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LAWYERS - Reserved area of practice

Friday, November 10, 2017 @ 1:19 PM  


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Appeal by the Barreau du Québec from a judgment of the Quebec Court of Appeal setting aside a decision granting motions for judicial review of decisions of the Administrative Tribunal of Québec (ATQ). This appeal concerned the statutory right of the Minister of Employment and Social Solidarity (Minister) to “be represented” before the social affairs division of the ATQ by a person who was not an advocate. In particular, the Court had to determine whether it was reasonable for the ATQ to conclude that a person who was not an advocate could, on the Minister’s behalf, prepare, draw up and sign motions or other written proceedings intended for use in certain proceedings before that tribunal. In 2011, the ATQ’s social affairs division made decisions on the granting of social aid in two cases in which the opposing parties were the Minister and individuals. The Minister subsequently applied for a review of those two decisions under s. 154 of the Act respecting administrative justice, presenting to the ATQ motions for review that had been prepared, drawn up, signed and filed in the Minister’s name by a person who was not an advocate. In both those cases, the individuals in question brought a motion to dismiss on the ground that the Minister’s written proceedings had not been prepared by a practising advocate entered on the Roll of the Order of the Barreau du Québec. The ATQ dismissed the two motions to dismiss concerning the motions for review that had been filed in the Minister’s name. It concluded that a person representing the Minister who was not an advocate had the power to prepare motions for review under s. 102 of the Act respecting administrative justice and that this power was not limited by the Act respecting the Barreau du Québec. The individuals involved in the cases before the ATQ applied, with the Barreau’s support, to the Quebec Superior Court for judicial review of the ATQ’s decisions. The Superior Court held that a person chosen by the Minister to represent him or her who was not an advocate could plead or act orally before the ATQ’s social affairs division, but that only an advocate or a solicitor could prepare and draw up the related written proceedings. The Court of Appeal concluded that, regardless of the applicable standard of review, the decisions of the ATQ were acceptable and set aside the Superior Court’s judgment.

HELD: Appeal dismissed. The reasonableness standard was presumed to apply, given that the central issue entailed the interpretation of s. 102 of the Act respecting administrative justice, which was in the ATQ’s enabling statute and which set out procedural rules that applied in proceedings before it. The main issue before the ATQ had been whether the Minister’s right to “be represented” that was provided for in s. 102 included the preparation and drawing up of written proceedings or motions intended for use before the ATQ’s social affairs division. This issue did not come close to being a question of central importance to the legal system as a whole, and it was clear that the legislature intended the ATQ to be able to decide any question related to proceedings pertaining to social aid, including any question related to the Minister’s right to “be represented” before the social affairs division, therefore the presumption in favour of reasonableness had not been rebutted. Further, in the legal context, the ordinary sense of the verb “represent” normally covered all aspects of the representation of others before a court or tribunal. It was also clear that the legislature’s original intent was to permit people who were not advocates to represent the Minister before the Commission des affaires sociales in order to enhance the flexibility of that body and to avoid “over judicializing” its proceedings. The Barreau’s argument that s. 102 of the Act respecting administrative justice conflicted with s. 128(1) of the Act respecting the Barreau du Québec was rejected. Section 129(b) of the Act respecting the Barreau du Québec provided that s. 128 of that Act neither limited nor restricted rights that were specifically defined and granted to any person by any public or private law. The Minister’s right under s. 102 of the Act respecting administrative justice to be represented by a person of his or her choice was thus not diminished in the least by s. 128 of the Act respecting the Barreau du Québec. Accordingly, the ATQ’s conclusion regarding the scope of the Minister’s right to be represented by a person of his or her own choice was reasonable.

Barreau du Québec v. Quebec (Attorney General), [2017] S.C.J. No. 56, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ. November 10, 2017. Digest No. TLD-November62017012SCC