yamauchi j

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

Case Summary

The Plaintiffs applied to allow foreign lawyers a right of audience to assist them in their case against the Defendants. The Plaintiffs claimed to be impecunious and unable to prosecute the case without substantial pro bono help, which was offered by the foreign lawyers. The Plaintiffs had counsel of record, but they requested that the foreign lawyers be permitted to, amongst other forms of assistance, question witnesses in the absence of counsel of record.

A preliminary issue in the Application was whether the Defendants, the Governments of Alberta and Canada, had standing to make submissions. It was the Applicants’ position that: (1) the Intervener, the Law Society of Alberta, ably represented the interests of the Defendants, (2) there was a massive asymmetry in resources favouring the Defendants, and (3) the Defendants’ participation in the Application would only interfere with the Plaintiffs’ right to choose their own counsel. Yamauchi J. rejected these arguments given that the Defendants were “parties” to the Proceeding and each would be a “person affected”, pursuant to Rule 6.3(3). He held that “[t]he purpose of New Rules r. 6.3(3) is to provide the Defendants, as parties and affected parties, an opportunity to respond. The Court determined that any Order made by the Court (relating to the main issue of the Application) would either impact the Defendants or the way in which the Defendants managed their cases. The Court also noted that excluding the Defendants could, contrary to Rule 1.2, result in further delay to an Action that had already faced significant delay.

With respect to the main issue, Yamauchi J. determined that, “despite the apparent broadness of New Rules r. 2.23(1), a court has no discretion to permit assistance where the court’s ruling would contravene LPA s. 106(1)” (Legal Profession Act, RSA 2000, c. L-8 (the “LPA”)). The Court referred to obiter dictum in Professional Sign Crafters (1988) Ltd v Wedekind, [1994] 7 WWR 137, which distinguished between a right of audience under “old” Rule 5.4 and the right to practice law under the then equivalent of Section 106(1) of the LPA. Yamauchi J. stated that there was no suggestion that the Court in that case intended its comments to extend so as to allow trained lawyers to circumvent the regime of self-regulation established by the Alberta Legislature, particularly where the party seeking this relief was already represented by counsel of record. In concluding that the Rules and the LPA prohibited the foreign lawyers from the expanded participation that they sought, Yamauchi J. noted that the Information Note to Rule 2.23 emphasizes that “assistance” must fall short of “acting as a barrister or solicitor”. Yamauchi J. found no need to make a determination with respect to whether Rule 2.23 was limited to self-represented litigants, nor did His Lordship specifically determine the breadth of Rule 2.23. His Lordship did indicate that the foreign lawyers were not prohibited from providing support to counsel of record through research and drafting, provided that counsel assumed ultimate responsibility for the work product.

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