Canada: The Right To "Self-Representation" Does Not Apply To Corporations In Alberta

On July 4, the Alberta Court of Appeal held that a corporation cannot be represented in the superior courts by a non-lawyer. Madam Justice Rowbotham's decision in Park Avenue Flooring Inc v EllisDon Construction Services Inc concerned an appeal by Park Avenue that included an application for an order permitting Deborah Miller, a director and officer of Park Avenue, to represent Park Avenue for the appeal. Ms. Miller is not a member of the Law Society of Alberta, but had represented Park Avenue at trial pursuant to a 2007 order of a justice of the Court of Queen's Bench (the Queen's Bench Order).  

Court discretion on representation

The Queen's Bench Order was granted prior to the new Alberta Rules of Court (the New Rules) coming into force. Under the old Alberta Rules of Court (the Old Rules), the court had the discretion to permit a corporation to be represented before the court by an agent other than a lawyer. However, the New Rules do not provide for that discretion, and Rule 2.23 specifically states the limited assistance that may be provided to a party by a non-lawyer must not contravene section 106(1) of the Legal Profession Act (the LPA). That section prohibits non-lawyers from "commencing, carrying-on, or defending an action on behalf of any other person."

Madam Justice Rowbotham cited several cases decided since the New Rules that also held a non-lawyer cannot represent a corporation (see for example 908077 Alberta Ltd [Escape & Relax] v 1313608 Alberta Ltd, in which it was held that only an "individual" may be self-represented in the superior courts). Park Avenue had attempted to distinguish those cases on, among other things, the basis of the pre-existing Queen's Bench Order.

However, the court held that regardless of the Queen's Bench Order, it could not sanction Ms. Miller's representation, which would constitute an offence under the LPA. Interestingly, there was no discussion of how the Old Rules could have permitted the court to sanction the commission of such an offence.  

This case makes clear that pursuant to the New Rules and the LPA, the court retains no discretion to permit a corporation to be represented by a person who is not a lawyer. What remains unclear is what happens to any current corporate litigants attempting some form of self-representation in an ongoing matter, rather than at the time an action or appeal is commenced. It may be that on an application to address the issue, those actions will be stayed for a short time to permit the corporation to obtain counsel.    

Provincial Court, arbitrations and non-lawyers

The ruling in this case applies to Alberta superior courts and does not apply to the Provincial Court. Pursuant to section 62(1)(b) of the Provincial Court Act (the PCA), a non-lawyer agent may represent an individual or corporate litigant.  

It remains to be seen whether this decision will apply to arbitrations. There are no cases that cite section 106 of the LPA in relation to arbitration, and the Arbitration Act does not have a similar provision as section 62(1)(b) of the PCA.

However, in Law Society of Upper Canada v Chiarelli, the Ontario Superior Court found that a non-lawyer agent appearing before an administrative tribunal "as a paid representative to make submissions, examine witnesses, and cross-examine witnesses is quintessentially legal... work," and issued an injunction to prevent the agent from continuing to act.1

That quote was cited with approval in Law Society of Alberta v Beaver. Although an arbitral hearing is not a "court of civil... jurisdiction" referred to in the LPA, arbitrations certainly involve making submissions, examining witnesses and, frequently, arguing legal issues. It may well be that such activities cannot be carried on by a non-lawyer agent on behalf of a corporation, as they constitute the activities of a barrister and solicitor.    


1 The Ontario Court of Appeal reversed a portion of this decision in Law Society v Chiarelli, 2014 ONCA 391, but expressly agreed with the lower court that the activities of the non-lawyer constituted the practice of law.

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