Date:
20111209
Docket:
A-373-11
Citation: 2011 FCA 345
Present: PELLETIER
J.A.
BETWEEN:
TPG
TECHNOLOGY CONSULTING LTD.
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR ORDER
PELLETIER
J.A.
[1]
The
Court has before it a number of Notices of Motion, specifically:
1- A motion by
the appellant, represented by Gowling Lafleur Henderson LLP, for an order
settling the contents of the appeal book.
2- A motion by
Gowling Lafleur Henderson LLP to be removed as counsel of record and requesting
an extension of time to serve and file the agreement as to contents of the
appeal book.
3- A motion by
the appellant TPG Technology Consulting Ltd. for an order pursuant to Rule 120
of the Federal Courts Rules allowing Mr. Donald Powell to represent it on this
appeal together with a request for an oral hearing of the motion.
[2]
While
this is not the order in which these motions were filed in the Registry, it is
more convenient to deal with them in this order so that the matters raised by
Gowling Lafleur Henderson LLP can be dealt with before they are removed as
counsel of record.
[3]
The
parties are in agreement as to the contents of the appeal book, as evidenced by
their respective memoranda. There will therefore be an order settling the
contents of the appeal book as set out in the Index to the Appellant’s reply to
the motion to settle the contents of the appeal book.
[4]
The
request for an extension of time to file the agreement as to the contents of
the appeal book will be treated as an extension of time to bring a motion for
an order settling the contents of the appeal book. In the particular
circumstances of this case, the motion for an extension of time is granted.
[5]
The
motion for an order removing Gowling Henderson Lafleur LLP as solicitors of
record is granted.
[6]
The
last matter to be dealt with is the motion seeking leave to have Donald Powell
act as the representative of the appellant, a corporation. Mr. Powell asks that
this motion be heard orally.
[7]
While
the Rules provide that motions will only be dealt with in writing under Rule
369 upon request, the long-standing practice of the Federal Court of Appeal is
that motions are dealt with in writing unless the Court orders otherwise. This
practice arises from the small number of judges on the Federal Court of Appeal
and the economies inherent in dealing with motions in writing rather than
orally. Having read the material submitted in support of the motion to
authorize Mr. Powell to act as the appellant’s representative, I do not find
that there are any special circumstances which would justify an oral hearing. The
Court is able to adequately deal with the motion on the basis of the written
material. The request for an oral hearing of the motion is denied.
[8]
The
general rule is that corporations must be represented by solicitor: see Rule
120, Federal Courts Rules, SOR/98-106, and (the Rules). There could be
many reasons for such a rule but one which is particularly compelling is that
those who have received the benefits of incorporation in the form of tax
planning opportunities, immunity from liability in tort etc. should also bear
the costs of incorporation, one of which is that the corporation must be
represented before the courts by a solicitor. This is particularly so in a case
where the corporation is the plaintiff. Where a corporation is sued, it has
little to say about whether it will be involved in litigation and incur the
costs associated with litigation. But where the corporation is the plaintiff,
it has made a conscious choice to embark upon litigation, a decision which will
force the defendants in its action to incur legal costs defending themselves. It
is only reasonable that the corporate plaintiff should not lightly be able to
avoid incurring those costs itself.
[9]
Rule
120 provides that “in special circumstances”, the Court may authorize an
officer of a corporation to represent the corporation for purposes of litigation.
“Special circumstances” have been held to include the proven inability to pay
for counsel: see S.A.R. Group Relocation Inc. Canada (Attorney
General),
2002 FCA 99, [2002] F.C.J. No. 367. The onus is on the party pleading
impecuniosity to put evidence of his/her circumstances before the Court. That
has not been done here. In fact, the appellant has not even alleged
impecuniosity.
[10]
I
might add that, in the case of corporations, impecuniosity is a double-edged
sword. Rule 416 provides that where the plaintiff is a corporation and there is
reason to believe that it would have insufficient assets to pay the defendant’s
costs if ordered to do so, the corporation may be ordered to give security for
costs. As a result, a corporation should consider its position carefully before
pleading that it should be relieved of the obligation of being represented by a
solicitor.
[11]
Since
no special circumstances have been shown, I would dismiss the motion to
authorize Mr. Powell to act as the appellant’s representative.
"J.D. Denis
Pelletier"
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