Lameman et al. v. Alberta et al.,

• Judge: C,Read,Rowbotham
• Neutral Citation: 2012 ABCA 59
• Subject Matter: BARRISTERS AND SOLICITORS,PRACTICE,STATUTES,COURTS
• Citation: 2012 ABCA 59,(2012), 522 A.R. 140,522 AR 140,(2012), 522 AR 140,522 A.R. 140
• Date: 09 January 2012
• Court: Court of Appeal (Alberta)

Lameman v. Alta. (2012), 522 A.R. 140; 544 W.A.C. 140 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.003

Alphonse Lameman on His Own Behalf and on Behalf Of All Other Beaver Lake Cree Nation Beneficiaries of Treaty No. 6, and Beaver Lake Cree Nation (appellants/plaintiffs) v. Her Majesty the Queen in Right of the Province of Alberta and The Attorney General of Canada (respondents/defendants) and The Law Society of Alberta (intervenor/intervenor)

(1103-0186-AC; 2012 ABCA 59)

Indexed As: Lameman et al. v. Alberta et al.

Alberta Court of Appeal

Côté and Rowbotham, JJ.A., and Read, J.(ad hoc)

March 1, 2012.

Summary:

The defendants brought applications to strike under rule 129 of the old Rules of Court. The plaintiffs sought an adjournment of the applications to strike, based on their impecuniosity.

The Alberta Court of Queen's Bench, in a decision reported at [2011] A.R. Uned. 79, granted the adjournment. The plaintiffs applied on behalf of certain lawyers from Tooks Chambers, UK ("Tooks barristers") for a right of audience to assist the plaintiffs (pro bono application). They claimed to be impecunious and unable to prosecute the case without substantial pro bono assistance, which the Tooks barristers had agreed to provide.

The Alberta Court of Queen's Bench, in a decision reported at 521 A.R. 99, dismissed the application. The defendants sought costs arising out of the adjournment of the applications to strike the plaintiffs' pleadings.

The Alberta Court of Queen's Bench, in a decision reported at 521 A.R. 112, awarded the defendants costs on an enhanced scale (Schedule C, Column III), plus all the disbursements the defendants had incurred in preparing and filing their briefs in anticipation of the applications to strike and for the adjournment application, payable immediately. The plaintiffs sought leave to appeal the costs order.

The Alberta Court of Queen's Bench, in a decision reported at 521 A.R. 121, dismissed the application. The plaintiffs appealed the pro bono decision.

The Alberta Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 6266

Unauthorized practice (incl. offences) - Acting as a solicitor - The Alberta Court of Appeal held that it had no doubt that a non-party appearing in a court and giving argument or leading evidence on behalf of one of the parties, ordinarily came within the phrase "act as a barrister or as a solicitor in any court ..." in s. 106 of the Legal Profession Act - That was all the more clear when that person's ordinary profession was that of a barrister - No exception existed for unpaid work - See paragraphs 12 to 32.

Barristers and Solicitors - Topic 6268

Unauthorized practice - Acting as a solicitor - Exceptions - [See Barristers and Solicitors - Topic 6266 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The defendants applied to strike the plaintiffs' pleadings - The plaintiffs applied on behalf of certain lawyers from the UK for a right of audience to assist the plaintiffs - They claimed to be impecunious and unable to prosecute the case without substantial pro bono assistance, which these lawyers had agreed to provide - The plaintiffs argued that despite the wording of s. 106 of the Legal Profession Act, the Queen's Bench had inherent jurisdiction to allow their application - They referred to rule 2.23(1) which permitted a person to "assist" the court in any manner and on any terms and conditions the court considered appropriate - The chambers judge dismissed the application - The Alberta Court of Appeal dismissed the plaintiffs' appeal - The court stated that "One might wonder whether R 2.23(1) would give an exemption from what the Legal Profession Act would otherwise bar. But that does not really matter here, for two reasons. First, the only subrule suggested for that role is R 2.23(1), on assistance. It is the operative part of that Rule. But subrule (3) expressly prevails over subrule (1). And subrule (3) says that the court cannot permit assistance '... that would contravene section 106(1) of the Legal Profession Act'. And second, it is elementary that a regulation cannot contradict a statute; in the case of conflict, the statute prevails. That common-law rule is expressly confirmed where the regulation in question is a Rule of Court: s 28.1(3) of the Judicature Act ..." - Further, "Leaving aside the Charter, it is elementary Canadian constitutional law that within their respective lists of legislative topics, Parliament and the provincial legislatures are supreme, and can enact anything, and the courts cannot override that." - The Charter had not been argued here - See paragraphs 9 and 11.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The defendants applied to strike the plaintiffs' pleadings - The plaintiffs applied on behalf of certain lawyers from the UK for a right of audience to assist the plaintiffs - They claimed to be impecunious and unable to prosecute the case without substantial pro bono assistance, which these lawyers had agreed to provide - The plaintiffs argued that despite the wording of s. 106 of the Legal Profession Act, the Queen's Bench had inherent jurisdiction to allow their application - They referred to rule 2.23(1) which permitted a person to "assist" the court in any manner and on any terms and conditions the court considered appropriate - A Queen's Bench judge dismissed the application, holding that the court had no inherent jurisdiction to make an order negating the Legislature's unambiguous expression of its will - Further, the court declined to exercise its inherent jurisdiction to grant such an order - The Alberta Court of Appeal dismissed the plaintiffs' appeal - The judge's second or alternative conclusion was not spelled out in the reasons, but his conclusion was not surprising - Evidence of the plaintiffs' lack of funds was unsatisfactory - There was no suggestion that an attempt had been made to find a Canadian lawyer who would do the work without charge - It was not suggested that the six overseas barristers had special qualifications to resist the motions to strike, than the average Canadian litigation lawyer had - The suit and motions to strike were about Canadian aboriginal law - It was sui generis and involved a lot of Western Canadian history and Canadian constitutional law not shared with other Commonwealth countries - There was no evidence or even a suggestion that any of the UK lawyers was trained in Canadian constitutional or aboriginal law - The case law was now very extensive and could not be mastered over a weekend - See paragraphs 41 to 56.

Courts - Topic 8345

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - [See first Courts - Topic 2004 ].

Practice - Topic 3

General principles and definitions - Policy of practice rules - [See first Courts - Topic 2004 ].

Practice - Topic 5

General principles and definitions - Nature and interpretation of practice rules (incl. practice memoranda or notes) - [See first Courts - Topic 2004 ].

Practice - Topic 35

Actions - Conduct of - General - Representation by non-lawyer - [See first Courts - Topic 2004 ].

Practice - Topic 3087

Applications and motions - Applications - Evidence on applications - The defendants applied to strike the plaintiffs' pleadings - The plaintiffs applied on behalf of certain lawyers from the UK ("Tooks barristers") for a right of audience to assist the plaintiffs ("the application") - The plaintiffs claimed to be impecunious and unable to prosecute the case without substantial pro bono assistance, which the Took barristers had agreed to provide - All parties consented to the Alberta Law Society's intervening on the application - However, a preliminary issue arose as to whether the defendants also had standing to make submissions - A chambers judge held that they did - The plaintiffs appealed - The Alberta Court of Appeal emphatically rejected the notion that the opposite party had no legitimate interest in who the proposed advocate was - The court stated that "Of course if he or she is a lawyer in good standing, no objection will prevail, given s. 102(2) of the Legal Profession Act. But if it is not clear that he or she is such a lawyer, then the opposing party must be heard, under the rules of natural justice." - See paragraphs 38 to 40.

Statutes - Topic 6257

Operation and effect - Effect on earlier statutes - Contrariety or conflict between statutes - Conflict between a statute and a regulation or rule made under another statute - [See first Courts - Topic 2004 ].

Cases Noticed:

McKenzie v. McKenzie, [1970] 3 All E.R. 1034 (C.A.), refd to. [para. 8].

J.N.C.-M., Re (2011), 374 Sask.R. 143 (Fam. Div.), refd to. [para. 8].

Trifidus Inc. v. Samgo Innovations Inc. et al. (2011), 375 N.B.R.(2d) 141; 969 A.P.R. 141; 2011 CarswellNB 352; 2011 NBCA 59, refd to. [para. 8].

Hodge v. R. (1883), 9 App. Cas. 117; 53 L.J.P.C. 1, refd to. [para. 11].

Fortin v. Chretien - see Fortin v. Barreau du Quebec.

Fortin v. Barreau du Quebec, [2001] 2 S.C.R. 500; 272 N.R. 359; 2001 SCC 45, refd to. [para. 17].

Law Society of Alberta v. North American Escrow Inc. et al. (1998), 212 A.R. 222; 168 W.A.C. 222; 58 Alta. L.R.(3d) 273, refd to. [para. 19].

R. v. Nicholson (1979), 14 A.R. 450; 96 D.L.R.(3d) 693 (C.A.), refd to. [para. 22].

Purba v. Ryan (2006), 397 A.R. 251; 384 W.A.C. 251; 2006 ABCA 229, refd to. [para. 35].

Baxter Student Housing v. College Housing Co-op. - see College Housing Co-operative Ltd. and College Housing Inc. v. Baxter Student Housing Ltd. and R.C. Baxter Ltd.

College Housing Co-operative Ltd. and College Housing Inc. v. Baxter Student Housing Ltd. and R.C. Baxter Ltd., [1976] 2 S.C.R. 475; 5 N.R. 515, refd to. [para. 35].

Glover v. Glover (#1) - see Glover v. Minister of National Revenue.

Glover v. Minister of National Revenue (1980), 29 O.R.(2d) 392 (C.A.), affd. [1981] 2 S.C.R. 561; 43 N.R. 271, refd to. [para. 35].

Hartley v. Matson (1901), 32 S.C.R. 575, refd to. [para. 35].

Barclay & Barclay, Re, [1922] 1 W.W.R. 52 (Alta. C.A.), refd to. [para. 35].

Montgomery v. Peters (1957), 22 W.W.R. 188 (Alta. C.A.), refd to. [para. 35].

J.U. v. Regional Director of Child Welfare (Alta.) et al. (2001), 281 A.R. 396; 248 W.A.C. 396; 2001 ABCA 125, leave to appeal denied (2001), 283 N.R. 398; 299 A.R. 305; 266 W.A.C. 305 (C.A.), refd to. [para. 35].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 35].

Hansraj v. Ao et al. (2004), 354 A.R. 91; 329 W.A.C. 91; 2004 ABCA 223, refd to. [para. 35].

McWilliams (Anthony M.) Designs Ltd. v. Fowler (2004), 357 A.R. 284; 334 W.A.C. 284; 2004 ABCA 370, refd to. [para. 35].

Wilbur v. Foothills Hospital et al. (2005), 367 A.R. 191; 346 W.A.C. 191; 2005 ABCA 220, refd to. [para. 35].

R. v. Harness (G.J.) (2005), 367 A.R. 259; 346 W.A.C. 259; 2005 ABCA 245, refd to. [para. 35].

R. v. Stagg, 2011 MBQB 294, refd to. [para. 37].

R. v. Crooks (M.A.) (2011), 510 A.R. 364; 527 W.A.C. 364; 2011 ABCA 239, refd to. [para. 37].

783783 Alberta Ltd. v. Canada (Attorney General) et al. (2010), 482 A.R. 136; 490 W.A.C. 136; 2010 ABCA 226, refd to. [para. 39].

Echo Valley Farms Inc. v. Alberta et al. (1998), 235 A.R. 394; 1998 ABQB 561, refd to. [para. 39].

Boyle, Re - see Turkawski et al. v. 738675 Alberta Ltd. et al.

Turkawski et al. v. 738675 Alberta Ltd. et al. (2006), 401 A.R. 155; 391 W.A.C. 155; 2006 ABCA 409, refd to. [para. 39].

S.N. v. Alberta et al. (2006), 396 A.R. 7; 2006 ABQB 115, refd to. [para. 48].

Canada Southern Petroleum Ltd. et al. v. Amoco Canada Petroleum Co. et al., [1997] 5 W.W.R. 395; 195 A.R. 1 (Q.B.), affd. (1993), 193 A.R. 273; 135 W.A.C. 273; 144 D.L.R.(4th) 30 (C.A.), leave to appeal denied (1997), 216 N.R. 159; 212 A.R. 24; 168 W.A.C. 24 (S.C.C.), refd to. [para. 48].

Kaboni v. Domes (1994), 150 A.R. 161 (Q.B. Master), refd to. [para. 48].

Beach v. Toronto Real Estate Board, [2010] O.T.C. Uned. 30001; 97 C.P.C.(6th) 127; 2010 ONSC 30001, refd to. [para. 48].

Watts Estate et al. v. Contact Canada Tourism Services Ltd. et al. (1998), 212 A.R. 207; 168 W.A.C. 207 (C.A.), refd to. [para. 50].

Mikisew Cree First Nation v. Canada et al. (2002), 303 A.R. 43; 273 W.A.C. 43; 2002 ABCA 110; 2002 ABCA 150, refd to. [para. 50].

Korte et al. v. Cormie et al. (1996), 178 A.R. 209; 110 W.A.C. 209; 36 Alta. L.R.(3d) 56 (C.A.), refd to. [para. 57].

Gienow Building Products Ltd. v. Tremco Inc. et al. (2000), 255 A.R. 273; 220 W.A.C. 273; 2000 ABCA 105, refd to. [para. 57].

Canadian Engineering and Surveys (Yukon) Ltd. v. Banque Nationale de Paris (Canada) (1996), 196 A.R. 1; 141 W.A.C. 1 (C.A.), refd to. [para. 57].

Statutes Noticed:

Legal Profession Act, R.S.A. 2000, c. L-8, sect. 102(1), sect. 106(1) [para. 7].

Rules of Court (Alta.), 2010, rule 2.23 [para. 6].

Counsel:

E.J. Woodward, Q.C., and P.M. Hutchings, for the appellants;

E.L. Bunnell, Q.C., and D.B. Titosky, for the respondent, Her Majesty the Queen in Right of the Province of Alberta;

K.A. Kohlman and S. Bhasin, for the respondent, Attorney General of Canada;

M.F. Naber-Sykes, for the intervenor, Law Society of Alberta.

This appeal was heard on January 9, 2012, by Côté and Rowbotham, JJ.A., and Read, J.(ad hoc), of the Alberta Court of Appeal. Côté, J.A., delivered the following decision for the court on March 1, 2012.