1.2: Purpose and intention of these rules
2.23: Assistance before the Court

Case Summary

In a Cross-Motion, brought before a Case Management Judge, the Appellant asked for six English barristers (or some of them) to be allowed to argue a Motion for the Appellant, before the Court of Queen’s Bench. The Case Management Judge dismissed this request. The issue was Appealed to the Court of Appeal. The Law Society of Alberta, as an additional Respondent, opposed the Appeal.

The Court indicated that Rule 2.23(2) “is about a ‘McKenzie friend’ who helps the party silently, but cannot speak: McKenzie v McKenzie [1971] P 33, [1970] 3 All ER 1034 (CA)”. It was noted that the Appellant was not requesting this type of assistance from the English Barristers, which rendered Rule 2.23(2) only indirectly relevant.

The Court also indicated that Rule 1.2, which has to do with the purpose and intent of the Rules, was relevant, although, the exact relevance was not discussed.

Rule 2.23(3)(c) specifically indicates that the assistance cannot be permitted if it “would not meet the purpose and intention” of the Rules. Further, Rule 2.23 cannot permit assistance that would contravene section 106(1) of the Legal Profession Act, RSA 2000 (“LPA”), c L-8. Section 106(1)(c) of the LPA includes a prohibition against those who are not members of the Law Society of Alberta from acting “as a barrister or as a solicitor in any court of civil or criminal jurisdiction”. The Court determined that “giving argument or leading evidence on behalf of one of the parties… ” came within the meaning of section 106(1)(c) of the LPA. Accordingly, what the Appellant was asking for was contrary to the LPA and therefore also contrary to Rule 2.23(3). Even if the request was not contrary to the Rules, it was noted that under the common law, the statute would have prevailed over a regulation such as the Rules.

The Appellant attempted to argue that there was an exception to section 106 of the LPA, being “unpaid work, especially when the beneficiary has no funds”. The Court noted that validating this argument would mean that as long as there was no fee, anybody could bypass the LPA. The Court concluded that this was not the intention of the Legislature.

The Appeal was dismissed. It was further noted that what the Appellant proposed would actually be a quasi-criminal offence that neither the Rules nor the inherent powers of the Court could sanction.

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