Date: 20040811
Docket: T-968-04
Citation: 2004 FC 1103
Ottawa, Ontario, this 11th day of August, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MINISTER OF LABOUR
Applicant
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GEORGE SMITH TRUCKING LIMITED, FLORENCE SMITH,
GEORGE SMITH and NICK TALAGA
Respondents
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by George Smith for an order allowing George Smith, a non-lawyer, to represent the defendant, George Smith Trucking Limited.
[2] The matter before the Court is a show cause hearing pursuant to Rule 467 of the Federal Court Rules, 1998.
[3] The motion stated the reason for wanting George Smith to represent the company is that George Smith and George Smith Trucking Limited are one and the same.
[4] The affidavit of George Smith states that George Smith is authorized to appear on behalf of George Smith Trucking Limited.
[5] Issue
Should an order issue allowing George Smith to represent or act on behalf of George Smith Trucking Limited?
[6] Rule 120 of the Federal Court Rules, 1998 states:
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120. A corporation, partnership or unincorporated association shall be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave to it to be represented by an officer, partner or member, as the case may be.
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120. Une personne morale, une société de personnes ou une association sans personnalité morale se fait représenter par un avocat dans toute instance, à moins que la Cour, à cause de circonstances particulières, ne l'autorise à se faire représenter par un de ses dirigeants, associés ou membres, selon le cas.
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[7] In Source Seville Corp. v. Source Personnel Inc. [1995] F.C.J. No. 1658 (Q.L.) (FCTD) Rouleau J. when speaking of former Rule 300(2) of the Federal Court Rules stated at paragraphs 4, 5, 6, 7 and 8:
_ 4 Firstly, the onus of "special circumstances" imposed by Rule 300(2) of the Federal Court Rules is a high onus which requires that clear and unambiguous evidence be before the Court before it will exercise its discretion to grant an exception to the general rule that a corporation shall be represented by a barrister and solicitor. The evidence filed by the Defendant did not meet this high threshold.
_ 5 Secondly, the test of "special circumstances" means circumstances that are unusual, uncommon and exceptional and the result of external forces as distinct from the voluntary acts of the Defendant. There was no evidence of "special circumstances" filed by the Defendant.
_ 6 Thirdly, the two essential pre-conditions, namely (1) that Mr. Kichuk was authorized by the corporation to represent it; and (2) that the corporation was impecunious; were not met by the evidence filed by the Defendant.
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_ 8 Lastly, to establish "impecuniosity", the Defendant was required to show not only that it did not have sufficient assets itself, but also that it could not raise the necessary funds from its shareholders. There was no evidence before the Court concerning the impecuniosity of the Defendant's shareholders.
The current Rule 120 also calls for special circumstances.
[8] Justice Strayer of the Federal Court of Appeal dealt with a request by a corporate defendant seeking to have the president represent it instead of a lawyer, in S.A.R. Gump Relocation Inc. et. al v. Canada (Attorney General) (2002) 289 N.R. 163 (F.C.A.). Strayer J. A. stated at page 164:
The ground for seeking such an order is that the applicants can no longer afford to hire a lawyer to represent them.
For the court to make such an order in these circumstances it must be satisfied that the corporations are truly unable to pay for a lawyer and that the person sought to be allowed to represent them has indeed been authorized by the corporations to represent them. (Source Services Corp. v. Source Personal Inc. (1995), 96 F.T.R. 161 (T.D.)). There is no clear evidence here on either point. Further, it is relevant to consider whether the proposed representative would also be a witness, as counsel cannot appear in cases where they are witnesses. (See Kobetek Systems Ltd. v. Canada, [1998] F.T.R. Uned. 9; [1998] 1 C.T.C. 308). In the present application for judicial review Susan A. Ryan has filed a purported affidavit (not yet sworn) which indicates she expects to be the principal witness as well as acting in role of counsel. This is another circumstance which militates against the court making an order under Rule 120.
The motion will therefore be dismissed without costs.
[9] The case law of this Court establishes that there must be clear evidence presented by the applicant in order to persuade the Court to exercise its discretion and grant an exemption to allow George Smith to represent the corporate defendant, George Smith Trucking Limited. The affidavit evidence states only that George Smith is authorized to appear on behalf of the corporate defendant. I am satisfied that George Smith is authorized by the corporate defendant to represent it.
[10] The applicant has not presented evidence of special circumstances. There is no evidence which would allow me to grant the motion for an order allowing George Smith to represent the corporate defendant.
[11] The motion is therefore dismissed.
[12] There shall be no order as to costs of the motion.
ORDER
[13] IT IS ORDERED that the motion for an order to have George Smith represent the corporate defendant is dismissed.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
August 11, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-968-04
STYLE OF CAUSE: MINISTER OF LABOUR
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GEORGE SMITH TRUCKING LIMITED,
FLORENCE SMITH, GEORGE SMITH and
NICK TALAGA
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: July 12, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: August 11, 2004
APPEARANCES:
Duncan Fraser
Jessica Cogan
FOR APPLICANT
George Smith
On His Own Behalf
FOR RESPONDENTS
SOLICITORS OF RECORD:
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR APPLICANT
George Smith
Winnipeg, Manitoba
FOR RESPONDENTS
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