Champagne v. Sidorsky, (2012) 548 A.R. 10 (QB)

• Judge: Jones, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 13, 2012
• Citations: (2012), 548 A.R. 10 (QB);2012 ABQB 522

Champagne v. Sidorsky (2012), 548 A.R. 10 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AU.079

Douglas K. Champagne, Cheri L. Champagne and Cindy L. Champagne (plaintiffs/defendants by counterclaim) v. Ryan Sidorsky (defendant/plaintiff by counterclaim)

(1001 18773; 2012 ABQB 522)

Indexed As: Champagne v. Sidorsky

Alberta Court of Queen's Bench

Judicial District of Calgary

Jones, J.

August 17, 2012.

Summary:

The plaintiff sued the defendant with respect to a real estate transaction. The plaintiff later wished to limit his participation in the litigation. To that end, he appointed his daughters (Cindy and Cheri) to be his attorneys under an enduring power of attorney. Cindy sought to be characterized as an automatic litigation representative under rule 2.13 of the Rules of Court. McDonald, J., dismissed Cindy's application. As a result, the plaintiff transferred his interest in the impugned lands from himself to himself, Cindy and Cheri as joint tenants. By virtue of their status as co-owners of the lands, they were added as plaintiffs in the action against the defendant. The plaintiffs applied to amend the statement of defence. Cindy sought (1) to be appointed as litigation representative under rule 2.16 or (2) certification of the plaintiffs as a class under the Class Proceedings Act (CPA). Certification would engage the provisions of the CPA and allow Cindy to act as a representative plaintiff. In response to Cindy's application, the defendant sought (1) an order striking the statement of claim and (2) an order for prospective and contingent costs.

The Alberta Court of Queen's Bench determined the issues accordingly: a) Cindy would not be appointed as a litigation representative pursuant to rule 2.16; b) the plaintiffs would not be designated as a class and Cindy would not be appointed as a representative plaintiff under the CPA; c) the plaintiffs would not be designated as a class and Cindy would not be appointed as a representative plaintiff under rule 2.6(1); d) nothing would be struck from the plaintiffs' amended statement of claim, further amended; e) the defendant's request for a prospective and contingent costs order would not be granted; and f) the defendant would receive costs of this application based on Column 1 of Schedule C.

Practice - Topic 30

Actions - Conduct of - General - Solicitors - Representation of parties - The Alberta Court of Queen's Bench discussed the connection between a "litigation representative" under the new Rules and a "next friend" and "guardian ad litem" under the old Alberta Rules of Court - This provided the groundwork for the court's discussion on why, when a litigation representative was appointed, they had to operate through counsel - The court then discussed the requirement that a representative litigant in a class proceeding proceed through counsel - Finally, the court considered the court's discretion to grant an audience to non-lawyers - See paragraphs 18 to 44.

Practice - Topic 35

Actions - Conduct of - General - Representation by non-lawyer - [See Practice - Topic 30 ].

Practice - Topic 35

Actions - Conduct of - General - Representation by non-lawyer - The plaintiff sued the defendant with respect to a real estate transaction - The plaintiff later wished to limit his participation in the litigation - To that end, he appointed his daughters (Cindy and Cheri) to be his attorneys under an enduring power of attorney - Cindy sought to be characterized as an automatic litigation representative under rule 2.13 of the Rules of Court - McDonald, J., dismissed Cindy's application - As a result, the plaintiff transferred his interest in the impugned lands from himself to himself, Cindy and Cheri as joint tenants - By virtue of their status as co-owners of the lands, they were added as plaintiffs in the action against the defendant - Cindy sought, inter alia, to be appointed as litigation representative under rule 2.16 - The Alberta Court of Queen's Bench dismissed the application - Rule 2.16(1) was not intended to apply in this situation and it would not be proper in these circumstances to exercise the court's discretion to allow Cindy to act in a representative capacity - The court was not prepared to appoint Cindy as litigation representative on behalf of her father and/or her sister - See paragraphs 45 to 53.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - The plaintiff sued the defendant with respect to a real estate transaction - The plaintiff later wished to limit his participation in the litigation - To that end, he appointed his daughters (Cindy and Cheri) to be his attorneys under an enduring power of attorney - Cindy sought to be characterized as an automatic litigation representative under rule 2.13 of the Rules of Court - McDonald, J., dismissed Cindy's application - As a result, the plaintiff transferred his interest in the impugned lands from himself to himself, Cindy and Cheri as joint tenants - By virtue of their status as co-owners of the lands, they were added as plaintiffs in the action against the defendant - Cindy sought, inter alia, certification of the plaintiffs as a class under the Class Proceedings Act (CPA) - Certification would engage the provisions of the CPA and allow Cindy to act as a representative plaintiff - The Alberta Court of Queen's Bench dismissed the application - The court was not convinced that a class proceeding would be a fair or efficient way to address these issues, but it was convinced that it would not be the preferable method to address the issues - The court declined to exercise its discretion to designate the plaintiffs as a class for purposes of the CPA - See paragraphs 54 to 64.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - The plaintiff sued the defendant with respect to a real estate transaction - The plaintiff later wished to limit his participation in the litigation - To that end, he appointed his daughters (Cindy and Cheri) to be his attorneys under an enduring power of attorney - Cindy sought to be characterized as an automatic litigation representative under rule 2.13 of the Rules of Court - McDonald, J., dismissed Cindy's application - As a result, the plaintiff transferred his interest in the impugned lands from himself to himself, Cindy and Cheri as joint tenants - By virtue of their status as co-owners of the lands, they were added as plaintiffs in the action against the defendant - Cindy sought, inter alia, certification of the plaintiffs as a class and to be designated representative plaintiff under rule 2.6(1) - The Alberta Court of Queen's Bench dismissed the application - These were not "appropriate circumstances" in which to exercise discretion to allow Cindy to act in a representative capacity without engaging counsel - Were Cindy to attempt to invoke rule 2.6(1), without engaging counsel, the court would be alert to the possibility that she might be found to be engaging in the unauthorized practice of law - Nevertheless, since there were not numerous persons with a common interest no order for a class designation and the appointment of a representative plaintiff would follow - The "negative reasons" operating against certification exceeded any benefits that would come from proceeding as a class: a class proceeding was not the preferable way to prosecute this action - See paragraphs 65 to 81.

Cases Noticed:

Nahirney v. Ogilvie & Co. et al. (2011), 525 A.R. 14; 2011 ABQB 586, refd to. [para. 25].

Salamon et al. v. Alberta (Minister of Education) et al. (1991), 120 A.R. 298; 8 W.A.C. 298 (C.A.), leave to appeal denied (1993), 150 N.R. 306; 141 A.R. 318; 46 W.A.C. 318 (S.C.C.), refd to. [para. 25].

L.C. et al. v. Alberta et al. (2011), 509 A.R. 72; 2011 ABQB 42, refd to. [para. 25].

Twinn et al. v. Public Trustee (Alta.) (2012), 543 A.R. 90; 2012 ABQB 365, refd to. [para. 25].

Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610, refd to. [para. 29].

Torrance v. Alberta. (2010), 477 A.R. 343; 483 W.A.C. 343; 2010 ABCA 88, refd to. [para. 30].

Professional Sign Crafters (1988) Ltd. et al. v. Wedekind et al. (1994), 153 A.R. 358 (Q.B.), refd to. [para. 38].

Pacer Enterprises Ltd. v. Cummings et al. (2004), 346 A.R. 161; 320 W.A.C. 161; 2004 ABCA 28, dist. [para. 38].

Balogun v. Pandher (2009), 469 A.R. 187; 470 W.A.C. 187; 2009 ABCA 409, refd to. [para. 40].

T.L. v. Director of Child Welfare (Alta.) (2008), 436 A.R. 217; 2008 ABQB 114, affd. (2009), 457 A.R. 141; 457 W.A.C. 141; 2009 ABCA 182, refd to. [para. 57].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 61].

Korte et al. v. Deloitte Haskins & Sells et al. (1993), 135 A.R. 389; 33 W.A.C. 389 (C.A.), refd to. [para. 70].

Goodfellow v. Knight et al. (1977), 5 A.R. 573 (Q.B.), refd to. [para. 77].

Statutes Noticed:

Rules of Court (Alta.), rule 2.16 [para. 45]; rule 2.6(1) [para. 65].

Authors and Works Noticed:

Alberta Law Reform Institute, Alberta Rules of Court Project: Self-Represented Litigants, Consultation Memorandum, No. 12.18 (2005), para. 69 [para. 33].

Stevenson & Côté, Civil Procedure Encyclopedia (2003), vol. 1, pp. 5-4 [para. 27].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 341 [para. 29].

Counsel:

Cindy L. Champagne (self-represented), for the plaintiffs/defendants by counterclaim;

B. Adam E. Brener, for the defendant/plaintiff by counterclaim.

These applications were heard on July 13, 2012, by Jones, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on August 17, 2012.