Date: 20000623
Docket: IMM-1221-00
Between:
SURINDER SINGH SIDHU,
Plaintiff,
- and -
THE MINISTER OF IMMIGRATION
AND CITIZENSHIP,
Defendant.
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] The defendant is appealing from an order by the prothonotary Morneau which dismissed his motion asking the Court to dismiss an application for leave and judicial review on the ground that the person acting on the plaintiff's behalf was not qualified to represent him.
[2] This appeal deals in particular with decisions in two cases1 which themselves embrace other cases.2 Since the problem raised by the defendant was the same in each of the cases, although the plaintiff's "representative" varied in some of them, the prothonotary only rendered two decisions, the reasons to apply in the other cases mutatis mutandis. On appeal, the substantive arguments were the same in all the cases, though each one varied somewhat as to the facts. I therefore intend to deal first with the point of substance: I will analyse in each particular case the facts peculiar to it.
[3] A summary of the general facts is needed. Alleging that he was dealing with an endemic problem in the field of immigration on account of the illegal practice of individuals who prepared and drafted pleadings in this Court without being barristers or advocates,3 the defendant filed a motion in each case to dismiss these applications for leave and for judicial review. Inter alia, he argued that this approach was contrary to s. 11 of the Federal Court Act ("the Act") and Rule 119 of the Federal Court Rules (1998) ("the Rules").The defendant's motion was dismissed in case IMM-1320-00 in terms which it is worth reproducing:
| [3] Clearly, the Court could not approve of non-lawyers performing activities reserved exclusively for members of the bar. However, even though this may have actually occurred in these files, and although the applicant in every file but this one failed to respond to the respondent's motion, I am not satisfied that the evidence leads to a clear and definite finding that in every file, activities reserved for lawyers were carried out by non-lawyers, or that the applicants cannot be regarded as representing themselves. The respondent has pointed out only some possible signs of such activity. It does not appear that the respondent questioned any interested party in any of the files in order to support her position. Nor does it appear from the files that the respondent informed the authorities responsible for sanctioning unauthorized professional practice about the situation. |
| [4] Furthermore, even if I were satisfied that unauthorized professional practice is evident from the files, I am not persuaded that the remedy to be granted against the applicants - themselves victims in some way of this illegal representation - would be to dismiss their Application. In light of my finding with respect to the respondent's evidence, I do not need to consider what would be the appropriate remedy or order other than dismissing the Application. The respondent has not suggested any such alternative. |
| [5] The respondent's motion will therefore be dismissed without costs. |
In cases IMM-1303-00 and IMM-1304-00, the prothonotary recognized that counsel for the plaintiff was no longer on the list of the Ordre du Barreau, but he added:
| However, I am not convinced that the remedy to be granted by this Court should be to strike out the application. This remedy would appear to the applicants to be harsh to resolve the situation which is most likely unknown to them. |
[4] In short, though disapproving the fact that the individuals acted as counsel without being so, the prothonotary considered that there was insufficient indication that the plaintiff had acted alone or through unqualified persons. He further suggested that the defendant could have proceeded differently and, in any case, the remedy sought was too drastic compared to the "fault" committed.
[5] I consider that the prothonotary was quite right to say that the Court clearly cannot approve third parties who are not lawyers performing activities reserved exclusively for members of the Bar; and his approach of requiring definite evidence that there were persons acting improperly on behalf of another, and especially his hesitation in dismissing an application for leave on this ground, result from a natural impulse of goodwill and can only be encouraged.
[6] However, although the penalty may be harsh - dismissal of the application for leave - I still consider that the appeal should be allowed and the applications for leave dismissed.
[7] It is the Court's function and duty to ensure that its Act and its Rules are observed and that those who appear before it or prepare pleadings to be used in asserting rights are officers of the Court (ss. 11(1) and (3) of the Act and 119 of the Rules4). In the case at bar, the Court considers that the prothonotary's discretionary authority was exercised on the basis of a too narrow assessment of the defendant's evidence. The facts entered in evidence in each of the defendant's motions were much more than indications and should have inexorably led to the conclusion that in each case the plaintiff's application for leave and judicial review had been prepared and drafted by an agent who could not act in this Court as his representative. It is true that under Rule 119 a plaintiff may act in person, but if he decides to be represented then the rule is clear, he must be represented by a barrister or advocate. I also recognize that it is not the defendant's function to ensure compliance with the Act respecting the Bar: the professional body representing counsel is authorized to do that. However, I feel it is part of his duty as an officer of the Court to notify the Court of such a flagrant breach of its rules.
[8] In the case at bar, IMM-1221-00, the application for leave and judicial review was signed by the plaintiff himself, without giving his address. However, it appears from the back of his application that he is represented by M. Gauthier, B.A., M.B.A., 1405 Bishop, Suite 100, Montréal, Quebec. Two affidavits filed by the defendant indicate, first, that this is not a residence address but the place of business of M. Gauthier, who works there as a consultant, and second, that Mireille Gauthier's name appears in a series of 14 applications for leave though she is not a member of the Quebec Bar.
[9] I note that the defendant's initial motion could be served at the address the defendant had in his file for the plaintiff, but service at the address indicated in his application for leave, 1405 Bishop, Suite 100, Montréal, was not possible as according to the minutes of the officiating bailiff Ms. Gauthier no longer had an office at that address after April 30, 2000.
[10] I conclude from this that Mireille Gauthier represented the plaintiff, but she was not authorized to do so in this Court and that accordingly the application for leave must be dismissed.
[11] For these reasons, the Court allows the defendant's appeal and dismisses the plaintiff's application for leave and application for judicial review.
ORDER
The defendant's appeal from the decision of the Prothonotary R. Morneau on April 27, 2000 is allowed and the plaintiff's application for leave and for judicial review is accordingly dismissed.
Ottawa, Ontario
June 23, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1221-00
STYLE OF CAUSE: SURINDER SINGH SIDHU v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 15, 2000
REASONS FOR ORDER AND ORDER BY: DENAULT J.
DATED: June 23, 2000
APPEARANCE:
No one FOR THE APPLICANT
Daniel Latulippe FOR THE DEFENDANT
SOLICITORS OF RECORD:
Surinder Singh Sidhu (plaintiff) FOR THE APPLICANT
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
__________________
1 IMM-1303-00 and IMM-1320-00.
2 The decision in IMM-1303-00 also applied to IMM-1304-00, and that in IMM-1320-00 also applied to IMM-1219-00, IMM-1220-00, IMM-1221-00, IMM-1237-00 and IMM-1232-00.
3 In cases IMM-1303-00 and IMM-1304-00, the plaintiffs' representative was no longer a lawyer because he had failed to pay his dues and was therefore no longer listed by the Quebec Ordre du Barreau.
4 11.(1) Barrister or advocate - Every person who is a barrister or advocate in a province may practise as a barrister or advocate in the Court. (2) . . . (3) To be officers of the Court - Every person who may practise as a barrister, advocate, attorney or solicitor in the Court is an officer of the Court.
119. Individuals - Subject to rule 121, an individual may act in person or be represented by a solicitor in a proceeding. . . . . . . . . .
11.(1) Avocats - Les avocats qui exercent dans une province peuvent agir à titre d'avocats à la Cour. (2) . . . (3) Qualité de fonctionnaire judiciaire - Quiconque peut exercer à titre d'avocat ou de procureur à la Cour en est fonctionnaire judiciaire.
119. Personne physique - Sous réserve de la règle 121, une personne physique peut agir seule ou se faire représenter par un avocat dans toute instance.
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