Who Can Represent a Corporation in the Alberta Court of Queen's Bench? PDF Print

In the past, the Courts have permitted directors, or other agents to represent corporations in court.  This is still an acceptable practice in the Provincial Court of Alberta; however some recent case law from the Alberta Court of Queen’s Bench and the Alberta Court of Appeal indicates that this practice is no longer permissible in the Court of Queen’s Bench and the Court of Appeal, and corporations must retain a lawyer to represent them at these levels of Court.

On January 20, 2015, Associate Chief Justice J. D. Rooke heard an application where a director of a company was seeking permission from the Court to continue to represent the company in the litigation.  Justice Rooke reviewed the New Rules of Court which came into force on November 1, 2010, the Legal Professions Act, and the case law, and determined that the New Rules, in combination with the Legal Professions Act require a corporation to hire a lawyer to represent it in the Court of Queen’s Bench.  He stated at paragraph 56:

[56]           In summary:

1.         an individual may represent themselves in the Alberta Court of Queen’s Bench;

2.         an estate, corporation, or litigation representative must be represented in the Alberta Court of Queen’s Bench by a person authorized to practice law under the Legal Profession Act;

3.         any common law or inherent discretion to permit representation in the Alberta Court of Queen’s Bench by a non-lawyer has been extinguished by the New Rules;

4.         New Rule 2.23 allows any person to provide only silent and passive support in court, provided those activities are restricted to a “McKenzie Friend” role; and

5.         Professional Sign Crafters (1988) Ltd. v Wedekind, Pacer Enterprises Ltd. v Cummings, and Balogun v Pandher are no longer good law in relation to the right to physically appear in court as a representative and have been overruled by Lameman v Alberta (C.A.).

908077 Alberta Ltd v 1313608 Alberta Ltd, 2015 ABQB 108

This decision was appealed, and Justice Slatter on March 23, 2015, in confirming that that the Appellant Corporation required a lawyer to represent it in the Appeal stated a paragraph 3:

“There are several advantages to doing business through a corporation (such as limited liability, and perpetual succession) but also some burdens. Using a lawyer during litigation is one such burden.”

908077 Alberta Ltd. (Escape & Relax) v 1313608 Alberta Ltd., 2015 ABCA 117

This issue again came up in a case before Justice R. A. Graesser on June 1, 2015.  He again reaffirmed the prohibition of a non-lawyer representing a company in the Court of Queen’s Bench, but then at paragraphs 21-22 and 29 made some comments about the extent of what “representing” means.  He stated:

[21]        A corollary issue is whether a corporation may self-represent to the extent of preparing and filing pleadings, affidavits and other court documents. Section 106(2)(i) references preparation of documents. A strict interpretation of that suggests that the Legal Profession Act prohibits the preparation of court documents for a corporation other than by a lawyer.

[22]        That would mean that the sole director and officer of a small corporation (for example) would be unable to prepare and file a statement of defence or demand of notice, or prepare an affidavit of records or take any step required in civil litigation unless the work was done by a lawyer….

[29]        In my view, the issue remains an open issue without binding authority on the subject. I leave for another day, when the point can be argued in an adversarial context likely with the Law Society as an intervenor, whether the acts of preparing and filing court documents by a non-lawyer with a significant and legitimate connection to a corporation contravenes the Legal Profession Act and is thus impermissible under Rule 2.23. I make no such finding here but do so in the absence of argument on the point.

Landmass Dirtworx Ltd v Prairie Mountain Construction (2010) Inc, 2015 ABQB 362

In conclusion, according to the above case law, the Court of Queen’s Bench will not permit a corporation to be represented by a non-lawyer in Court.  The issue of whether a corporation must hire a lawyer to commence or defend a claim or prepare other court documents in the Court of Queen’s Bench is left somewhat open, but a corporation who does not hire a lawyer to do these things puts the corporation’s standing before the Court at risk and may unwittingly be involved in corollary litigation about their ability to prepare these documents on their own.

 

Gurevitch Burnham Law Office

August 26, 2015

 

Who can Represent a Corporation in the Alberta Court of Queen’s Bench?   In the past, the Courts have permitted directors, or other agents to represent corporations in court.  This is still an acceptable practice in the Provincial Court of Alberta, however some recent case law from the Alberta Court of Queen’s Bench indicates that this practice is no longer permissible in the Court of Queen’s Bench.   On January 20, 2015, Associate Chief Justice J. D. Rooke heard an application where a director of a company was seeking permission from the Court to continue to represent the company in the litigation.  Justice Rooke reviewed the New Rules of Court which came into force on November 1, 2010, the Legal Professions Act, and the case law, and determined that the New Rules, in combination with the Legal Professions Act require a corporation to hire a lawyer to represent it in the Court of Queen’s Bench.  He stated at paragraph 56:   [56]           In summary: 1.         an individual may represent themselves in the Alberta Court of Queen’s Bench; 2.         an estate, corporation, or litigation representative must be represented in the Alberta Court of Queen’s Bench by a person authorized to practice law under the Legal Profession Act; 3.         any common law or inherent discretion to permit representation in the Alberta Court of Queen’s Bench by a non-lawyer has been extinguished by the New Rules; 4.         New Rule 2.23 allows any person to provide only silent and passive support in court, provided those activities are restricted to a “McKenzie Friend” role; and 5.         Professional Sign Crafters (1988) Ltd. v Wedekind, Pacer Enterprises Ltd. v Cummings, and Balogun v Pandher are no longer good law in relation to the right to physically appear in court as a representative and have been overruled by Lameman v Alberta (C.A.).   908077 Alberta Ltd v 1313608 Alberta Ltd, 2015 ABQB 108   This decision was appealed, and Justice Slatter on March 23, 2015, in confirming that that the Appellant Corporation required a lawyer to represent it in the Appeal stated a paragraph 3:   “There are several advantages to doing business through a corporation (such as limited liability, and perpetual succession) but also some burdens. Using a lawyer during litigation is one such burden.”   908077 Alberta Ltd. (Escape & Relax) v 1313608 Alberta Ltd., 2015 ABCA 117   This issue again came up in a case before Justice R. A. Graesser on June 1, 2015.  He again reaffirmed the prohibition of a non-lawyer representing a company in the Court of Queen’s Bench, but then at paragraphs 21-22 and 29 made some comments about the extent of what “representing” means.  He stated:   [21]        A corollary issue is whether a corporation may self-represent to the extent of preparing and filing pleadings, affidavits and other court documents. Section 106(2)(i) references preparation of documents. A strict interpretation of that suggests that the Legal Profession Act prohibits the preparation of court documents for a corporation other than by a lawyer.   [22]        That would mean that the sole director and officer of a small corporation (for example) would be unable to prepare and file a statement of defence or demand of notice, or prepare an affidavit of records or take any step required in civil litigation unless the work was done by a lawyer….   [29]        In my view, the issue remains an open issue without binding authority on the subject. I leave for another day, when the point can be argued in an adversarial context likely with the Law Society as an intervenor, whether the acts of preparing and filing court documents by a non-lawyer with a significant and legitimate connection to a corporation contravenes the Legal Profession Act and is thus impermissible under Rule 2.23. I make no such finding here but do so in the absence of argument on the point.   Landmass Dirtworx Ltd v Prairie Mountain Construction (2010) Inc, 2015 ABQB 362   In conclusion, according to the above case law, the Court of Queen’s Bench will not permit a corporation to be represented by a non-lawyer in Court.  The issue of whether a corporation must hire a lawyer to commence or defend a claim or prepare other court documents in the Court of Queen’s Bench is left somewhat open, but a corporation who does not hire a lawyer to do these things puts the corporation’s standing before the Court at risk and may unwittingly be involved in corollary litigation about their ability to prepare these documents on their own.   Gurevitch Burnham Law Office August 26, 2015