rate (higher than that of Pipeline) owing to Jervis’ remoteness and the additional costs required to transport Jervis’ product to market and its lower level of profitability.

[353]     Applying that 13% discount rate to the after tax cash flows of Jervis, McEwen calculated the enterprise value of Jervis to be $4.2 million, including working capital, machinery and equipment, and the sum of structures, pit, licenses and permits.

[354]     McEwen then says:

Based on the calculated enterprise value of $4.2 million, the present value of the cash flows from Jervis is less than the value of working capital and machinery and equipment combined, measured either on a value-in-use or on a value-in-exchange basis. Therefore, for Jervis, we conclude there is no residual value in excess of the value of working capital and machinery and equipment.

We consider that a prospective buyer would nevertheless consider purchasing Jervis tangible assets at some point between the value-in-use and value-in-exchange, and we estimate the fair market value of Jervis to be $6.7 million, as follows:

Jervis - Fair market value summary

Currency: C$000s

As at 31-Aug-2009

Working Capital

1,933

Machinery and equipment

4,789

Total

6,722

 

[355]     In valuing the Field Operations Division, McEwen considered the Division’s income statements for the years 2005-2008 and the stub period ending on the Valuation Date to calculate historical EBITDA. To do so, he deducted an amount for the market cost of rent for the administrative head office. After studying the results of his calculations, McEwen employed the multiple of EBITDA approach to calculate the enterprise value of Field Operations and to determine whether any value existed over and above the value of working capital and machinery and equipment. Again, he assumed that working capital was the book value of current operating assets and liabilities. Machinery and equipment was valued based on a value-in-use premise.

[356]     Per McEwen, as enterprise value is the sum of the equipment, working capital, land and intangible value, intangible value is calculated as the enterprise value less the value of working capital and machinery and equipment.

[357]     Applying the multiple of EBITDA method requires first assessing expected future maintainable EBITDA and then considering the appropriate multiple to apply. McEwen determined the expected future maintainable EBITDA based on the fact that the immediate future for Field Operations may not be as strong as it was in the period from 2006 to 2008, and that the 2009 results reflect the increasing level of price competition and resulting lower EBITDA that would be anticipated for the period following the valuation date. Consequently, he adopted a future maintainable EBITDA of $1.6-1.7 million.

[358]     Based on his review of market data, including a review of 15 public construction companies in Canada and the US; a review of transactional data; and conversations with Alberta and BC-based mergers and acquisitions practitioners, McEwen adopted EBITDA multipliers of 4.5 to 5.0 to apply to the range of maintainable EBITDA, resulting in an enterprise value of $7.8 million. This value includes the value of machinery equipment ($3.173 million) and working capital ($3.829 million) and therefore implies an intangible value of approximately $823,000.

[359]     As other non-operating assets and liabilities in JCL amount to $0.6 million (net), McEwen estimated the fair market value of JCL to be $44,707,000 (Pipeline: $29,574,000; Jervis: $6,722,000; Field Operations $ 7,825,000).

[360]     McEwen then valued the balance of the Trust Assets as at the Valuation Date as follows:[24]

CHL

$2,655,000[25]

Ridge

$136,000

Heather

$49,000

Shoshone

$7,000

 

[361]     These values, when added to McEwen’s value for JCL, result in a total value for the Trust Assets (not including 1701 Lougheed) of $47,554,000. If the agreed value for 1701 Lougheed is then added to this amount, McEwen values the Trust Assets at a total of $54,271,000.00.

[362]     In conclusion, McEwen determined that the net value of the Trust Assets, as of the Valuation Date is $36,000,000, calculated as follows:

Fair market value of non-real estate Trust Assets

$47,554,000

Agreed value of 1701 Lougheed

$6,717,000

Value of non JCL Pipeline properties

$1,915,000

Less tax liability on death of Jack Cewe

($12,181,000)

Less settlement to Home & Gibson

   $8,000,000)

Total

$36,000,000

 

2.       Law

[363]     Although not binding on me, decisions of the Tax Court of Canada are highly persuasive when considering expert reports on company valuation due to that court’s particular expertise in dealing with such matters. In Zeller Estate v. Canada, 2008 TCC 426, Campbell T.C.J. explained that business valuation is not an exact science. She explained that while the expert reports may provide assistance in this determination ultimately the court must decide what value is to be placed on a business. She explains at paragraphs 38-40:

[38]      The determination of FMV, although based on expert opinion, is a question of fact that the Court must ultimately decide. There is ample authority for the proposition that as the trier of fact I am not bound to accept the evidence of any expert witness or to accept one expert's report over another. It is entirely open to me to accept neither report in its entirety but to accept the best from both reports and to draw my own conclusions. I must conduct an analysis of the evidence of each of the experts and their respective conclusions to assist me in coming to a determination of the value…

[39]      ...[I]t is important to remember that valuation is, by its very nature, not an exact science and experts may often have an inclination, although unintentional, to become advocates of the party that engages them to complete the report. Chief Justice Bowman in Western Securities Limited v. The Queen, 97 DTC 977, at page 979 stated:

One further problem arises in valuation cases of this type. Typically both parties call expert witnesses. In many cases, these witnesses are not divided on any serious question of principle, although occasionally they may differ on the highest and best use of the property being appraised. The major difference usually lies in the choice of comparables used and the positive or negative adjustments to be made to particular comparables based on such factors as location, the timing of the sale, or other physical characteristics of the property. It frequently happens that the judge determines a value somewhere between the opposing positions of the experts, not because of any desire to reach a Solomonic compromise, but because of a recognition that the positions adopted by the experts represent the polarized extreme ends of value. There is a danger that experts, albeit in good faith, may become advocates and their positions may become adversarial. For this reason a disinterested arbiter must often conclude that it is unwise to adopt entirely the position of one or the other and that it is more likely that a fair -- I hesitate to use words such as "right" or "correct" in the necessarily imprecise area of valuation --value is likely to be somewhere between the two extremes. [Emphasis in Zeller.]

It is this point between the two expert valuations of $2.2 million and $6,389,000 that I must determine the highest price for 701's shares that willing and informed vendors and purchasers freely negotiating at arm's length in the open marketplace would have settled upon on October 20, 1998. Provided there is no compulsion to buy or sell, this reflects the generally accepted definition of FMV.

[40]      In discussing the two expert reports, the actual valuations assigned by report to the shares are secondary to the reasoning employed by each report in arriving at their respective valuations.

[364]     In Cyprus Anvil Mining Corp. v. Dickson (1986), 8 B.C.L.R. (2d) 145 (C.A.) [Cyprus Anvil], Lambert J.A. discusses the general process for fixing fair value under then s.199(14) of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, which read:

199(14) Upon an application to a court under subsection (9) or (10) the court may determine whether any other person is a dissenting offeree who should be joined as a party, and the court shall then fix a fair value for the shares of all dissenting offerees.

[365]     Although Cyprus Anvil deals with the requirement that a court must use its professional judgment in fixing fair market value as decreed by legislation (and there is no legislation that I must apply here), it is nonetheless instructive in this case. The process Lambert J.A. sets out is worth reproducing in full:

[49]      Perhaps the best starting point, though not the chronological beginning, is this passage from the reasons of Mr. Justice Bouck in Neonex Int'l Ltd. v. Kolasa et al. (1978), 84 D.L.R. (3d) 446 at p. 453, [1978] 2 W.W.R. 593 at p. 601, 3 B.L.R. 1:

2.         There are at least four ways of valuing shares in a company:

(a)        Market Value: this method uses quotes from the stock exchange.

(b)        Net Asset Value: this takes into account the current value of the company's assets and not just the book value.

(c)        Investment Value: this method relates to the earning capacity of the company.

(d)        A combination of the preceding three.

...

[50]      From there I would pass on to Re Wall & Redekop Corp. et al. (1974), 50 D.L.R. (3d) 733, [1975] 1 W.W.R. 621 (B.C.S.C.), (affirmed by an unreported decision of this court dated April 29, 1975, C.A. 712/74.) In that case, Mr. Justice Macfarlane, then sitting as a judge of the Supreme Court of British Columbia, reviewed a number of United States authorities on determining the value or fair value or fair market value of the shares of dissenting shareholders whose shares were being compulsorily acquired. … The point that they emphasize is that the problem of finding fair value of stock is a special problem in every particular instance. It defies being reduced to a set of rules for selecting a method of valuation, or to a formula or equation which will produce an answer with the illusion of mathematical certainty. Each case must be examined on its own facts, and each presents its own difficulties. Factors which may be critically important in one case may be meaningless in another. Calculations which may be accurate guides for one stock may be entirely flawed when applied to another stock.

[51]      The one true rule is to consider all the evidence that might be helpful, and to consider the particular factors in the particular case, and to exercise the best judgment that can be brought to bear on all the evidence and all the factors. I emphasize: it is a question of judgment. No apology need be offered for that. Parliament has decreed that fair value be determined by the courts and not by a formula that can be stated in the legislation.

[52]      Where Parliament has called for judgment, and where judgment is being exercised, the scope of the judgment should not be obscured. If the judgment is about which formula to adopt, then that should be made clear; if the judgment is about the assumptions to which the formula is to be applied, then that also should be made clear; and if the judgment is about the final result, with the formula being treated only as an aid, then that should be apparent.

[53]      Suppose, in a hypothetical case, method A produced a value of $1,000, method B a value of $800 and method C a value of $1,200. A simple average would produce $1,000. But maybe the judge who is determining the value thinks that method C is the most accurate method in the circumstances, but that all methods have some value, and that fair value is $1,100. It adds nothing to that reasoning process to say that method C should have a 60% weight, method A a 30% weight, and method B a 10% weight (giving the same answer of $1,100 ($720 plus $320 plus $80), but now buttressed by mathematics), unless the assignment of weights to the different methods of reaching value is a true aid to the judgment process through assessing the worth of the methods, and not merely a way of dressing up the judgment process to make it fancier than it is, or, even worse, working back from the final answer to make the premises come out right (as I have just done in this example). (For comments on the "Delaware Block" approach as exemplified in Swanton v. State Guaranty Corp. (1965), 215 A. 2d 242, see Weinberger v. UOP, Inc. (1983), 457 A. 2d 701.)

[54]      In summary, it is my opinion that no method of determining value which might provide guidance should be rejected. Each formula that might prove useful should be worked out, using evidence, mathematics, assessment, judgment or whatever is required. But when all that has been done, the judge is still left only with a mixture of raw material and processed material on which he must exercise his judgment to determine fair value.

3.       Analysis

[366]     According to Cyprus Anvil, I must consider all useful evidence and mathematical calculations and apply my professional judgment to determine the fair market value to be ascribed to the Trust Assets. I am not required to accept or reject any of the expert opinions in part or in whole. The opinions of the expert witnesses are intended to provide guidance to me, but due to the unexacting nature of valuation (it is an art and not a science), I should be cautious in accepting any one opinion as correct. It is more likely than not that the value will fall somewhere between the parties’ expert opinions.

[367]     As noted above, the Solicitors’ experts valued the Trust Assets considering the quarries as independent business (essentially as working mines, as opposed to businesses) and used two experts: McCandlish (for Pipeline and Jervis); and McFarlane (for the Field Operations Division). The Client, on the other hand, used one expert: McEwen, who valued JCL as one business enterprise.

[368]     Although there are a number of disagreements between the parties (and their experts) with respect to the value of JCL, HTLN submit that the main differences between McFarlane’s valuation (incorporating McCandlish’s report) and McEwen’s valuation are:

(a)      the discount rates used to determine the net present value of the two quarries; and

(b)      the value of the intangible assets of JCL’s field operations, including goodwill.

[369]     Ms. Mide-Wilson agrees in principle with HTLN’s assessment of what are the main areas of contention between the experts. However, she says HTLN’s submissions, in essence, frame the differences as:

(a)      the relative qualifications of McCandlish and McEwen in valuing Pipeline and Jervis;  and

(b)      McEwen’s alleged failure to properly apply the Cyprus Anvil standard of reasonableness in checking his calculations.

[370]     Ms. Mide-Wilson rather argues that the fundamental difference originates at a higher level. Specifically:

...it originates with a different characterization of what the assets are that are being valued. It is only when one correct[ly] understands what those assets are, that a meaningful assessment can be made as to the proper qualifications for valuing them, and the sort of reasonableness check the valuator ought to make in the process of valuing them.

[371]     In my view, there are three main areas of difference between the experts:

(a)        The qualifications of the experts.

Specifically, the valuation of Pipeline and Jervis by McCandlish as stand-alone quarries (mining properties) versus McEwen’s valuation of them (using an income DCF method) treating them as part of the business operations of JCL, not as separate mining operations;

(b)      The choice of discount rates for Pipeline and Jervis.

McCandlish uses a 5% (real) rate. McEwen uses a 12% (nominal) rate for Pipeline and a 13% (nominal) rate for Jervis;

(c)      The value placed by McFarlane and McEwen on intangible value of the Field Operations Division.

McFarlane places an intangible value of between $8.6 to $10.3 million on this Division; compared to McEwen who found it to be around $800,000.

[372]     Ms. Mide-Wilson says Pipeline and Jervis are not mining properties, but in fact are operating businesses forming part of JCL. They sell a finished, final product to customers that consists of rock that is drilled, blasted, crushed, screened and washed and, in the case of Pipeline, of sand that is mixed with oil to form from asphalt. The point of sale of such finished product is the scale in the case of Pipeline, and the dock in the case of Jervis.

[373]     Ms. Mide-Wilson refers to Atcon Construction Ltd. v. The Queen, 2001 FCA 379 [Atcon Construction Ltd.], which deals with the issue of whether an aggregate quarry that processed rock for sale to customers was properly characterized as a manufacturing and processing operation instead of as a mining operation involving the extraction of minerals. In that case, Hamlyn T.C.J. noted that what the business did was process rock with minerals intact, as originally found on the quarry rock face, into saleable products. His Lordship concluded that while quarry rock is composed of minerals, minerals are not extracted in any sense from the rock and the rock product is simply sized. On this basis, the court agreed with the taxpayer’s characterization of the quarry being a manufacturing or processing operation. It did so in the context of the characterization of a property for the purposes of the Income Tax Act.

[374]     Here, Pipeline and Jervis meet the definition of a mineral property as set out in CIMVAL 2003 and may be considered as such. CIMVAL defines a mineral property as: “any right, title or interest to property held or acquired in connection with the exploration, development, calculation or processing of minerals which may be located on or under the surface of such property, together with all fixed plant, equipment, and infrastructure owned or acquired for the exploration, development, extraction and processing of minerals in connection with such properties…”

[375]     Ms. Mide-Wilson says that unlike gold, aggregate has no market value separate from the individual contracts obtained for it by the quarry operator. McCandlish gave evidence that there is no spot or futures market for aggregate. In other words, it does not have value separate from the earth from which it comes. It only has value if you can crush it, wash it, and find someone to buy it -- it simply has no determinable in situ value.

[376]     Ms. Mide-Wilson says that Pipeline and Jervis are more analogous to Barrick Gold or Goldcorp as entire corporate enterprises than they are to any particular mines owned by said entities. She says that one would hire a geologist or geophysicist to value the companies’ mineral properties (which seems to admit that McEwen is not qualified in the circumstances, as I have noted above that according to CIMVAL these are indeed mineral properties); however she says one would have to consider the principles of business valuation, not mineral valuation to value the overall company.

[377]     HTLN submit that due to his extensive experience with mineral properties and mining operations, McCandlish was able to assess the actual risks these two quarries face, as opposed to McEwen who had no specific expertise in regards to quarry operations and who relied on stock market analyses[26] and others to “test” his discount rate.

[378]     More specifically, while HTLN agree that McEwen is qualified to value the Field Operations Division, they say he is not qualified to value the quarries for three main reasons: firstly, McEwen has no ability to value the in situ resource, that is, the aggregate in the ground; secondly, he does not know enough about mining and mineral properties in general to apply, as he ought to per Cyprus Anvil (at para. 54) professional judgment to his mathematical formulas to ensure that his valuation is reasonable; and thirdly, he erred by failing to apply CIMVAL as the appropriate standard for valuing mineral properties.

[379]     Further, HTLN criticize McEwen for having consulted with others whose credentials were not available to the court for assistance in valuing Pipeline and Jervis rather than engaging a “qualified valuator” -- as the Solicitors did -- to value the quarries.

[380]     In response, Ms. Mide-Wilson notes that McCandlish himself referred in cross-examination to understandings that he derived of discount rate practice from unnamed investment bankers, fund managers and finance people within mining companies. Thus, Ms. Mide-Wilson submits, it is not unprofessional to consult with others to test one’s understanding and approach. Further, she notes, McEwen is a highly qualified business valuator, with demonstrated experience valuing mining businesses, which is what Pipeline and Jervis are.

[381]     HTLN assert that McEwen’s report is invalid because it does not follow the CIMVAL standards. Ms. Mide-Wilson, on the other hand, notes that the CIMVAL 2003 standards used by McCandlish are not mandatory and that there are other appropriate methods to value the quarries, including the method used by McEwen.

[382]     I agree with Ms. Mide-Wilson. CIMVAL is simply one of several methods of valuation. CIMVAL itself lists a number of other methods and notes in its preamble that “the Canadian Institute of Chartered Business Valuators has standards for the valuation of businesses and corporations which its members must follow”. McEwen is a member of the Canadian Institute of Chartered Business Valuators and, as such, is subject to the standards set by that institution. There was no requirement for McEwen to use CIMVAL as his valuation method.

[383]     I find that both McEwen and McCandlish are qualified to value Pipeline and Jervis and to provide expert evidence as to their opinions on the value of the quarries.

[384]     In submissions, both parties’ counsel suggest that there is a duty on experts to apply a standard of reasonableness to their own findings when assisting the court in the area of their expertise, citing Cyprus Anvil as an authority for this principle. I do not read this case to impose this duty on experts; rather it is the trier of fact who must use their judgment to find the appropriate value. Lambert J.A concludes at para. 54:

[I]t is my opinion that no method of determining value which might provide guidance should be rejected. Each formula that might prove useful should be worked out, using evidence, mathematics, assessment, judgment or whatever is required. But when all that has been done, the judge is still left only with a mixture of raw material and processed material on which he must exercise his judgment to determine fair value. [Emphasis added]

[385]     Thus, the expert’s evidence must meet the standard of “providing some guidance” to the court, and then it is the trier of fact who must apply their judgment to determine value. The focus here is on allowing the trier of fact to employ a flexible approach to this often very complex and difficult process of valuation, in following the idea that valuation such as this is “more of an art than a science”. The focus is not on imposing duties on experts. Regardless, nothing of significance in this matter turns, in my view, on this misinterpretation (by both parties) of the principles laid out in Cyprus Anvil.

a.       Discount Rates

[386]     The real difference between McCandlish’s and McEwen’s reports lies in their choice of the appropriate discount rate to apply to the cash flows to arrive at their valuations.

[387]     The discount rate measures risk and the time value of money. McEwen agreed that in this case, where one is dealing with assets which produce income year after year, the focus for the discount rate is on the risk. The riskier the operation the higher the discount rate. The higher the discount rate, the lower the value ascribed to future cash flows. Accordingly, a higher discount rate means a lower value, and vice versa.

[388]     McCandlish regarded 5% as an appropriate discount rate for the quarries, compared with McEwen’s 12% for Pipeline and 13% for Jervis. To arrive at his 5% rate, McCandlish summed his opinion of the risk free rate of return, market risk and location risk. McEwen gave evidence that he was familiar with this approach to valuing mineral properties and confirmed that it is an accepted approach; but said that is was not the approach he wished to employ in arriving at his discount rates.

[389]     In his report, McCandlish states:

The author considers the two subject properties to be mature operations with experience[d] management and operators capable of recognizing adverse conditions and correcting them. They are advised by competent professionals for their mine plans and slope stability management issues.

The author considers the risks of catastrophic loss to be very low, however, risks to the project include those of market risk, revenue risk and operating cost risk. In order to account for these risks, the author believes that an increase in the discount rate used in the NPV analysis from the basic risk free rate of return of 2.14% to 5% is appropriate.

[390]     Ms. Mide-Wilson criticizes McCandlish’s approach on a number of footings.

[391]     Firstly, Ms. Mide-Wilson says that both McFarlane and McEwen applied the general principles of business valuation to build up a discount rate. In addition to the risk-free rate, each has added a public market equity risk premium (the return generally available in the market for liquid equity investments), an incremental equity risk premium for reduced liquidity from a private equity that does not trade on open markets, industry specific risks and opportunities, a size premium, and then company specific and market risk factors. This then results in what I have referred to in these reasons as the WACC.

[392]     Ms. Mide-Wilson then criticizes McCandlish for not using this approach. She says McCandlish’s approach to WACC was to view capital requirements from the perspective of JCL, rather than from the perspective of a purchaser of the assets. Because JCL does not foresee significant capital investment, McCandlish did not consider WACC. Ms. Mide-Wilson says that there is no support for McCandlish’s approach. She noted in her testimony that, while JCL does not have any planned significant capital investment, it frequently experiences significant, unplanned capital investments.

[393]     Ms. Mide-Wilson also says that, without any authority, McCandlish accepted that one ought not to look to a public market equity risk premium. This, in spite of McCandlish’s statement that one would look at it with less weight in a private company. Ms. Mide-Wilson says that the only rationale McCandlish was able to offer for not requiring a public market equity risk premium was that a purchaser of these assets may have strategic business reasons for purchasing them. But then, she says, he admitted one should not take strategic purchasers into account when performing a valuation. Further, McCandlish admitted that one does not know, in the absence of offers, whether there will in fact be any strategic bidders. On cross-examination he acknowledged that a purchaser’s WACC is always a relative consideration because such purchaser is putting his capital at risk in purchasing the assets.

[394]     Ms. Mide-Wilson says McCandlish acknowledged in cross-examination that both an incremental equity risk premium and a size premium should be added but that he did not add them. She also says that McCandlish’s application of a 2.86% risk premium for company specific risk disregards the following:

(a)      the pending retirement of George Turi, the general manager, who was at the top of the food chain for operations;

(b)      the lack of long-term contracts;

(c)      the large number of competitors (which he did not investigate), including in the immediate geographic vicinity of each quarry;

(d)      the fact the product generally sells on price and is difficult to differentiate from competitors’;

(e)      the possibility that other competitors would vertically integrate to achieve the same “synergy” of aggregate mining and road construction, potentially reducing the customer base;

(f)       that revenue from the quarries is cyclical with the construction industry;

(g)      Jervis’ dependence for its power supply on diesel generators, and thus its particularly vulnerability to fluctuations in energy cost;

(h)      that Jervis would need new facilities to access markets beyond coastal BC;

(i)       the possibility of an increasing regulatory burden, especially with respect to health and safety;

(j)       that Coquitlam may increase the levy on soil removal at Pipeline;

(k)      the fact that the workforce is unionized could lead to decreased flexibility and perhaps job action; and

(l)       that the rate of recovery on the reserve might be less than projected.

[395]     Ms. Mide-Wilson also notes that McCandlish ultimately acknowledged there is precedent in this market for a crash, such as that experienced in BC in the early 1980s and presently in California but that he did not account for that risk in his valuation.

[396]     Ms. Mide-Wilson submits that McCandlish gave evidence that the discount rates applied by stock analysts for Polaris (12% and 15%) were reasonable. By way of comparison, he also stated that if he had been valuing Jervis and Pipeline as a public company, he would have used a discount rate of 8% to 10%. He admitted that if one were to add McFarlane’s 5.5% market equity risk premium to his 5% discount rate, that would yield a rate of 10.5%, but he said that he would reduce that even if these assets were owned by a public company because he sees the matter through the lens of an institutional investor whom he believes would have strategic reasons to buy them, aside from return on capital. McCandlish did admit that if he were taking into account only a generic hypothetical third-party investor, he would have used a discount rate of 10%. I will say more about this later in these reasons.

[397]     Ms. Mide-Wilson submits that the 10% rate McCandlish conceded he would use corresponds almost exactly to the 12% discount rate McEwen used for Pipeline once inflation is factored in and is quite close to the 13% discount rate McEwen used for Jervis once inflation is factored in.

[398]     Ms. Mide-Wilson argues that the 5% discount rate McCandlish used in his report is simply not appropriate for the present exercise and that McCandlish did not apply the general principles of business valuation, even as mandated by CIMVAL 2003. Once he was confronted with those principles in cross-examination, McCandlish ultimately admitted he would have used a rate twice as high if he were valuing the quarries for a hypothetical third-party purchaser without strategic interests. This, Ms. Mide-Wilson notes, is exactly the exercise one must engage in for a business valuation of this kind. She submits that if McCandlish’s report is to be considered at all a discount rate of 10% should be applied yielding a before-tax value of $22.64 million for Jervis and $44 million for Pipeline. Taking tax into account, this amounts to values of $16.8 million for Jervis and $32.79 million for Pipeline.

[399]     By comparison, HTLN say it is McEwen who was in error in determining his discount rate. They submit that CIMVAL is the more appropriate valuation method and that it establishes a process for determining the discount rate relative to a mining property (the quarries). HTLN say McEwen did not (and could not) use the CIMVAL approach due to lack of expertise. Specifically, HTLN say McEwen’s method is flawed for a number of reasons. They summarize McEwen’s approach as follows:

(a)      He identified Polaris, a publicly traded company, that operates a sand and gravel (but not asphalt operation) on Vancouver Island as a comparable. He then looked at two stock market analyst reports and concluded (incorrectly) that they had applied discount rates “for Polaris’ pit operations” in a range of 12% to 15%;

(b)      He made two adjustments to take into account the differences between Polaris and Pipeline. First, he noted that Pipeline had a superior location, given that it is in the Lower Mainland. This was a factor he took into account to reduce the discount rate. Second, he noted the fact that Pipeline produces asphalt whereas Polaris did not. He said this was an off-setting factor -- i.e., a factor to increase Pipeline’s discount rate.

(c)      He spoke on the telephone with two gentlemen who, he says, know something about aggregate quarries. One was Mr. Haines in Ontario. The other was Mr. Ubelhack in California. He asked them what discount rates they use for quarries in Ontario and California; and

(d)      He did a WACC build up method.

[400]     HTLN then point out the flaws with McEwen’s approach. Specifically, they say that Polaris is a very different enterprise than either Pipeline or Jervis with a different risk profile and therefore it is not a reasonable comparable. They note the following specific differences as ones which McEwen failed to apply in setting his discount rate for the quarries:

(a)      Polaris has no history of profitable earnings compared to Pipeline which has a 40 year track record of profitable operations. McEwen agreed on cross-examination that this is a significant factor when considering a discount rate and supports an upward adjustment for Polaris;

(b)      Polaris has engaged in massive capital expenditures. Some of its largest, most valuable assets (a port facility and land in Long Beach California) are not quarries. McEwen agreed this changes the risk profile of Polaris;

(c)      Polaris is engaged in significant financing activity in the market place. McEwen agreed this impacts the risk profile of Polaris;

(d)      Polaris sells principally into the California marketplace. In addition to lingering concerns about the recession in California, this subjects Polaris to currency exchange risk. McEwen agreed that this is a factor which supports an upward adjustment in the discount rate for Polaris; and

(e)      Polaris reports in their annual report that they face some risk with respect to native land claims. McEwen agreed that this is a factor which supports an upward adjustment in the discount rate for Polaris.

[401]     HTLN also point out that McEwen considered Polaris to be unsuitable as a comparison for a market method of enterprise value expressed on a per tonne reserve basis because Polaris has made massive investments in California property and port facilities and it is unclear what portion of its value relates to the pit operation only. HTLN assert that McEwen should therefore have considered Polaris too different of a company to use as a comparable of risk.

[402]     HTLN further note a number of problems associated with McEwen’s use of the Canaccord and Desjardins reports to create a range of discount rates for Polaris. Specifically, HTLN say that:

(a)      The Canaccord report clearly is not limited to the “pit operations” but relates to Polaris as a whole;

(b)      It is unclear whether the Desjardins report, which utilizes a 15% discount rate, relates only to the pit operations;

(c)      McEwen had no idea how much due diligence Canaccord and Desjardins carried out in arriving at these discount rates and cannot test the reliability of those rates; and

(d)      He was not aware of a BMO report from the same period that had the discount rate for Polaris much lower -- moving from 8% to 10%.

[403]     HTLN assert that the use of the stock analyst reports is so far removed from an assessment of the value of Pipeline that it demonstrates why McEwen’s report is entitled to no weight on the question of valuing the quarries: McEwen is valuing the quarries based on a discount rate that was calculated for an entirely different business enterprise, in circumstances where he does not know what effort, thought and care went into the determination of the discount rate. HTLN also note that I was not given any information as to the expertise of these unnamed analysts. As a result, HTLN submit that material of this nature is of no value to me and indeed say it would be an error for me to place weight upon such material.

[404]     McEwen made two adjustments to the discount rate: one favourable to Pipeline (its location); and one unfavourable (its asphalt production). McEwen claimed to have made the unfavourable adjustment due to asphalt’s limited shelf life; however, Pipeline works on a batch basis and stores the asphalt in heated silos. McCandlish viewed the asphalt as a positive attribute. Indeed, McEwen gave evidence that diversification generally lowers a company’s risk profile. However, he did not admit that the asphalt production lowered Pipeline’s risk profile.

[405]     HTLN next addressed issues regarding McEwen’s contact with mergers and acquisitions practitioners in Ontario and California. Specifically, HTLN assert that:

(a)      McEwen admitted that Haines and Ubelhack knew nothing about JCL and the two quarries actually being valued;

(b)      Haines told him about a discount rate Haines had used on a quarry “in Ontario.” McEwen admitted he did not know if that quarry was in Marathon or in Aurora and agreed that location of the quarry could impact the discount rate. McEwen admitted that he did not know what the reserves were for this unknown Ontario quarry; nor did he have any idea of the quality of the reserves. He was not able to express a degree of confidence or non-confidence in the amount of reserves;

(c)      Ubelhack told him about a discount rate Ubelhack had used on a quarry “in California.” Likewise, McEwen admitted he did not know if that quarry was in a suburb of L.A. or on Mount Shasta, and again agreed that location could impact the discount rate. McEwen admitted that he did not know what the reserves were for this unknown California quarry; nor did he know the quality of the reserves. Again, he was not able to express a degree of confidence or non-confidence in the amount of reserves; and

(d)      If McEwen feels that he does not have the expertise to assess the discount rate on his own -- and by virtue of contacting Haines and Ubelhack it is apparent he did not -- then he should not be providing an opinion. He should have followed McFarlane’s example and obtained an opinion from someone with actual expertise in valuing mineral properties.

[406]     HTLN also take issue with McEwen’s use of the WACC build-up method. They argue that McEwen repeatedly had to apply professional judgment to his WACC build-up, which he does not have. They also criticize his use of the Ibbotson/ Morningstar Book 2009 as it measures conglomerations of companies that have nothing to do with running quarries in the Lower Mainland and on Jervis Inlet.

[407]     HTLN then say McEwen agreed that, at several stages of his build-up of his discount rate, he had to apply professional judgment. The most notable example is under the heading of “specific risk”, where he gave a 1% reduction in the discount rate due to “professional judgment considering the unique geographical location and other circumstances of Pipeline.” However, when asked why he had chosen 1% as opposed to, for example 3% or 4%, McEwen was not able to give any meaningful answer. He seemed to accept it was sufficiently subjective and that either those percentages could be equally valid.

[408]     McEwen applied a “size premium” of 3.74% based on Ibbotson’s “micro cap decile” of companies, which are small publicly traded companies. McEwen admitted that he did not know what companies were in that “micro cap decile”. He did not know how many were mining companies, versus gaming companies, bio-technology or tourism enterprises. The common characteristic among companies in the “micro cap decile”, including the two quarries was, he noted, that they all made less than $200 million per year.

[409]     HTLN say none of this assists me in determining the value of the Pipeline and Jervis. Micro-cap companies are notoriously unstable and risky and have risk profiles that are entirely different than Pipeline which has proven, fully permitted reserves and is located in the middle of a large urban area.

[410]     HTLN say McEwen should not have turned to Ibbotson because such collections of statistics about unrelated companies do not assist with respect to these quarries. However, HTLN say that even if I disagree with their submission on this point, I should take into account that McEwen relied upon Standard Industry Code (“SIC”) 3200 (“Stone, Clay, Glass and Concrete”) to come up with his 4% increase to the discount rate for industry premium. A slightly more accurate SIC, although HTNL argue none are suitable, would have been SIC 10 (“Mining”) which contains within it gold and silver ores at -2 %.

[411]     HTLN assert the proper approach to value a mine is as set out in McCandlish’s report, and as set out in Lawrence Devon Smith’s article, “Discounted Cash Flow Analysis: Methodology and Discount Rates”. On cross-examination McEwen confirmed that he knew of Mr. Smith and agreed that he is an authority on valuing mining properties, which is clearly evident from his résumé.

[412]     HTLN argue that Mr. Smith’s article makes it evident that McCandlish used the right approach in determining the proper discount rate to apply in valuing the quarries: risk free rate of return + project risk + country risk.

[413]     HTLN further submit that McCandlish used the appropriate valuation methodology by referring to material from Smith’s Edumine Course, “Economic Evaluation and Optimization of Mineral Projects”. This material demonstrates that McEwen’s discount rate is one that would be expected for a project in Chile at the feasibility study stage where ground has not yet been broken. McCandlish confirmed, in chief, that discount rates between 10-15% correspond to development stage properties.

[414]     There is one difference in the determination of discount rates between McEwen and McFarlane which in my view bears further scrutiny. As noted earlier, McCandlish on cross-examination confirmed that, in arriving at his discount rates he considered it likely that, if sold, the quarries would be purchased by a “strategic purchaser”.

[415]     On cross-examination, Mr. Gruber and McCandlish had the following exchange:

Q         So, Mr. McCandlish, where we left off we had just looked at Exhibits 15 and 16, the analysts’ reports [from Canaccord and Desjardins] from August of 2009 for Polaris, and you had told us that in your view, although you had some reservations about the 15 percent discount rate that Desjardins w[as] using, but you accepted that it might be appropriate for Polaris, and you accepted the 12% rate, discount that Canaccord was using was appropriate for Polaris. Do I have that right?

A          For the purposes of what their valuations were, they're appropriate, yes.

Q         And if I understood your evidence earlier, you said that if you had -- were valuing the assets that we're looking at as a public company, you would have taken into account long-term equity risk?

A          Yes.

Q         And you'll recall that Ms. McFarlane's consensus number for long-term equity risk was 5.5 per cent?

A          That’s correct.

Q         So, would I be correct in saying that if you were valuating Jervis or Pipeline as public companies, your discount rate would have been 10 or 11 percent?

A          I don't think it would have been as high as that because, again, I don't consider there's operational risk. It would have been higher on the order of between 8 and 10 per cent, which is typical of what I see many of my investment banking clients use for a standard.

Q         Well, all right. So, you have a discount rate of 5 per cent and there's some amount that you would add if you were looking at the long-term equity risk rate?

A          Yes.

Q         And Ms. McFarlane says the consensus view of what that adds, just -- the S&P TSX as a whole --

A          Yes.

Q         -- is 5 and a half per cent?

A          Yes.

Q         So, I'm just adding your 5 and her 5 and a half, and I get to 10 and a half?

A          Yes.

Q         How would you get to 8 then?

A          You're playing very carefully -- you are correct in that that is a consensus risk factor and consensus risk factors are very, very commonly used. The way we approach it in the mining industry really is a bit different, and that's because we try to look at I guess the operational and market risk in any given particular commodity. I realize that business valuators are taking that as part of the weighted average cost of capital to determine a return on whether an investor would invest in it. I would deduct some proportion in that I continue to believe that there would be very strategic reasons to acquire that asset. So, somewhere between 8 to 10 percent would be what I would advise any of my banking clients to look at this, and I think it's reasonable.

Q         I just want to understand that. So, I'm right in my starting premise that I take your 5 per cent and I add her 5 and a half per cent, but then you deduct for a strategic purchaser?

A          Yes.

Q         And, so, the strategic purchaser doesn't need the 5 and a half percent return that the market would give that strategic purchaser?

A          They may; they may not.

Q         They may or may not. And if they didn't, why would that be?

A          They may be looking at removing a competitor from the business. They may be looking at entry into a market where there's a barrier to entry, and you have a fully permitted -- two fully permitted sites here. Those are parts of the professional opinion, the professional judgment that go into determining what the discount rate is. I realize that certified business valuators have a much more standardized approach. I understand that; I understand how it's built up. However, that is not typical of how the mining industry builds up a discount rate.

Q         But I just want to understand this. When we're talking about this hypothetical of valuing Jervis as a public company or Pipeline as a public company, where does this strategic purchaser part enter into it?  Wouldn't the valuation for the purposes of a public listing be based on investors who have no strategic interest?

A          Why?  I don't --

Q         Well, if I buy a share of Jervis --

A          As a retail investor?

Q         As a retail investor, I have no strategic interest?

A          No.

Q         And, so, I'm going to require, one presumes, at least, the expectation that I'll get a return on that equity that's equivalent to what I get in the market as a whole?

A          I would agree that that is correct if you're a retail investor.

Q         So, if you're valuing these businesses as public companies, isn't that, at the very least, the valuation you'd have to approach?

A          I certainly, in my experience, have mostly valued companies for institutional investors, what they call buy side investors. And as you see in these reports, which are largely directed at retail investors, there is a different approach to modelling. They're looking at providing their clients, who are generally high net worth retail investors, with guidance as to whether a company is to be bought, held, or has an outperform. So, there's a different approach and different purpose to the valuation, and I think typically of mining operations, to a purchaser, to an institutional investor, you're not necessarily looking at building up the discount rate to the business as a whole. These business [sic]-- we've discussed this. I've said the 12 per cent was reasonable. That's for the integrated business. We didn't value the integrated business. We looked at the pits as standalone operations.

[416]     Shortly after the above exchange, McCandlish admitted that, if one removed these strategic considerations from his valuation, he would have used a discount rate “somewhere around 10 percent”.

[417]     Strategic (often called “special”) purchasers may be considered in determining fair market value in Canada.[27] A strategic purchaser’s interest in an entity may increase the fair market value of shares in that entity as a result of the premium such purchaser is willing to pay for perceived synergies to be achieved on acquisition. Accordingly, a valuator must attempt to estimate the premium that may reasonably be negotiated, as it is unlikely that a strategic purchase will “knowingly pay dollar-for-dollar for the perceived post-acquisition net economic value-added” (Wise, at 17).

[418]     However, there must be an evidentiary basis for the existence of a willing and able strategic purchaser before any premium can be added to fair market value: see, Dominion Metal & Refining Works Ltd. v. The Queen (1986), 86 DTC 6311 (Fed. Crt.) [Dominion Metal].

[419]     In Re Lynall, [1971] 3 All ER 914, (1971) 3 WLR 759 (HL), the court held that to add such a premium to the fair market value it must be established by cogent evidence at the valuation date that a special purchaser was in fact offering to purchase shares, financially able to buy the shares at the enhanced price, and that this fact was known to the public.

[420]     Absent clear evidence, it is often difficult to ascertain firstly, whether a strategic purchaser exists, and even if one does exist, secondly, what the actual premium is that would form part of the fair market value. If such evidence is present, and the premium can be estimated, a valuator may attempt to include the estimated premium to the fair-market value in the valuation. However, Wise cautions valuators about this approach at p. 17:

…unless the market has been tested or the valuator has conducted serious negotiations with possible purchasers, it would be difficult, if not impossible, to know whether the “highest price” (in the definition of fair market value) has been arrived at in a notional-market context.

[421]     The court in Dominion Metal examined whether a purchaser of property located adjacent to the purchaser’s current premises was, in fact, a special purchaser, and whether the valuation should reflect such a greater premium. The judge (at p. 6320) rejected the notion that the party was a special purchaser as there was no evidentiary basis at the date of valuation to:

…alert the notional buyer that… the subject lands might have a considerably enhanced value over other locations simply because they were located next door to it.

[422]     Thus absent evidence, such as a prior rejected bid,[28] which demonstrates that a party was willing to pay a premium above the fair market value at the valuation date, the court should not conclude there is a special purchaser and add a premium to the fair market value. The judge in Dominion Metal also rejected attempts to use evidence post-purchase to establish that a party was a special purchaser. In the end, at p. 6321, the court concluded that evidence as to the strategic nature of the asset must be established at the valuation date in order to include a premium in the fair market value:

In the cases cited by the plaintiff and to which lengthy reference was made, there were facts which gave credence to the presence of special purchaser not only at the date of acquisition but at the relevant valuation day date as well. In the case before me, I fail to find that kind of foundation upon which the presence of a special purchaser in the notional market at December 31, 1971 may be reasonably established. I can only ascribe the excellent price paid for the subject property in 1974 to a fortuitous combination of a self-compelled buyer on the one hand and an astute and obviously knowledgeable seller on the other.

[423]     Wise concludes at p. 18 that Dominion Metal seems to establish that the existence of a reasonable purchaser must be established “beyond a reasonable doubt”.

[424]     Wise also notes at p. 20-21 that even if there is a special purchaser, there may be situations where the notional value of the asset “might not necessarily be increased by a special-purchaser premium in arriving at a fair market value” in two situations:

1. If there is only one special-purchaser the price may only be nominally higher than what ordinary purchasers would pay; and

2. If there are two or more special purchasers the “market would become a special purchaser market (where there may be competitive bidding) and ordinary purchasers would therefore be excluded. These special purchasers would bid up the price for the business to an amount that would represent its value to them. In this regard, a special purchaser is not considered to be an exceptional purchaser, but rather the more typical kind of buyer present in the open market. If a number of notional purchasers are willing to pay a “premium” over the price offered by other purchasers, it would not be considered a “premium”, but simply fair market value.

[425]     It is interesting to note that in her report, McFarlane specifically made note of the fact that there have been no offers to purchase JCL as a whole or any of its significant assets in the last five years. Because of this, McFarlane did not consider strategic purchasers as part of her valuation of JCL. McEwen, in his report, in setting the “context” of the valuation, commented on “special purchasers” who may exist and who are “willing to pay higher prices than otherwise derived by an intrinsic valuation analysis because of the prospect of reduced or eliminated competition, reduced risk, synergistic revenues or costs savings, or other advantages arising from the acquisition”. However, in the body of his report McEwen made no further mention of these “special purchasers” and it is clear that he did not ascribe any particular “value” to special purchasers in valuing JCL.

[426]     Therefore, in keeping with the decision in Dominion Metal, McCandlish must be found to be in error in keeping his discount rate low because of the possibility of the existence of a strategic purchaser. In my view, McCandlish should have applied a real discount rate of at least 10-12% to his cash flows to determine the value of both Pipeline and Jervis. On cross-examination by Mr. Gruber, McCandlish admitted that, using a 10% discount rate, Pipeline would have a NPV of $44 million and Jervis of $22.64 million. And at 11% Pipeline would have a NPV of $40 million and Jervis of $21.26 million.

[427]     With respect to McEwen’s discount rate of 12% for Pipeline, I find that it is too high by at least 2% owing to his increasing his rate by 1% on account of the asphalt production. McEwen admitted that diversification generally decreases risk and that he misunderstood the batch process of making asphalt at Pipeline. I am satisfied that the discount rate should have been decreased by 1% on account of the asphalt production rather than increased.

[428]     Thus having used the expert evidence to “provide some guidance” to me, and applying my own judgment to determine the value of the quarries (per Cyprus Anvil), I find that a reasonable real discount rate for Pipeline is 10%.

[429]     In his report, McEwen first determined the discount rate for Pipeline (12%) then added 1% to arrive at 13% for Jervis, owing to its similarities to Pipeline but increased by 1% because of its remote location and lower profitability. I find this to be a sound methodology.

[430]     Based on my conclusions regarding both McCandlish’s and McEwen’s errors in their respective discount rates and my analysis of same, I find that the appropriate real discount rate for Jervis is 11%.

[431]     In determining the cash flow against which to apply the discount rate, McCandlish used year end dates for the accrual of the cash flows. McEwen agreed on cross-examination that this method was the most conservative approach to use. Both McCandlish and McEwen used Beresford’s numbers in respect of the reserves but for Pipeline, McEwen used 1.1 million tonnes of average annual sales to determine annual cash flow whereas McCandlish uses 1.25 million tonnes (the mid-range volume from the number supplied by JCL). I believe McCandlish’s numbers to be more correct and am inclined to place more reliance on his cash flows than those of McEwen.

[432]     Accordingly, I find that discount rates of 10% for Pipeline and 11% for Jervis should be applied to McCandlish’s cash flow figures using McCandlish’s estimation for the lifespan remaining for each quarry, that is, 75 years for Pipeline and 18 years for Jervis. That application results in a value of $44 million for Pipeline and $21.26 million for Jervis.

b.       Intangible Value

[433]     Both McFarlane and McEwen ascribed an “intangible value” portion to their valuation of the Field Operations Division. McFarlane ascribed a substantial amount (between $8.64 and $10.34 million) of intangible value to Field Operations (based on 2.5 times maintainable EBIT). In contrast, McEwen found intangible value of a much lower amount ($823,000), based on his multiple of EBITDA calculation and his conversations with Messrs. Ubelhack and Haines.

[434]     HTLN disagree with McEwen’s determination of intangible value. Specifically they point out that McEwen felt there was little or no intangible value on two bases:

(a)      When McEwen performed his calculations based on multiples of EBITDA, the result suggested no intangible value; and

(b)      When he spoke with Haines and Ubelhack he was advised that there is not much intangible value in construction companies.

[435]     In his report, McEwen noted that intangible value is made up of a number of items including: having a skilled workforce in place; good customer relationships; contractual rights existing at the Valuation Date; and goodwill. He agreed these are all present in the case of JCL. But, as HTLN point out, he made no attempt to value these intangibles except for the contractual rights. McEwen confirmed that he was aware there was some $12.8 million worth of contracts in hand as at the Valuation Date, but noted he believed the margins were tight. McEwen did no analysis to determine whether the margins would be different after the Valuation Date.

[436]     HTLN recognize that McEwen’s view of intangible value is driven by the fact that the Field Operations Division engages in a bidding process to acquire municipal contracts. To counterbalance this, HTLN say that McEwen acknowledged he is not an expert with respect to municipal contracts and that JCL is widely accepted as a qualified bidder with an established track record of successfully acquiring municipal work.

[437]     In discussing intangible value, McFarlane noted that JCL has been in business since 1947 and has a long-established good reputation. Unlike McEwen, McFarlane did take account of the $12.8 million in contracts at the Valuation Date. She noted the synergies the Field Operations Division enjoys by being able to purchase aggregate at below market rates. She opined this value is substantial and supports significant intangible value. She also noted that JCL has a skilled workforce in place. In her valuation of the Field Operations Division she concludes:

We believe that the above-noted reasons support BDO’s valuation of the intangible assets of the Field Operations Division as noted in the BDO Valuation Report. Although the construction industry tends to be cyclical, and work is largely gained through a bidding process, the Field Operations Division had demonstrated its ability to operate successfully in that environment for more than 60 years.

[438]     HTLN assert that McEwen did not step back to apply the Cyprus Anvil principle to his calculations, but instead simply accepted his calculations as correct. HTLN argue McEwen’s amount for intangible value is clearly wrong for a company of JCL’s reputation.

[439]     In examining intangible value, Ms. Mide-Wilson relies on the Supreme Court of Canada decision, R. (Ont.) v. Ron Engineering, [1981] 1 S.C.R. 111, for the proposition that businesses like the Field Operations Division depend largely on using its equipment and workforce to bid the lowest price in a transparent public process. The passages cited by counsel for Ms. Mide-Wilson describe the difference between tender and construction contracts. Based on this, Ms. Mide-Wilson says that it is McFarlane, not McEwen, who failed to apply the reasonableness check in Cyprus Anvil to her intangible value calculations.

[440]     As I have noted above, in my view, while it is certainly useful for an expert to apply this principle to his calculations, it is not required. Rather, it is I who must apply this principle to my decision in relation to valuation.

[441]     Ms. Mide-Wilson says McFarlane’s investigation of JCL’s competitors was limited. She asserts that McFarlane did not review the public tenders that make up the majority of JCL’s road-building business to determine their margins and that she was unaware that such bids are part of a public tendering process. McFarlane was not aware of the law on tender contracts; nor was she aware how that process might be impacted if reputation or customer relationships were given any value in this particular business. 

[442]     On cross-examination, McFarlane admitted she did not know if her assumptions as to how such factors might be relevant to bid qualification were valid. She did not review public results showing, for example, that in the period leading up to the Valuation Date in 2009, JCL had not won any relevant bids in Burnaby, a municipality from which JCL had previously won many tenders. She agreed such an exercise would have been relevant to testing her assumptions about intangible value.

[443]     Although she attributed intangible value to JCL having a skilled workforce in place, McFarlane failed to review key aspects of JCL’s workforce, such as the identity and status of the key employees (for example, General Manager Turi’s pending retirement). She was also unaware that it is the job superintendent’s qualifications which are relevant for public bids.

[444]     Instead, McFarlane tested her hypothesis on intangible value by analyzing certain public companies in the construction sector to determine their implied intangible value. She deducted the book value of the tangible assets from the enterprise value, as determined by market price of shares (as adjusted) for tangible value, not the market value of such assets, which could be quite a bit higher given the impact of depreciation and amortization on booked amounts (the difference in the JCL case, by way of example, being around 20%). Calculating the percentage of total enterprise value in McFarlane’s analysis results in absurdly high figures of two thirds and more (and indeed up to 98%).

[445]     The approach taken by McEwen was to talk to active mergers and acquisition practitioners to see whether they would ascribe significant intangible value to a company in this kind of construction business. He was told that they do not. McFarlane acknowledged she did not seek advice from others in respect of this issue.

[446]     McEwen also recognized there can be intangible value associated with having a skilled workforce in place. However, he as well noted the risk that a company may bid on contracts to maintain that skilled workforce, as indeed Field Operations Division appeared to have done in 2008. He further noted that a skilled workforce in this case could likely be replicated for less than $800,000 in intangible value depending on recruitment costs.

[447]     With respect to customer relationships, Ms. Mide-Wilson submits that there is no evidence such relationships are of any value to the Field Operations Division. Her evidence was that a qualified bidder is essentially a company that is bonded. I note, however, she was not asked if any of JCL’s non-tender work depends on customer relationships.

[448]     McEwen recognized that there might be some intangible value arising from the $12 million in contracts on hand as of the Valuation Date, but he did not ascribe much intangible value to that aspect, particularly as they may have been unprofitable or very low margin contracts given the results in the Field Operations Division to the Valuation Date in 2009. Ms. Mide-Wilson says the $12 million in revenue in those contracts is already part of the maintainable EBITDA that McEwen calculated and also already part of the maintainable free after-tax cash calculated by McFarlane. To add the profit component associated with those contracts as intangible value would be to double-count. The only reason to consider they might add intangible value is that work on hand gives a purchaser some greater confidence that the calculated EBITDA or free-after tax cash flow will indeed be maintainable. But where the recent history is not profitable, such confidence is unlikely to be of much, if any, value to a purchaser.

[449]     Finally, Ms. Mide-Wilson argues that there is no evidence to suggest there is any “goodwill” associated with the Jack Cewe brand. There is nothing to suggest that anyone would prefer using JCL’s road paving services to those provided by BA Blacktop, Imperial Paving, Winvan or Columbia Bitulitic (some of JCL’s competitors). None of these entities offer products where “brand” may have some real value. All of them sell on price.

[450]     In my view the intangible value ascribed by McEwen is simply too low and that of McFarlane is simply too high in the circumstances. While it is true that, because of the tendering/bidding system of contracts in construction, there is less intangible value in these companies than say, companies in the fast food industry, JCL would not be able to bid on contracts if it did not have a skilled workforce in place. Furthermore, it makes sense that the Jack Cewe brand would have value with respect to its private contracts. Regardless, McFarlane’s value for intangibles is quite high when considering the tendering process and the fact that certain key employees had left the company or were about to retire at the time of the valuation. Accordingly, I think it is more reasonable to ascribe an intangible value somewhere between the two expert opinions, at $4.7-6.4 million.

c.       Additional Differences in the Valuations

[451]     Ms. Mide-Wilson notes that another (smaller) difference between the McFarlane and McEwen valuations is that McFarlane chose to assume the financial results for the period ending on the Valuation Date (9 months -- January through August). Ms. Mide-Wilson says that this assumption does not properly reflect the financial performance of the road building business during that period. She says McFarlane’s reasons for doing so are at best speculative and appear mostly to be based on a “statistical” analysis without any proper foundation in statistics. McFarlane did admit that by performing this adjustment she might be taking out the effects of a cyclical downturn in the construction industry that would be relevant to a prospective purchaser.

[452]     Ms. Mide-Wilson’s evidence was that the road building business was not as profitable in 2009 because management had been underbidding on price to increase volume and that this had hurt margins. It was not brought about, as McFarlane hypothesized, by some change in accounting practice regarding expenses. On this point, I prefer Ms. Mide-Wilson’s submissions. It seems McFarlane has to some extent over-estimated the “expected” performance of Field Operations Division during 2009 as she did not take the cyclical nature of the business into account.

[453]     Ms. Mide-Wilson suggests that the McFarlane valuation is a further $1.25 million too high because McFarlane added the value of certain marine vessels used in the Jervis operation to the value she arrived at for the Field Operations Division. Ms. Mide-Wilson asserts those vessels are necessary to earn the discounted cash flow upon which McCandlish valued Jervis, and are not therefore (as McFarlane assumed) redundant assets which must be valued separately. McFarlane agreed that in general, where assets are necessary to earn a discounted cash flow, their value ought to be subsumed in that discounted cash flow, not added on top of it. She also indicated that she had not analysed the basis upon which McCandlish left them out of his valuation of Jervis. Based on the evidence before me, I am of the opinion that these assets are not redundant and ought not to have been included by McFarlane as such. Therefore, all other things being equal, McFarlane’s valuation is too high by the value she ascribed to those vessels ($1.25 million).

[454]     Finally, HTLN argue that McEwen’s valuation is flawed by the fact that he met with Mr. Rennie and obtained information from him with respect to JCL. HTLN claim Mr. Rennie was on a “crusade” to lower the value of JCL in order to reduce the amount of tax payable by JCL following Jack Cewe’s death. HTLN also question why McEwen listed his meetings with Ms. Mide-Wilson and Ms. Kwaitowski in his report, but not the one he had with Mr. Rennie.

[455]     I do not agree with this submission. In his evidence, McEwen confirmed that his discussions with Mr. Rennie were related to inconsequential matters. Further, I did not find McEwen to be an “advocate” for Ms. Mide-Wilson’s position (as is suggested by this submission). I therefore would make no adjustment to McEwen’s value for having had these conversations.

[456]     McFarlane included the $8 million settlement funds paid to Home and Gibson as redundant in her valuation of JCL as a whole. In her Report, McFarlane notes (at paras. 190-92):

In determining the fair market value of an entity’s shares, consideration is also given as to whether there are any assets or liabilities that are surplus, or redundant, to the operations of the business. It is assumed that a prudent vendor would either extract net redundant assets from the business prior to a sale or require compensation from the purchaser for their fair market value. Accordingly, the net realizable value of the redundant assets is added to the value of the business to determine the fair market value of the subject shares.

Redundant assets of Jack Cewe Ltd. have been determined to be the amount in cash of $8.0 million (Schedule 2.12). Based on management, this amount related to a payment due to George Home and Alice Gibson under the settlement which closed August 31, 2009. As this balance relates to a non-operating item and the company has more than sufficient working capital to maintain operations without the balance of this receivable, the amount was determined to be redundant. The amounts payable by Jack Cewe Ltd. to related companies of $1.14 million (Schedule 2.12) are redundant liabilities, as in a notional transaction involving the sale of shares of Jack Cewe Ltd. these liabilities would be unlikely to remain post-closing.

We assumed that the balance due to related companies of $1.14 million could be repaid from redundant cash, leaving a balance for net redundant assets $6.86 million. This amount is then added to determine the fair market value of the operating assets of Jack Cewe Ltd. on Schedule 2.0. The resulting en block fair market value of the shares of Jack Cewe Ltd. as at the Valuation Date is estimated to be in the range $104.9 million to $106.6 million (Schedule 2.0).

[457]     I do not agree with McFarlane’s treatment of these funds. The financial statement of JCL for the period ended on the Valuation Date discloses a debt[29] of around $1.13 million compared with accounts receivable of approximately $1.8 million. Accordingly, I find McFarlane’s valuation is too high by this amount ($8 million) as well.

d.       KPMG Valuation

[458]     HTLN argue that the McCandlish/McFarlane valuation ought to be preferred to that of McEwen as it is much closer to the valuation the “client group” ascribed to the Trust Assets during the numerous meetings between them, both before the CFA was signed and afterwards (as noted in the pleadings). Ms. Mide-Wilson says that these values were “plucked from thin air” and ought not to persuade me in any way to favour one valuation over the other.

[459]     Ms. Mide-Wilson says a much more meaningful comparison is to the draft KPMG valuation report (the “KPMG Report”) commissioned by Home for the terminal tax return of the Jack Cewe Alter Ego Trust as of spring 2008. That report concluded that the value of the Trust Assets was in the $60 million to $63 million range. This compares quite closely to McEwen’s overall value of $56 million, but is quite divergent from HTLN’s overall valuation of $115 million, a difference largely driven by McCandlish’s choice of a 5% discount rate and McEwen’s lower intangible value (as compared to that ascribed by McFarlane). Specifically, it should be noted that, like McEwen, KPMG concluded that the value of Jervis was limited to its net working capital and capital assets used in the operations.

[460]     The KPMG Report provided a fair market valuation of the “Cewe Group of Assets” which includes:

(a)      Jack Cewe Inc.;

(b)      CHL;

(c)      Ridge Gravel;

(d)      Heather;

(e)      Shoshone;

(f)       1701 Lougheed Highway; and

(h)      JCL.

[461]     The KPMG Report valued the Cewe Group of Assets as follows:

 

Low

to

High

JCL

$28,000,000

to

$29,000,000

CHL

$3,300,000

to

$3,500,000

Ridge Gravel

$136,282

to

$136,282

Heather

$47,077

to

$47,077

Shoshone

$38,107

to

$38,107

Real Estate Holdings

Gravel Properties

1701 Lougheed

$15,100,100

 

$13,692,000

to

$17,000,000

 

$13,692,000

Cewe Group of Assets

$60,313,466

to

$63,413,466

Rounded

$60,000,000

to

$63,000,000

[462]     KPMG defined FMV in the same terms as McFarlane and McEwen but noted that “special purchasers” may be willing to pay a premium to purchase the Trust Assets which premium KPMG says is undeterminable absent knowledge of a specific potential purchase.

[463]     In its Report, KPMG used a capitalized cash flow methodology to estimate the FMV of Pipeline and Field Operations Divison but, as Jervis had not historically generated an adequate return on the capital employed, KPMG used the adjusted net asset approach to value Jervis.

[464]     It is interesting to note that KPMG’s valuation for CHL, Ridge and Heather are very similar to those found by McFarlane and McEwen, and its valuation of JCL is much closer to that of McEwen than that of McFarlane.

[465]     Applying the Cyprus Anvil principle of stepping back and considering the “reasonableness” of experts’ opinions, McEwen’s opinion appears to be more reasonable than McFarlane’s. However, when McFarlane’s opinion is adjusted to increase McCandlish’s discount rate and remove the redundant assets and cash, her valuation is also within the “reasonable range” expected per Cyprus Anvil.[30]

4.       Conclusion on Value of the Trust Assets

[466]     In my view, there are difficulties with both of the valuations before me for the reasons set out above; most specifically in respect of the valuations of JCL. In my view, the value of JCL lies somewhere in between the two valuations. I am not bound (as noted in Cyprus Anvil) to accept any of the expert valuations, either in whole or in part. In my view, the value of JCL is more likely closer to that ascribed to it in the KMPG Report than to the value found by either McFarlane or McEwen. If I increase McCandlish’s discount rate to 10% for Pipeline and 11% for Jervis, reduce intangible value to $5 million (the “median” sustainable value in my view), and deduct the value of the redundant assets ($8,000,000 for the Home and Gibson payment and $1.25 million for the three vessels), McFarlane’s valuation of JCL would fall to approximately $70.9 million.

[467]     In regards to McEwen’s valuation, while I cannot be as precise with my calculation (as he was not asked to confirm “new” valuations for Pipeline or Jervis based on any other discount rates), by simply increasing the intangible value to $5 million, McEwen’s valuation of JCL would increase to some $49.7 million, without accounting for any change to the discount rates.

[468]     Taking all of this into account, I find that the value of JCL is $65,000,000. To that amount must be added the values of CHL, Ridge, Heather, Shoshone and 1701 Lougheed.

[469]     Although McFarlane and McEwen arrived at slightly different numbers for the values of CHL, Ridge, Heather and Shoshone, there is such an insignificant difference that I do not intend to review, in-depth, either of their methodologies in arriving at their figures, and I intend simply to take the average of their two values for each of these additional assets. Accordingly, I find the value of the Trust Assets to be $74,489,000, calculated as follows:

JCL

$65,000,000

CHL

$2,577,500

Ridge

$138,000

Heather

$49,500

Shoshone (20% only)

$7,000

Jack Cewe Inc.

0

Total Shares

$67,772,000

1701 Lougheed (agreed value)

$6,717,000

Total Value of Trust Assets

$74,489,000

 

[470]     If no additional adjustments were required to the fees, applying this valuation to the CFA, the fee payable by the client to the Solicitors would be $12,273,865.28 calculated as follows:

Total value of the Settlement =                                    $75,849,432[31]

Less Deductions:

Home and Gibson Payment          $8,000,000

(Declared Taxes – rounded)
[not disputed]                             $12,180,626

Estimated additional taxes based
on revised valuation [32]
                  $1,000,000

                                                                        $21,180,626

 

$75,849,432 - $21,180,625 = $54,668,807 x 20% =      $10,933,761.00

+ HST                                                                $1,312,051.30

+ Disbursements & taxes on
           disbursements                                             $28,052.98

TOTAL:                                                            $12,273,865.28

What Fee Should the Client Pay to the Solicitors?

[471]     Although I have deemed the CFA to be fair and reasonable, and have determined the value of the Trust Assets against which the Solicitor’s fees ought to be calculated, that does not end my enquiry. I now must determine whether the ultimate fee is in fact reasonable, in accordance with the decision of Goepel J. in Sawchuk, at para. 56:

It is also to be remembered that when an agreement is not cancelled or modified under s. 68(6), it does not necessarily follow that the lawyer will in fact be paid pursuant to the terms of the contract. The lawyers account still remains subject to a review pursuant to s. 70 [of the Legal Profession Act] which review will determine whether the ultimate fee is in fact reasonable.

[472]     Section 70 of the Act is the section under which a registrar traditionally conducts a review of a lawyer’s bill to his client. That review includes consideration of the circumstances existing at the time the bill was rendered rather than the time that a contract for fees was entered into and, at such review, a registrar must consider “all of the circumstances”, including:

a)     the complexity, difficulty or novelty of the issues involved;

b)     the skill, specialized knowledge and responsibility required of the lawyer;

c)     the lawyer’s character and standing in the profession;

d)     the amount involved;

e)     the time reasonably spent;

f)       if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable;

g)     the importance of the matter to the client whose bill is being reviewed; and

h)     the result obtained.

1.       Complexity, Difficulty or Novelty of the Issues Involved

[473]     There is no doubt, as I have confirmed above that, at first blush, the matter was of some complexity and difficulty, and even had some novel aspects. That complexity, difficulty and novelty continued throughout the retainer. I should note, however, that in the end, the actual work the Solicitors did was not large in the sense that when the matter settled, HTLN had not yet undertaken any examinations for discovery; they had only just started the document collection; and they had interviewed very few witnesses. It is fair to say that, at the time it settled, the Action was still in its formative stages. That being said, the Solicitors had drafted complex and lengthy pleadings; they had embarked on a “campaign” of briefing a number of areas of the law relevant to the issues; and they had prepared for a number of applications – all things designed to put maximum pressure on Home and Gibson pursuant to the Client’s instructions.

2.       Skill, Specialized Knowledge and Responsibility Required

[474]     As I have noted earlier, at the time of this retainer, Mr. Crickmore was considered more intermediate than senior counsel as his date of call to the Bar is September 1, 1995, as compared to the other counsel involved the action: Rhys Davies, Q.C., whose date of call is November 10, 1983; Barry Kirkham, Q.C., whose call date is June 30, 1971; and Mary Hamilton who was called to the Bar of British Columbia on August 5, 1987. Mr. Tomyn and Mr. Hungerford might also be considered “senior counsel.” Although junior in respect of her call to the Bar of British Columbia, Ms. Teetaert had experience in a similar lawsuit while with Burnet Duckworth. Mr. Manolis had skills in research.

[475]     In his legal opinion, Mr. Roberts said that the “legal services to be rendered in this case were formidable”. He also said that HTLN “proved their mettle in having the strategic know-how and courage to name Davis LLP as a defendant.” He also noted that the Solicitors employed a “thoughtful and aggressive stance” in their conduct of the Action. Finally, Mr. Roberts opines (at paras. 89-92 of his opinion):

The Statement of Defence and Counterclaim drawn by HTLN was a masterpiece of pleading and revealed shrewd tactics. The pleading of an allegation of breach of fiduciary duty against the plaintiff Mr. Home gave a significant boost to the allegation of undue influence. The claim of negligence against Davis LLP, while novel because a duty of care is generally owed to the testator and not to beneficiaries, had a reasonable prospect of not being struck out on an interlocutory motion (and as it happened it survived such an application) and therefore would have the consequence of removing Davis LLP from the file, forcing the plaintiff to seek other counsel.

Then, when the plaintiffs went to the firm of Owen Bird, HTLN wasted little time in developing and putting into play the strategy of having the plaintiffs’ second counsel removed from the file.

In practical terms, the execution of these well-placed strategies had the result that while Kirsten Wilson understood in December 2008 that she was in for a long drawn out contest of uncertain outcome requiring an expenditure of up to a couple of million dollars in legal fees on an hourly rate basis, within a little more than six months she controlled her late grandfather’s companies and assets worth many millions of dollars. As Mr. Justice Hinkson stated at the trial level, this was “[a]n estate estimated to be worth in excess of $100 million.”

All of this was brought about through the agency of HTLN.

[476]     Mr. Hunter, on the other hand, in his opinion states:

While the skill or specialized knowledge required does not seem to be particularly high, it does appear to me that the Law Firm provided very good service to the client. The statement of defence and counterclaim appear to be well crafted and the mediation submission is quite persuasive.

[477]     In my view, the Solicitors did bring a degree of skill and specialized knowledge to the matter. The pleadings they crafted were narrative and quite different from what one might consider “normal” pleadings in a case of this type. As noted earlier, an estate case is not necessarily easy and the Client was facing particular difficulties here. She herself testified that, in her view, it was essential that the Solicitors put a lot of pressure on Home. In my view, naming Home as a fiduciary combined with naming Davis LLP as a defendant in the Action, thus requiring Home and Gibson to change solicitors, did place a degree of pressure on Home and Gibson. That, coupled with the subsequent application to remove Owen Bird as their solicitors, did go some way to ensure that pressure was kept on Home and Gibson and, perhaps had a hand in bringing them to settle.

[478]     Mr. Macintosh argued during his closing submissions for the Client that I should not forget that Home and Gibson had the Nathanson, Schachter firm “on deck” to take over from Owen Bird. While I agree that having experienced and well-regarded counsel ready to take over would, to some extent, negate the pressure on Home and Gibson, it is still expensive and challenging to retain and instruct new counsel. Instructing and educating new counsel would have been a considerable burden in a case such as this.

[479]     I should also note that the Client does not appear to have any complaints with the legal work done by the Solicitors. In fact at the hearing, I heard a number of voice mail messages Mr. Wilson left for various firm members confirming how pleased he and Ms. Mide-Wilson were with the work done. There are also a number of emails sent by Mr. Wilson praising the HTLN “team” for their legal work. Mr. Rennie confirmed his view that Mr. Crickmore was a talented litigator and that he had no difficulty recommending HTLN to the Client. I do not think the Client actually feels the legal work itself was in any way lacking.

[480]     In her submissions the Client intimated it was Mr. Rennie who was the “primary player” and that, in fact, it was he who precipitated the settlement; not HTLN. In his own testimony, Mr. Rennie also suggested that he was the person responsible for negotiating and completing the settlement, not HTLN.

[481]     In my view, Mr. Rennie was an integral part of the “team” and, to some extent, his relationship with Home brought the Action to a conclusion. However, Mr. Rennie alone could not have achieved the settlement without the work of HTLN who drafted the pleadings, briefed the applications, conceived of the mediation, and ultimately drafted the corporate documents to conclude the settlement.

3.       Amount Involved

[482]     As I have found earlier in these reasons, the value of the Trust Assets as at the Valuation Date is $74,489,000.00.

4.       Time Reasonably Spent

[483]     I did receive in evidence a “time record” prepared by HTLN containing notations of the time apparently spent by each of the lawyers who worked on the file. Mr. Crickmore testified that this “time record” was “recreated” after the Solicitors had been formally retained in late October 2009. He said that the record was an internal document HTLN intended to use to determine how to divide the fees among members of the HTLN firm.

[484]     The time record discloses that the time spent on this matter by various people at HTLN was approximately 2,500 hours. It was clear to me in hearing and reviewing the evidence in this proceeding that the Solicitors put a lot of time and effort into this matter. Mr. Tomyn in particular, would regularly see an article or find some case law relevant to the matters in issue in the Action and forward the article or case to Mr. Crickmore for his review and consideration. Mr. Crickmore, although he agreed he was working on other significant matters during the period of the retainer, spent a great deal of time on this matter. Even Ms. Mide-Wilson, in her testimony, spoke of the large amount of time she spent in conversation with Mr. Crickmore; basically sharing with him, in her words, “her entire life story”. The time taken up with that would have been considerable.

[485]     It is also important that I recognize that if I attribute an average hourly rate of $500 per hour (quite high in my view and representative of rates for those whom one might call “senior” counsel) to the 2,500 hours said to have been spent by HTLN the fees generated by an hourly rate retainer on this file would be $1,250,000, not including Mr. Smith’s time which was some 150 hours. Adding Mr. Smith’s time would add an additional $75,000[33] to that hourly fee amount resulting in a total fee of $1,325,000 on an hourly rate basis.

[486]     In his opinion on this factor, Mr. Hunter (after reviewing the time record) says:

Given the preliminary stage of the proceedings, these numbers [of hours recorded in the time record] seem high, but in light of the amount involved and the importance to the client, I cannot conclude they are unreasonably high.

[487]     Mr. Hunter also suggests that, by using hourly rates for lawyers involved ranging between $300 - $500 per hour, “an order of magnitude estimate of the opportunity cost to the firm relative to the usual market for providing comparable legal reviews” would lead to a fee of about $1.1 million. Mr. Hunter then recognizes that (as noted by the Court of Appeal in Inmet) a “fair fee” should not simply be a calculation based on bonus times hourly rates, unless the parties have agreed to that formula (which here they have not).

[488]     It is also important to note that, in general, I should take a “holistic” approach to matters such as this, rather than performing a mathematical calculation on the basis of the time spent (per Bauman, J.A. (as he then was), in Inmet at para. 111).

5.       Importance of the Matter to the Client

[489]     No doubt this matter was of the greatest of importance to the Client. The matter at issue was her grandfather’s estate. Her stated objective was to regain control of the Trust Assets. She was not interested in settling the case for a monetary amount. Her sole purpose in retaining the Solicitors was to “get the company back”. Mr. Wilson confirmed this in one of his voice mail messages. In his words:

Nothing is more important than my wife. This is something she absolutely wants so bad, I cannot tell you.

6.       Result Obtained

[490]     No doubt the result was excellent. I do not believe that there is any real dispute about that; although Mr. Hunter suggested that the result was simply “satisfactory”. There is no doubt, however, that HTLN achieved the sole purpose of the retainer for the Client.

7.       Other Factors

[491]     In addition to considering the “standard” Legal Profession Act factors, that Act directs me to consider “all of the circumstances”. The phrase “all of the circumstances” has been held to mean “all factors essential to justice and fair play”: see, Diligenti v. McAlpine, Roberts and Poulus (1978), 9 B.C.L.R. 153 (C.A.), at p. 156; and Yule. I am therefore not limited to the above factors in determining a fair fee.

[492]     Additional factors that have been considered relevant to a review of a lawyer’s bill under the Act are:

a)    The ability of the client to pay (see, Norton, Stewart & Scarlett v. Mercier Estate (1989), 40 B.C.L.R. (2d) 168 (C.A.)); and

b)    The nature of the client (see Montaine Black & Co. v. Osadchuk, [1985] B.C.J. No 1906 (C.A.) [Montaine Black]; and

c)     The risk that the solicitors undertook in agreeing to represent the client on the basis of a contingent fee arrangement (see Eberhardt, Caplan, LaCroix & Silverman v. Goode (1987), 11 B.C.L.R. (2d) 112 (C.A.)).

a.       Risk

[493]     I will begin with the issue of risk which I have addressed earlier in these reasons to some extent.

[494]     Clearly there was a risk of non-payment if this matter proceeded to trial and if the Client was not successful. Specifically, the Solicitors were risking all of their time and effort. At the time the retainer terminated (and before undertaking examinations for discovery, trial preparation, and in-depth witness interviews) the Solicitors had in excess of $1.25 million “worth” of time invested in the Action.

[495]     In an unusual case such as this, with such a large amount of money at stake, the temptation to deviate from sound principles in the face of what appears to be a “large fee for a little work” should be resisted. Contingent fee arrangements were introduced in this province for a reason: so that parties with limited means could have access to justice without having to risk all of their assets on legal fees. The expectations of such bargains need to be protected so that contingent fee arrangements are still beneficial to both parties entering into them, and so they remain as a viable option in our legal system.

[496]     When comparing the Solicitors’ claim to the calculated hourly wage equivalent of work actually done, the discrepancy is obvious. However, this cannot be the focus of this analysis. If the Action had not settled as and when it did and had it instead proceeded to trial, if Ms. Mide-Wilson been unsuccessful in the result, the Solicitors would have been found to have gambled and lost. The possibility of this exact scenario was one of the reasons the Client elected a contingent fee arrangement. It could be argued that, in this scenario, it would bring the legal system “into disrepute” for the Solicitors to try and go back and demand an hourly rate for their efforts after the fact.

[497]     The Client had sufficient assets to pay the Solicitors through a number of arrangements; a contingent fee arrangement was not the only way for them to obtain legal representation as is often the case with people of limited means. The CFA was a business decision based on risk and made by sophisticated parties. The Client cannot demand one form of retainer, and then retroactively change to another form of payment simply because she finds the fees to be simply too high and not (perhaps) what she anticipated they might be.

 

b.       Nature of the Client

[498]     As for the “nature of the client”, the issue in Montaine Black was whether it was appropriate for a judge, in deciding on an appropriate fee for a solicitor, to take into account his conclusion that the client in question was difficult. Taggart, J.A. held, at paras. 33-34:

I think the judge was quite entitled to take into account the fact that the appellant was a difficult client. The judge reached that conclusion not only on the basis of the evidence adduced before him, but on the basis of his opportunity to observe the appellant during the time that she was giving testimony.

The fact that a client provides difficulties for the solicitor having the conduct of her affairs is, in my view, relevant if for no other reason than that such difficulties make for considerably more work on the part of the solicitor. I think there is no merit in that third ground.

[499]     I am in no way suggesting that Ms. Mide-Wilson was difficult but there is no doubt she was single-minded in her instructions. She was adamant that her legacy had been stolen and she was prepared to give no quarter. That, in and of itself, added to the task faced by the Solicitors.

c.       Client’s Ability to Pay

[500]     To some extent, I have considered the Client’s ability to pay earlier in these reasons and will not repeat myself except to confirm that the Client had the ability to pay fees on an hourly basis but instead preferred a contingent fee arrangement.

[501]     The Client has suggested that if she is required to pay the Solicitors the amount requested, she will have to sell some of the Trust Assets, thus defeating the purpose of the retainer. I found earlier that that, in and of itself, was not sufficient reason to set aside the CFA. As previously noted, applying the CFA to the value of the Trust Assets with tax and settlement adjustments, the fee payable by the Client under the CFA would be $12,273,865.28. While no doubt it would be difficult for the Client to pay that amount to the Solicitors, in my view, it would not be impossible. She owns a number of liquid assets, including Jack Cewe’s Port Moody residence.

[502]     I will now consider whether there are any other factors that I ought to consider as “essential to justice and fair play”.

d.       Solicitors’ Alleged Misconduct (the “Secret Deal” with Mr. Rennie)

[503]     In her submissions, the Client contends that any “fair fee” should be reduced because of the Solicitors’ conduct in respect of Mr. Rennie. Specifically Ms. Mide-Wilson says that the Solicitors “misconducted” themselves in three ways. She says:

First, the solicitors sought to share their fee with Mr. Rennie, contrary to their professional conduct obligations. The Law Society’s Professional Conduct Handbook deals with the issue of fees in Chapter 9. Rule 6, under “Sharing fees”, states: “... a lawyer must not split, share or divide a client’s fee with any person other than another lawyer.”   The CBA’s Code of Professional Conduct contains the following Commentary:

Sharing Fees with Non-Lawyers

8. Any arrangement whereby the lawyer directly or indirectly shares, splits or divides fees with ... non-lawyers who bring or refer business to the lawyer’s office is improper and constitutes professional misconduct. It is also improper for the lawyer to give any financial or other reward to such persons for referring business.

[Emphasis added; footnote omitted]

Mr. Rennie is not a lawyer, and HTLN’s offer to him to share in their fee is improper.

Second, HTLN knew that Mr. Rennie was Ms. Wilson’s advisor, upon whom she relied on an almost daily basis, and yet they never advised her that they had offered him a share in their fee. This information was vital to Ms. Wilson’s ability to make a reasoned business decision, as one of the aspects of Mr. Rennie’s advice on which she relied was whether or not she could trust HTLN’s assurances and thereby sign the Fee Agreement. HTLN had to ensure that Ms. Wilson was advised of the offer to Mr. Rennie to share in their fee, and their failure to meet their duty of candour in this regard is a breach of their duty to Ms. Wilson.

Third, the client respectfully submits that HTLN was not always candid with this court.

a)     HTLN did not admit to having offered Mr. Rennie a share of their fee, but rather sought to explain away their arrangement as a share in a “total professional fee”. HTLN denied the conversation with Mr. Rennie in late September and early October of 2008, and Mr. Crickmore tried to explain away the reference to contingency fee matters in his October 2, 2008 time entry. Mr. Crickmore and Mr. Tomyn alleged that they told Ms. Wilson on October 28, 2008 that they would pay Mr. Rennie’s fee, when that conversation never took place. Mr. Crickmore also mischaracterized the true nature of the conversation he had with Mr. Rennie at Caffè Artigiano.

b)     Mr. Crickmore was disingenuous when he testified that he thought Ms. Wilson’s objective was to “become the primary beneficiary of her grandfather‟s estate” but that he was not told she wanted to regain the company and keep it operating as a going concern. The unambiguous documentary evidence, along with Mr. Tomyn and Ms. Wilson’s unequivocal testimony, is overwhelming in proving that he was clearly told this was her objective. He probably denied such knowledge in order to try to avoid the point that the Fee Agreement as he interprets it would render that objective impossible.

c)     Mr. Crickmore and Mr. Tomyn testified that, in September of 2009, Mr. Rennie, on behalf of Ms. Wilson, told HTLN that they should recover their fee by suing Davis LLP and Mary Hamilton. Mr. Rennie said no such thing and nor did Ms. Wilson ask him to. This evidence appears designed to obfuscate the fact that it was HTLN who had assured Ms. Wilson that she would be able to sue Davis LLP and Ms. Hamilton for the $8 million settlement and HTLN’s fee when they later declined to act on her behalf in this regard, alleging that they would have to be witnesses.

The client respectfully submits that HTLN does not come to this court with clean hands and should not be entitled to claim a quantum meruit fee, but should instead by paid only for the time they worked on the file.

[504]     Mr. Rennie, in his testimony, said that following his September 30 meeting with HTLN, Mr. Tomyn spoke with him and offered him a 1/3 share of HTLN’s fee. Specifically his testimony was:

Q:        And in the first meeting, that’s you and Mr. Tomyn and probably Mr. Crickmore, do you have any recollection of any discussion regarding fee arrangements for the file?

A:         It was either at that meeting or immediately subsequent to the meeting with the Mides and Mr. Wilson that Harry suggested to me that the fee would be split a third, a third, a third, and I started to speak, and Harry said, and I know that’s improper under Law Society Rules, but there’s a way around that. You can send us a bill.

And I said, well, I also have great difficulty with undisclosed fee arrangements myself as a professional. And that was about the extent of the discussion.

[505]     The Solicitors’ evidence was clear. Once the parties agreed on a contingent fee arrangement, the Solicitors believed they were going to “take care of Rennie” as part of that arrangement. Both Mr. Crickmore and Mr. Tomyn testified that they told Ms. Mide-Wilson (and the other members of the “client group”) that they intended to pay Mr. Rennie’s fee out of their fee; out of the percentage to be paid to them.

[506]     Ms. Mide-Wilson strongly denies being told any such thing. Specifically, she said that she would never have wanted such an arrangement as Mr. Rennie was “our guy”, meaning their advisor and a person to whom she (and Ryan Wilson and Carsten Mide) intended to turn for assistance in respect of the Action and matters arising in connection with the Action, including her dealings with HTLN.

[507]     The discussion regarding HTLN being responsible for Mr. Rennie’s fees was alleged to have taken place at the October 28, 2008 meeting. Ms. Teetaert, who was at that meeting, appeared to have no recollection of any discussion about Mr. Rennie’s fees. Mr. Tomyn’s notes of the October 28 meeting make no mention of it. The CFA, which contains a “whole agreement” clause, makes no mention of the Solicitors’ intention to pay Mr. Rennie’s fees out of the fees to be paid to them by the Client under that CFA.

[508]     In her submissions the Client says that, on this issue, I ought to prefer Mr. Rennie’s testimony over that of the Solicitors’ as Mr. Rennie’s evidence was given “against his own interest”. By that she meant that when Mr. Tomyn suggested a fee split, Mr. Rennie should have disclosed that to Ms. Mide-Wilson (and to Mr. Wilson and Carsten Mide) but he did not.

[509]     On the other hand, the Solicitors submit I ought to prefer their evidence on these issues instead; particularly as the specifics of neither of these alleged conversations with Mr. Rennie about a fee split were put to Mr. Tomyn in cross-examination. On cross Mr. Tomyn was only asked whether he had made a note of the alleged discussion with the Client and with Mr. Rennie wherein the Solicitors said that they would take care of Mr. Rennie’s fees. He was not, as he should have been, asked to confirm (or deny) Mr. Rennie’s suggestion that he (Tomyn) suggested that the fees be split 1/3 (to Tomyn), 1/3 (to Crickmore) and 1/3 (to Rennie). Nor was Mr. Tomyn asked to confirm (or deny) that he told Mr. Rennie that, while fee splitting was against the rules of the Law Society, he (Tomyn) knew a way around those rules. And, finally, Mr. Tomyn was not asked to confirm (or deny) on cross-examination if Mr. Rennie advised him (as alleged) of his reluctance to enter into undisclosed fee-sharing arrangements.

[510]     Generally I found Mr. Rennie to be a credible witness, however, on this particular fact I simply cannot agree with his recollection. There is no doubt in my mind that had such a suggestion been made to him by Mr. Tomyn he should have (and would have) reported it to Ms. Mide-Wilson. This is particularly so since he said he would work with anyone she wished him to and, if he truly was uncomfortable about a fee split or fee sharing arrangement made so early in the parties’ discussions and long before HTLN were retained (as he said it was), he would not have wished the Client to continue with HTLN. Rather, he would have suggested that Ms. Mide-Wilson meet with the other lawyer he was recommending, Gary Wilson of Borden Ladner Gervais; or that she retain Mr. Hordo or stay with Mr. Van Ommen.

[511]     In Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), on the issue of credibility, the court said at p. 357:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable and that place and in those conditions. ...

[512]     I agree with the above statement and, in fact, it is binding upon me. Here, the preponderance of probabilities supports the Solicitors’ position, not the Client’s. On the evidence before me, I am satisfied that, during the October 28 meeting, HTLN suggested that Mr. Rennie’s fees would be paid to him by them from the amount payable if a contingent fee retainer was entered into. I also find that the parties did not make any specific arrangements as to how to this payment might actually be made, as, at the time the discussion took place (October 28), the parties were having a “general” discussion with respect to fees and how the fees were to be determined, including whether HTLN would be retained on a contingent basis or otherwise.

[513]     Mr. Rennie’s recollection with respect to timing on a number of the issues was clearly not correct. He recounted certain events that had happened on obviously different dates; for example, issues regarding the mediation and who attended on which day of the mediation. Certainly the issue of a contingency fee agreement did not, in my view, come into play until October 28 or thereabouts. It does not make sense then that in the very early stages, as recounted by Mr. Rennie, the Solicitors suggested they would split the fee three ways, particularly as, at that point in time, no one knew how the Solicitors were to be paid. It does not make any sense that the Solicitors would offer to share with Mr. Rennie one-third of their fee if they did not have any idea at that time whether, firstly they had even been retained, and secondly, if retained, on what basis they might be retained.

[514]     As noted earlier, all other things being equal, based on a settlement value of $75,849,432 (less deductions -- income taxes and the settlement amount), the fees payable by the Client to the Solicitors pursuant to the CFA would be $10,933,761 (not including HST or disbursements).

[515]     No doubt that amount is substantial. Mr. Hunter suggested that, in deciding the “fair fee” I should also be mindful of the fact that HTLN is seeking a substantial recovery (some 15 to 18 times the amount their fees would be had this file been billed on an hourly rate basis). Mr. Hunter says that both the provisions of the Act and the Law Society Rules relating to contingent fee arrangements and fee arrangements in general suggest that there is a “cap” on legal fees in the sense that legal fees must be “reasonable” in all of the circumstances, and that I should not award HTLN fees at such a level as to bring the legal profession into some disrepute.

[516]     Registrar Cameron recently considered this matter in McQuarrie Hunter v. Parpatt, 2011 BCSC 800. In that case, the learned Registrar reduced the fee to the law firm to “maintain the integrity of the profession and to arrive at a fee that is reasonable” (at para. 73). In that case, the learned Registrar felt that a 100% premium on the time spent by the law firm to the date of settlement was reasonable. In my view, that decision must be read in its particular context and circumstances. In general, in my view, it is imperative that parties be held to the bargain they made. Solicitors who enter into contingency fee arrangement should be able to do so with confidence; knowing that, if their bargain is fair and reasonable, it will, for the most part, be upheld. This applies equally to clients who, in entering into agreements with their counsel, must be able to move forward in their matter knowing exactly how the fees are to be calculated and thus make reasoned decisions regarding settlement of their matter knowing they cannot be charged any more than a set percentage of recovery.

[517]     In my view, taking into account all of the factors set out in the Act, including all those “essential to justice and fair play”, the amount of the fees reasonably necessary and proper to conduct the Action is $9,000,000. Disbursements have been agreed at $26,895.22. Taxes on such disbursements are $1,157.76. Taxes on the fees are $1,080,000. Accordingly, as I understand that no monies have been paid by the Client to the Solicitors since the conclusion of the retainer, the Solicitors are entitled to a certificate of fees in the amount of $10,108,052.98.

[518]     Pursuant to s. 73(3) of the Act, the Solicitors are also entitled to pre-judgment interest on the fees and disbursements from the date of the bill to the date of any certificate I might sign in this matter. The bill before me is dated March 25, 2011, however there was an earlier pro forma bill issued claiming 20% of the value of the Trust Assets, yet to be determined. In my view, all other things being equal, interest should accrue from the date of the bill I actually reviewed (the one dated March 25, 2011) to the date these reasons are issued.

[519]     As to costs, I have reduced the bill by more than one-sixth and, absent “special circumstances”, the Client is entitled to her costs in respect of this review (s. 72 of the Act). I am not aware of any special circumstances but I am prepared to hear from the parties in respect of the issue of costs and interest if the parties are unable to resolve the issues of entitlement to costs and the calculation of the interest. I note that I am not seized of any appointment to assess the Client’s costs should the parties agree as to her entitlement.

“Registrar Sainty”



[1] Home apparently recommended Ms. Hamilton.

[2] This clause was referred to in this proceeding by Mr. Crickmore as the “widows and orphans” clause.

[3] Some of the specifics of what happened at this meeting are disputed between the parties.

[4] Many of the details about the making of the CFA (and the specifics of this meeting) are disputed. I will review, in detail, the disputed facts when I deal with my decision on the fairness and reasonableness of the CFA later in these reasons.

[5] Exactly how long they were gone is not clear but it was longer than a half an hour and could have been for as long as an hour and a half. Nothing in this decision turns on the length of that meeting.

[6] The evidence is not clear as to whether Ryan Wilson attended this meeting (in person or by phone). Nothing in my reasons turns on his attendance (or not).

[7] The second amended statement of position states the meeting occurred on December 4. During this proceeding it was made clear that the meeting took place on December 5. Nothing turns on the date of the meeting.

[8] Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada

[9]Referring to the decision of the Saskatchewan Court of Appeal in Yule v. City of Saskatoon, (1955), 16 W.W.R. 305 (Sask, Q.B.), aff,d 17 W.W.R 296

[10] Phillips v. Phillips, 2005 ABQB 566; Phillips v. Phillips 2005 ABCA 405; Phillips v. Avena 2005 ABCA 342; Phillips v. Avena 2006 ABCA 19, leave to appeal to the Supreme Court of Canada ref’d [2006] S.C.C.A No. 95; Phillips (Estate) 2007 ABQB 265.

[11] Both parties have accepted Beresford’s report and thus agree that there are 94,129,000 metric tons of available aggregate reserves at Pipeline (which includes 24,675,000 metric tons of main seam gravel) and 13,405,100 metric tons of remaining aggregate reserves at Jervis.

[12] This number represents the mid-point in the range of $105,200,000 (low) to $106,900,000 (high) determined by McFarlane as the value of JCL as set out in the Critique Report.

[13] This amount is the revised value of CHL determined by McEwen per his letter to Ms. Mide-Wilson’s counsel dated May 13, 2011.

[14] This definition is worded slightly differently than the definition of FMV used by McFarlane and McEwen (who both rely on the FMV definition employed by certified business valuators).

[15] This rate reflects the real rate of return, not the inflated rate of return. McFarlane and McEwen use the inflated rate of return in their respective valuations.

[16] In his direct testimony, McCandlish confirmed that he felt there was no sovereign (or country) risk; no political risk; and no environmental risk - all factors to be considered in determining “location risk”.

[17] In his initial report, McCandlish found an NPV for Jervis of $33.3 million which figure was based on an assumed pit life of 19 years. When the final reserve numbers were received from Beresford, McCandlish readjusted his figures to reflect a pit life of 18 years and thus a NPV of $32.1 million.

[18] As noted earlier, McCandlish used a real as opposed to nominal risk-free rate of 2.14% in his calculations. In addition, McCandlish used a 12-month average while McFarlane used the rate in place as at the Valuation Date. This choice affects the determination of FMV as McCandlish uses pre-recession data and lower risk-free rates in his calculations.

[19] McFarlane says that in estimating company specific risk she considered a wide range of factors including, but not limited to, the economic outlook for the Canadian and BC economies at the Valuation Date; the existence of competitors in the industry; dependency on municipal customers; and the industry risk premium associated with companies in highway and street construction.

[20] These values are increased in the Critique Report to between $105.2 million (low) and $106.9 million (high).

[21] This is the mid-point of McFarlane’s low and high ranges of values for JCL.

[22] In the BDO Valuation Report, McFarlane uses a slightly higher value (not the agreed value) as the value for 1701 Lougheed. At the hearing before me, McFarlane adjusted her opinion to account for the agreed upon value of 1701 Lougheed to arrive at this range.

[23] The build-up method is defined as: “an additive model in which the return on an asset is estimated as the sum of a risk-free rate and one or more risk premia. Each premium represents the reward an investor receives for taking on a specific risk.” (Ibbotson SBBI 2008 Valuation Yearbook, Page 37).

[24] As there is little difference between the McFarlane and McEwen reports in respect of the values each has placed on the Trust Assets (other than JCL), I do not intend to review, in any detail, the methodology used by either of them in arriving at their valuations of CHL, Ridge, Heather, Shoshone. In addition, neither McFarlane nor McEwen places a value on Jack Cewe Inc. and I do not intend to make any further comments on that.

[25] See footnote 13.

[26] In preparing his report and in deciding the appropriate discount rate to apply, McEwen looked at two stock market analysts report on Polaris: one dated 10 August 2009 prepared by Canaccord/Adams which uses a 12% discount rate to determine NPV for Polaris; a second prepared by Desjardins Securites dated August 11, 2009 and uses a 15% discount rate to value Polaris.

[27] Richard Wise, “Valuation Issues Relating to Shares of Private Corporations”, Canadian Tax Foundation 56th Annual Tax Conference (September 24-26, 2004) at 16 [Wise].

[28] See, for example, Laycock v. The Queen (1978), 78 DTC 6349 [Laycock].

[29] On the balance sheet, Bank A sets are shown as negative indicating that JCL was in an overdraft position on the Valuation Date.

[30] Per KPMG, the capitalized cash flow approach involves capitalizing maintainable after-tax cash flow from operations. The cash flow approach to value assumes no capital cost allowance or depreciation but capitalizes maintainable earnings:

§  Before depreciation but after notionally assumed income tax on net income before depreciation

§  After sustaining capital reinvestment net of the related tax shield

The present values of the tax advantage accruing as a result of capital cost allowance available (the “tax shield”) at the valuation date is added to the capitalized cash flow as previously defined.

[31] Personal Property Value ($1,360,432) [not disputed] plus Business Value ($74,489,000).

[32] I have not performed any precise accounting of this but for reasons that follow, a precise calculation is not necessary.

[33] Based on his account to the Solicitors which was in evidence in this proceeding.