2.23: Assistance before the Court

Case Summary

The Action stemmed from a commercial residential housing development for which the Plaintiff solely existed and was a corporate vehicle for the individual joint owners. The venture was ultimately unsuccessful and the Plaintiff sued the Defendant, together with two of its officials with whom the Plaintiff had dealings. The lawsuit arrived at its second Trial date and, contrary to a prior Order of the Court, the Plaintiff remained unrepresented. The spokesperson for the Plaintiff, one of the joint owners, sought an adjournment of the Trial date to attempt to secure counsel for a future third attempt at conducting the litigation. The spokesperson was also a named Defendant in a defamation Action commenced by the two individual Defendants and another senior employee of the Defendant. That Action was joined with the first Action and the spokesperson also sought an adjournment on her own behalf with respect to the latter Action.

The Plaintiff company and the spokesperson had a series of counsel representing them since the start of the litigation. A series of case management appearances and motions were heard by Ashcroft J. and, arising from those, an Order was issued which required the Plaintiff to retain counsel prior to the exchange of case conference summaries. No counsel was retained. Throughout the case management process, Ashcroft J. had granted the spokesperson a right of audience to speak on behalf of the Plaintiff corporation - which culminated in an Application by the spokesperson to act for both herself and the Plaintiff company at Trial. Justice Ashcroft heard the Application in April 2022 and had concluded that the newly added Rule 2.23(4), which preserves the Court’s discretion to grant a “right of audience” for a non-lawyer to speak on behalf of another Party, did not extend to allowing such an individual to fully conduct a Trial.

On the Application for an adjournment, Devlin J. confirmed whether the spokesperson was again seeking permission to appear for the Plaintiff company pursuant to Rule 2.23(4) and she confirmed she was. Counsel for the opposing Parties did not oppose her being granted a right of audience and Devlin J. found it was appropriate that she be permitted to speak on behalf of the Plaintiff company. The Court noted that individuals who choose to act through corporations must take the good with the bad. One of the consequences of the legal separateness of corporations from their shareholders is that the corporation requires someone to speak on its behalf at Court proceedings. A director, officer or shareholder may be allowed to fulfill this role on a limited basis as a spokesperson under the new Rule 2.23(4). They may not, however, effectively practice law by representing the corporation as Trial counsel.

Ultimately, the Court denied the Plaintiff company’s Application for an adjournment and the necessary consequence of such finding was that the Plaintiff company stood before the Court unrepresented and unable to advance its claim. As such, the Action was dismissed.

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