Wakeling JA

2.27: Retaining lawyer for limited purposes
2.29: Withdrawal of lawyer of record
13.5: Variation of time periods

Case Summary

Baron Real Estate Investment Ltd. (“Baron”) sought permission to Appeal the Edmonton Subdivision and Development Appeal Board’s Decision which upheld a development permit granted to the Faith Fellowship Church of God. Wakeling J.A. dismissed the Application on the basis that the questions of law on Appeal were not of sufficient importance, and the Appeal did not have a “reasonable chance of success”.

Wakeling J.A. also commented on an “unsatisfactory” aspect of the Application, which resulted in Baron having no counsel appear on its behalf at the Application. At the initial hearing date, new counsel had appeared on behalf of Baron, advised the Court that he had just been retained on a limited basis, and sought an adjournment so that he could review the file and prepare for the Application. Justice Wakeling noted that Baron’s counsel acted appropriately in advising the Court that he had been retained on a limited basis. Although Rule 2.27(1) only requires such notice if a lawyer is retained by a self-represented litigant or is the lawyer of record, it was still appropriate for counsel to inform the Court of his or her limited role. Baron’s counsel requested that the proceedings be adjourned for four weeks, but due to the time constraints, the Application was adjourned to be heard the following day. Baron’s new counsel did not appear the following day. Instead, he wrote to the Court to advise that he had withdrawn as lawyer of record.

Wakeling J.A. stated that Rule 2.29 provides an “unambiguous protocol” which should be followed to withdraw as lawyer of record: lawyers must file a Notice of Withdrawal, serve it on the other parties, and file an Affidavit of Service. The withdrawal will then take effect 10 days after the Affidavit of Service is filed.

Justice Wakeling emphasized that if the limited nature of a lawyer’s retainer prevents him or her from acting if an adjournment is not granted, he or she must request permission to withdraw as a lawyer of record, effective immediately. The Court may abridge the timelines set out in Rule 2.29 pursuant to Rule 13.5(2). Had Baron’s counsel taken this course of action, he could have been relieved from the duty to appear at the Application.

The Application for permission to appeal was denied.

View CanLII Details