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CIVIL PROCEDURE - Parties - Representation of - By non-lawyer

Friday, August 18, 2017 @ 8:45 AM  


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Appeal by the plaintiff from an order denying him the right to be represented by his father. The appellant was arrested and charged with possession for the purpose of trafficking in illegal drugs. The charge was subsequently withdrawn by the Crown. The appellant commenced an action against the City of Charlottetown and four police officers for general and exemplary damages for breach of his ss. 2 and 8 Charter rights, misfeasance in public office and abuse of authority involving racial profiling, harassment and intimidation. The appellant’s father was assisting the appellant in the lawsuit. He drafted the statement of claim and amended statement of claim, as well as the factum filed in opposition to the defendants' motion. He also participated in the production of an affidavit of documents, as well as case management calls with the court. The defendants brought a motion for an order prohibiting the appellant’s father from acting as a non-lawyer agent on behalf of the appellant on grounds that he was practicing law without a license. The judge granted the motion, finding that the appellant’s father was engaged in the practice of law contrary to ss. 20 and 21 of the Legal Professions Act. He also found that Rule 15.01 was a bar to the appellant’s father acting for the appellant in the proceeding. The judge concluded that it would be an error of law for the court to exercise its inherent jurisdiction and allow the appellant’s father to act for the appellant in the face of his contravention of the Act and the prohibition contained in Rule 15.01(c). The appellant appealed the decision, arguing that the motions judge made errors of law in making his findings and that he failed to provide sufficient reasons for his decision.

HELD: Appeal allowed. The motions judge was not biased. He was entitled to ask questions, draw conclusions and make comments, and his tone throughout the proceedings was respectful. His reasons were sufficient. However, in coming to the conclusion that the appellant’s father was practicing law, the motions judge asked himself the wrong question and therefore made an error of law. The purpose of the Legal Profession Act was to protect the public from charlatans who tried to pass themselves off as knowledgeable in the law for some personal gain. A person was not practicing law even if the person was doing many of the things enumerated in s. 21 of the Legal Profession Act, provided he was not doing it for fee gain, reward, or otherwise, directly or indirectly. There must be something given to the person in exchange for his doing one or more of the enumerated items listed in s. 21. In this case, the father was not charging a fee for his service and expected nothing in return. He was simply helping the appellant because he believed he had more knowledge of the law. Rule 15.01(c) was a prima facie bar to a non-solicitor representing a person in a proceeding. However, it did not oust the inherent jurisdiction of the court to allow a non-solicitor to represent a person where it was necessary in the interests of justice. The matter was remitted back to the lower court for a determination of whether or not the court should exercise its inherent jurisdiction to allow the appellant’s father to represent the appellant considering all of the relevant factors.

Ayangma v. Charlottetown (City), [2017] P.E.I.J. No. 27, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., July 28, 2017. Digest No. TLD-August142017009