Words and Phrases - "appear in person"

Two individuals and two corporations of which they were shareholders brought motions to be represented by a non-lawyer who was not an officer or employee of the corporations (the “CPA”). After finding that, as the CPA was an agent and not counsel, Rule 30(1) did not give the Court discretion to allow the CPA to represent the two individuals, Graham J went on to find that Rule 30(2) could not be used to authorize the CPA to represent the two corporations, stating (at paras 9, 11, 12):

…[T]he Rules may not override the Act. …

…[S]ubsection 17.1(1) gives parties two choices. Parties may appear in person or be represented by counsel. …

The words “in person” mean “physically present”. A human can be physically present in court. A corporation, being a creation of law with no physical substance, cannot.

Graham J further stated (at paras 18, 19, 23 - 25):

A historical contextual analysis of subsection 17.1(1) supports the traditional common law interpretation. There have been three versions of Rule 30(2). The original version was created at the same time as the Act and required corporations to be represented by counsel. It read:

Except as expressly provided by or under any enactment, a body corporate may not begin or carry on a proceeding otherwise than by counsel. [Emphasis added]

Rule 30(2) was amended in 1993 to allow corporations to be represented by an officer with leave of the Court in special circumstances. …

If I interpret subsection 17.1(1) as only allowing corporations to be represented by counsel, then the original version of Rule 30(2) exactly paralleled subsection 17.1(1) and was intra vires. However, both the 1993 and current versions of Rule 30(2) would be ultra vires… because… [b]oth of these provisions allow representation in a manner inconsistent with a requirement in subsection 17.1(1) that corporations be represented by counsel.

By contrast, if I interpret subsection 17.1(1) as allowing corporations to appear in person or be represented by counsel, all three versions of Rule 30(2) would be ultra vires as they would unduly restrict a corporation’s ability to appear in person. …

…[T]he Court was created at the same time that the Rules came into effect. … [I]it is far more likely that the original version of Rule 30(2) paralleled subsection 17.1(1) than that it violated it. It appears that, when the 1993 amendment was made, the fact that Rule 30(2) could not be changed without first amending subsection 17.1(1) was overlooked. A similar error appears to have occurred in 2007.

Graham J concluded (at paras 42, 48):

I conclude that subsection 17.1(1) does not allow a corporation to appear in person. In the general procedure, the only option available to a corporation is to be represented by counsel. Accordingly, until such time as subsection 17.1(1) is repealed or amended, Rule 30(2) should be read down to read:

Where a party to a proceeding is not an individual, that party shall be represented by counsel.

In the alternative, if I am wrong, and corporations are able to appear in person, I would still deny the Corporate Appellants’ motions. … . I am not aware of any interpretation of subsection 17.1(1) by which a corporation could be said to appear in person through its external accountant.