Lameman v. Alberta, 2011 ABQB 396

Court of Queen ’ s Bench of Alberta Citation: Lameman v. Alberta, 2011 ABQB 396 Date: 20110624 Docket: 0803 06718 Registry: Edmonton Between: 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 Applicants (Plaintiffs) - and - 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 _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________

I. Introduction [ 1 ] The Plaintiffs apply on behalf of certain lawyers from Tooks Chambers, UK (the “Tooks barristers”) for a right of audience to assist in the Plaintiffs in their case against Defendants. The Plaintiffs claim to be impecunious and unable to prosecute the case without substantial pro bono assistance. The Tooks barristers have agreed to provide this assistance. [ 2 ] The Defendants brought applications (“Applications to Strike”) pursuant to rule 129 of the Alberta Rules of Court , Alta. Reg. 390/68 (“ Old Rules ”).

The Plaintiffs sought an adjournment of the Applications to Strike, based on their impecuniosity. This Court heard the adjournment application in the fall of 2010 and granted the Plaintiffs their adjournment. This Court’s reasons are reported as, Lameman v. Alberta , 2011 ABQB 40 . [ 3 ] The Plaintiffs first broached with this Court the prospect of retaining the Tooks barristers during their adjournment application.

During that application, the Plaintiffs advised this Court that their request was restricted to obtaining the Tooks barristers’ assistance in the preparation of their briefs, which they would file to challenge the Applications to Strike.

Since then, the Plaintiffs have expanded their request to include Tooks barristers’ assistance in other capacities, including a request for the right of audience, and questioning of witnesses in the absence of Canadian counsel of record. [ 4 ] No one takes exception to Tooks barristers participating “behind the scenes,” such that they would assist the Plaintiffs’ counsel of record in the conduct of research and preparation of briefs, provided any documents that the Plaintiffs place before the court are under the signature of the Plaintiffs’ counsel of record.

However, the Law Society of Alberta (“Law Society”) and the Defendants argue that questioning witnesses and otherwise having a right of audience constitute “practising law.” For the Tooks barristers to undertake the practise of law in this case, they must comply with s. 106 of the Legal Profession Act , R.S.A. 2000, c. L-8 (the “ LPA ”). II. Preliminary Issue [ 5 ] All parties consented to the Law Society's intervention on this application. However, a preliminary issue arose as to whether the Defendants also had standing to make submissions.

The Plaintiffs took the position that they have a right to choose who should represent them, and that they are already “compromised” by the massive asymmetry in resources favouring the Defendants. The Defendants' participation in this application would only interfere with the Plaintiffs' right to choose their own counsel and to seek relief. Further, the Law Society, as an intervenor, ably represents the interests of the Defendants and the public. [ 6 ] The Defendants, as parties to this proceeding, were entitled to notice of this application. Rule 6.3(3) of the Alberta Rules of Court , Alta.

Reg. 124/2010 (“ New Rules ”) provides: 6.3(3) Unless an enactment, the Court or these rules otherwise provide, the applicant must file and serve on all parties and every other person affected by the application , 5 days or more before the application is scheduled to be heard or considered, (

a) notice of the application, and (

b) any affidavit or other evidence in support of the application. [Emphasis added]. Each of the Defendants are “parties” to this proceeding and would be a “person affected”.

[7] The Plaintiffs have given notice of this application to the Defendants. The purpose of New Rules r. 6.3(3) is to provide theDefendants, as parties and affected parties, an opportunity to respond. Fundamental justice requires this, as illustrated by Echo ValleyFarms Inc. v. Alberta, 1998 ABQB 561, where Justice Veit said: 6 Principles of fundamental justice require that the court hear from all parties before making decisions. An icon of justice depictsthe blindfolded goddess holding a scale; she weighs both claims; she does not just assess one party's position.

See also Children's Aid Society of Metropolitan Toronto v. Lyttle, (SCC), [1973] S.C.R. 568 at 575. [8] If this Court were to require the Plaintiffs to give notice of the application to the Defendants, but not permit the Defendantsto make submissions on the substance of the application, this would, in essence, permit the Plaintiffs to proceed with this application onan ex parte basis.

Granted, this Court, without the parties’ objection, has granted the Law Society intervenor status, but the LawSociety’s position is very narrow; it deals only with the broader public policy issue of whether this Court would be circumventing thelegislation and rules governing the control of lawyers and their practice in this province. The Law Society does not deal with the issuesthat the parties face inter partes. [9] What are the issues that the parties face inter partes?

At the outset, it must be noted that this Court is passing no judgmenton the legal abilities of the Tooks barristers, which appear to be beyond reproach. This Court will address the arguments that the LawSociety makes in the next

section of these reasons. However, for the purposes of this discussion, the Tooks barristers are not legally-trained in Canada and they have no training or expertise in Canadian aboriginal law or Canadian constitutional law, which are at the heartof the Applications to Strike. Furthermore, they lack familiarity with the New Rules. All this could increase the costs of this litigation andfurther delay a process that has already been delayed, despite this Court’s best efforts to case manage this matter through to trial. This isnot in keeping with the New Rules r. 1.2.

This Court's attempts to move this matter forward is in keeping with the New Rules, and thelegislation and rules governing the control of lawyers and their practice in this province, see Balogun v. Pandher, 2009 ABCA 409 atpara. 16; R. v. Nicholson, 1979 CarswellAlta 91 (Sup. Ct. App. Div.) at para. 32; Hoff v. Gerk, 1999 ABQB 744 at para. 56. Although itwas dealing with the concept of ex parte applications on an appeal, the following comments from the Alberta Court of Appeal in In ReBoyle (Bankrupt), 2006 ABCA 409 at paras. 26 and 30 are apposite: 26 ...

It is always understood that the parties to an Alberta appeal include the putative parties, or those who would be parties if theresult of the appeal went one way. In other words, it includes those who would have rights if they won, because they have an interest indefending their alleged rights. A plaintiff or an appellant joins someone as a defendant or respondent because that other person claims tohave substantive rights. To omit him or her because one denies his or her substantive rights is almost backward.

The plaintiff or appellantvery often denies that his opponents have any rights at all; that is the point of the litigation. … 30 …The first rule of natural justice is to give notice and to rule against no one unheard... [10] Despite the Plaintiffs’ arguments, this Court permitted the Defendants to make submissions on the issues before this Court onthis application.

Any order that this Court grants will have an impact on the Defendants or the way in which they manage their cases. [11] Practically, it turned out that the Law Society dealt with most, if not all, of the same ground that the Defendants intended tocover, as reflected in their written briefs. Accordingly, in the end, the Plaintiffs cannot be heard to complain about this Court’s ruling onthis issue. III.

Background [12] The Plaintiffs claim that the federal and provincial Crowns have infringed their treaty rights by taking up so much of theirtraditional territory that no meaningful right to hunt, trap or fish remains.

[ 13 ] Garry Benson, instructing counsel for the Plaintiffs, in his affidavit that he affirmed on November 3, 2010, deposes that the Beaver Lake Cree Nation does not have sufficient funds to cover the cost of completing this litigation. Gerald Whitford, administrator for the Beaver Lake Cree Nation, in the affidavit he affirmed on October 5, 2010, deposes that Beaver Lake Cree Nation: (

a) has very little discretionary funding; (

b) the costs for appropriately and adequately presenting an argument in response to the Applications to Strike would amount to around $100,000; and (

c) this cost would put considerable strain on Beaver Lake Cree Nation's community education, health, social and cultural programs. [ 14 ] Tooks barristers have offered to provide services on a purely voluntary and completely pro bono basis, as indicated in an exhibit attached to Garry Benson’s affidavit. All of the lawyers in question are trained as barristers in England, have been called to the bar of England and Wales, and are experienced. None is a member of the Law Society. IV.

Legislation and Rules [ 15 ] LPA ss.102(2) and 106 provide: 102(2) Active members are officers of the Court of Queen’s Bench and all other courts of record in Alberta and have a right of audience in those courts. 106(1) No person shall, unless the person is an active member of the Society, (

a) practise as a barrister or as a solicitor, (

b) act as a barrister or as a solicitor in any Court of civil or criminal jurisdiction, (

c) commence, carry on or defend any action or proceeding before a Court or judge on behalf of any other person, or (

d) settle or negotiate in any way for the settlement of any claim for loss or damage founded in tort. [ 16 ] New Rules rr. 1.2(1)(

b) and 2.23 provide: Purpose and intention of these rules 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used... (

b) to facilitate the quickest means of resolving a claim at the least expense ... ... Assistance before the Court 2.23(1) The Court may permit a person to assist a party before the Court in any manner and on any terms and conditions the Court considers appropriate.

(2) Without limiting subrule (1), assistance may take the form of (

a) quiet suggestions, (

b) note-taking, (

c) support, or (

d) addressing the particular needs of a party.

(3) Despite subrule (1), no assistance may be permitted (

a) that would contravene section 106(1) of the Legal Profession Act , (

b) if the assistance would or might be disruptive, or (

c) if the assistance would not meet the purpose and intention of these rules. [ 17 ] The Information Note for New Rules r. 2.23 states: Under section 106(1) of the Legal Profession Act assistance permitted by this rule must fall short of "acting as a barrister or solicitor" or "commencing, carrying on or defending an action or proceeding before a Court or judge on behalf of another person". [ 18 ] Old Rules r. 5.4 provided: 5.4 With the permission of the Court, a person may be represented before the Court by an agent other than a solicitor.

V. Plaintiffs’ Position [19] The Plaintiffs concede that Tooks barristers are not permitted to practise law in Alberta within the meaning of LPA s. 106.However, they submit that they do not seek the permission of the Court for Tooks barristers to practise law in Alberta. The Plaintiffs’written brief that they filed on May 13, 2011, in support of this application gives a clearer sense of what they are seeking.

The writtenbrief says: 30 The Plaintiffs respectfully request that this Court grant the Agents a right of audience to permit the Agents to address the Court asrepresentatives, agents and advocates on behalf of the Plaintiffs ... 31 More specifically, the Plaintiffs submit that the Agents be granted a right of audience subject to such conditions or arrangementsas deemed appropriate by this Court.

The order will allow them to appear as advocates on behalf of the Plaintiffs, to examine witnesses,and to make submissions on the law and facts, under the direction and approval of Alberta Lawyers who are lawfully instructed by thePlaintiffs. The Agents will also be able to assist the Alberta Lawyers with legal research and the drafting of legal submissions whennecessary. “Agents” are Tooks barristers. [20] The Plaintiffs argue that this proposed arrangement does not contravene LSA s. 106(1) because: (

a) the Plaintiffs will instruct, at all times, Alberta lawyers until the conclusion of the case, and the Alberta lawyers will direct,control and supervise Tooks barristers’ work; (

b) Tooks barristers will only be assisting the Plaintiffs, so they will not be practising law in Alberta; they will not execute pleadings,swear affidavits, make admissions or give undertakings, and they are not expecting a fee; and (

c) by having Alberta lawyers overseeing Tooks barristers at all times, public policy concerns are addressed since the Albertalawyers are accountable to the Plaintiffs, the court and the Law Society. [21] The Plaintiffs argue that despite the wording of LSA s. 106, this Court has inherent jurisdiction to allow Tooks barristers sucha right of audience before this Court, relying heavily on the obiter dicta of Justice O’Leary, as he then was, in Professional Sign Crafters(1988) Ltd. v. Wedekind, (AB KB), [1994] 7 W.W.R. 137, [1994] A.J. No. 343 (Q.B.).

Professional Sign Craftersconcerned the predecessor of LSA s. 106 (LSA s. 103) and of New Rules r. 2.23 (Old Rules r. 5.4). They argue that New Rules r. 2.23(1) isdrafted more widely than its predecessor Old Rules r. 5.4, which was limited to representation before the court by an agent other than asolicitor. New Rules r. 2.23(1) permits a person to “assist” the court in any manner and on any terms and conditions the court considersappropriate.

New Rules r. 2.23(2) does not prevent the exercise of discretion to permit advocacy as set out in New Rules r. 2.23(1).Whereas New Rules r. 2.22 is headed “Self-represented litigants,” New Rules r. 2.23 is headed “Assistance before the Court,” andtherefore New Rules r. 2.23 is not restricted to self-represented litigants. [22] Furthermore, the Plaintiffs argue that when this Court is determining whether it should exercise its inherent jurisdiction, itshould take into account that: (

a) the Court will not be inconvenienced, given the expertise of Tooks barristers; (

b) the action concerns the Plaintiffs’ important constitutional rights against the governments of Canada and Alberta;

(

c) the Defendants have abundant resources to defend the litigation as contrasted with the Plaintiffs who are in financial difficulty; and (

d) the proposed arrangement helps to address the inherent inequality between the parties caused by the Plaintiffs' limited resources, because Tooks barristers are offering their services on a pro bono basis and seek only assistance with travel and accommodation as provided by a charitable trust. [ 23 ] Finally, the Plaintiffs argue that if this Court were to allow their application, it would promote a timely and cost-effective resolution of the claim, as encouraged by New Rules r. 1.2. This Court could address any lingering concerns through conditions or arrangements, as it deems appropriate. VI.

Law Society’s Position [ 24 ] The Law Society argues that LPA s. 102 does not grant a right of audience to Tooks barristers who are not members of the Law Society. As well, New Rules r. 2.23 does not extend to represented litigants. Further, if this Court has a residual jurisdiction in relation to represented litigants, then this is not an appropriate case for it to exercise its inherent jurisdiction to grant Tooks barristers a right of audience.

The Plaintiffs are represented and have counsel of record, and if this Court were to grant the Plaintiffs’ application, this would require the Court to usurp the regulatory role of the Law Society and would allow Tooks barristers to do indirectly what they are prohibited by LPA s. 106 from doing directly. [ 25 ] The Law Society concedes that Woodward & Company (“Woodco”) may assign to support personnel tasks that those persons are competent to perform:

Chapter 2, Rule 4 of the Alberta Code of Professional Conduct ( CPC ). Woodco would be accountable to the Plaintiffs for the research and writing assistance which it accepts from persons who are not members of the Law Society (the “non-members”). However, Woodco may not delegate any exercise of professional judgment, approval of legal documents, or advice on the merits of the case to a non-member: CPC Commentary to

Chapter 2, Rule 4. [ 26 ] The LPA and this Court's inherent jurisdiction govern and define the right of audience before the court. The New Rules govern and define a non-member's ability to assist a litigant before the court. The Law Society argues that New Rules r. 2.23 applies only where the party before the court is unrepresented.

Therefore, the sole basis on which the Plaintiffs may ask this Court's permission for an audience for Tooks barristers is this Court's inherent jurisdiction to grant a right of audience beyond that contemplated by the LPA . [ 27 ] The Law Society submits that this is not an appropriate case for this Court to exercise its inherent jurisdiction to grant a right of audience to Tooks barristers.

Woodco represents the Plaintiffs, and allowing Tooks barristers to address the Court as representatives, agents and advocates on behalf of the Plaintiffs would confer on Tooks barristers the rights the LPA accords members of the Law Society of Alberta under LPA ss. 102(2) and 106(1) . [ 28 ] The Woodco lawyers, as active members of the Law Society of British Columbia who have not been admitted in Alberta, are "visiting lawyers" as defined by the Rules of the Law Society of Alberta (the “ Rules ”).

The Rules rr. 71 - 73 describe the conditions precedent to any visiting lawyer providing legal services in Alberta, as well as the visiting lawyer’s obligations. By complying with these inter-jurisdictional practice rules, Woodco’s lawyers, who are not members of the Law Society, are entitled to practice law in Alberta, including a right of audience before the court. However, the Tooks barristers are not visiting lawyers within Rules r. 71(1)(

k) nor are they members of the Law Society. Therefore, they do not qualify for the right of audience extended to Alberta lawyers and visiting lawyers by LPA s. 102(1) and are prohibited from carrying out those actions detailed in LPA s. 106. [ 29 ] The Law Society explains that New Rules r. 2.23(1) codifies the decision of the English Court of Appeal in McKenzie v. McKenzie , [1970] 3 All E.R. 1034 (C.A.) and cites the Alberta Law Reform Institute’s Consultation Memorandum No. 12.18 entitled "Self-Represented Litigants" (“CM 12.18").

The Alberta Law Reform Institute considered whether the New Rules should allow litigants to be assisted by a “McKenzie friend” adopting the definition of a McKenzie friend as being a person whom the court allows to assist a self-represented litigant in a hearing so that the self-represented litigant may better present their case (CM 12.18 at 39).

The McKenzie friend’s support may range from a role similar to a legal expert (prompting the litigant to make useful points and representations, and examination of witnesses and giving advice) to the role of sympathetic supporter (who may help by taking notes, or offering comfort or moral support). However, such a person does not take on the role of a lawyer.

[30] The assistance referred to in New Rules r. 2.23 mirrors that suggested in McKenzie: a person may attend as a friend of eitherparty, take notes, quietly make suggestions, and give advice. New Rules r. 2.23(3)(

a) expressly states that the assistance cannotcontravene LPA s. 106, i.e. it cannot be in the nature of acting as a barrister or solicitor. The rationale for allowing a McKenzie friend isfairness to self-represented litigants: R. v. Leicester City Justice; ex parte Barrow, [1991] 3 All E.R. 935, cited in CM 12.18 at 40. [31] The Plaintiffs argue that New Rules r. 2.23(1) is drafted more widely than its predecessor Old Rules r. 5.4. The Law Societyargues that the contrary is true.

Old Rules r. 5.4 dealt with a right of audience, conferring greater rights on a non-lawyer than the morelimited right of assistance permitted by New Rules r. 2.23(1). Old Rules r 5.4 allowed the court to permit a party to be represented beforethe court by an agent other than a solicitor. That right of representation arguably included the right to address the court. New Rules r.2.23(1) permits no such representation, but instead limits the role of a person who is not a member of the Law Society to assisting anunrepresented party in the manner described in New Rules r. 2.23(2).

New Rules r. 2.23(3) specifically refers to LPA s. 106(1), whichprohibits persons who are non-members from acting as barristers and solicitors in any court of civil jurisdiction. [32] The Law Society argues that this is not an appropriate case in which this Court should invoke its inherent jurisdiction to grantaudience to Tooks barristers. In the four cases on which the Plaintiffs rely, viz., Professional Sign Crafters; Rangelander Holdings Ltd.v. Calgary (City) (1997), 1997 ABCA 123 , 196 A.R. 127, [1997] A.J. No. 264 (C.A.); Pacer Enterprises Ltd. v.

Cummings,2004 ABCA 28, 346 A.R. 161; and Balogun, the courts were interpreting the scope of Old Rules r. 5.4 at the request of unrepresentedlitigants, two of whom were corporations seeking representation by one of their directors. Where a party has counsel, there is generallyno need to ask the court to grant a right of audience to someone other than the litigant's counsel. There may be unusual and emergentcircumstances in which this could be necessary, such as where the litigant's counsel is unavailable for an emergency application, bailhearing, or similar interlocutory application.

In those circumstances, a represented litigant may seek assistance to fill the gap caused byits counsel's unavailability. This is not the case here. The Law Society cites Côté J.A. in Law Society of Alberta v. North AmericanEscrow Inc., 1998 ABCA 424, where he says: 11 ... What if someone wishes to practise neurosurgery or plumbing without a license to do so, and a motion for an interlocutoryinjunction is brought to restrain that (thus triggering much the same 3-part test)? Would it be an answer to say that this person has moreneurosurgery or plumbing skills than most people with a license in that field?

No, because (

i) it would turn the courts into an examining body, rather than the more skilled persons selected by the Legislature, and (ii) it would remove all meaning from the concept of leaving the membership of the profession, or losing one's license; it would makeenrolment or licensing irremovable (except maybe by death). VII. Defendants’ Position [33] The Defendants echo the Law Society’s position.

The Defendants also take issue with the Plaintiffs’ evidence of theirfinancial means, the unavailability of other alternatives, the scope of the proposed role of Tooks barristers and the anticipated quality ofthe Tooks barristers advocacy. There are unanswered questions regarding the Tooks barristers’ familiarity with the Rules and the CPC,the extent to which they would or could be bound by the same, and the issue of professional liability insurance that Tooks barristerscarries.

They note that the Plaintiffs’ proposal has evolved over time and the issue of Tooks barristers’ involvement has caused a 10-month delay in hearing the Defendants' Applications to Strike. There is no evidence that the Tooks barristers are unable to follow theusual processes required of lawyers in other jurisdictions to become members of the Law Society, nor that applications for membershipin a Canadian law society would be onerous, too expensive, or otherwise impractical.

The Defendants assert that allowing persons otherthan members of the Law Society to practise law would affect all parties by increasing the cost of litigation.

VIII. Analysis [34] The Alberta Court of Appeal in Pacer Enterprises, held that whether a non-lawyer is practising law is a question of degree.As mentioned earlier, no one takes issue with Tooks barristers providing support to Woodco through research and drafting, providedWoodco, as counsel of record, assumes ultimate responsibility for the work product. [35] Beyond this area of consensus, there was little agreement.

Significant time was spent in oral argument on what constitutes the“practice of law.” It is not the task of this Court to delineate the limits of the practice of law; nor would it be desirable so to do.

The law,as a profession, evolves along with societal needs and desires. [36] However, we are dealing here with represented Plaintiffs proposing to engage trained foreign lawyers who are non-members.This Court finds that the proposed involvement of Tooks barristers, including questioning of witnesses, preparation of argument, andadvocacy before the Court, clearly encompasses matters in respect of which law students receive training and which the publicunderstands to form part of a litigator’s stock and trade.

It involves acts which in the usual course, if performed improperly, mightappropriately draw comment or sanction from the Law Society. If these tasks do not form part of the practice of law, what does? [37] The Alberta Legislature has chosen to grant the privilege of self-regulation to the legal profession in Alberta. The AlbertaLegislature enacted LPA s. 106(1) for the purpose of ensuring, among other things, that lawyers practising in Alberta be competent andproficient, adequately insured by the Alberta Lawyers' Insurance Association, and bound by the CPC.

While Tooks barristers may wellbe competent and proficient, there was no evidence before this Court that they are insured, nor did the Plaintiffs present evidence toestablish that Tooks barristers would be bound by the CPC. [38] The Plaintiffs rely heavily on Professional Signcrafters. That decision addressed Old Rules r. 5.4. It is noteworthy that theissue before O’Leary J., as he then was, was whether the director of the plaintiff corporation had contravened the LPA by commencingan action on behalf of the plaintiff corporation.

The director had already lost on an appeal of a Master’s decision denying him standing tomake representations on behalf of the plaintiffs at the hearing of the motion to strike out the plaintiffs' pleadings.

Although O’Leary J. inobiter dictum distinguished between the right of audience in Old Rules r. 5.4, and the right to practice law under the equivalent of LPA s.106(1), there is no suggestion that he intended his comments to extend so as to allow trained lawyers to circumvent the regime of self-regulation established by the Alberta Legislature, particularly where the party seeking this relief is already represented by counsel ofrecord. [39] Further, New Rules r. 2.23 speaks not of “represent” and “representation,” but of “assist” and “assistance.” While the list offorms of assistance set forth in New Rules r. 2.23(2) is not exhaustive, New Rules r. 2.23(3) is absolutely clear that, despite the apparentbroadness of New Rules r. 2.23(1), a court has no discretion to permit assistance where the court’s ruling would contravene LPA s.106(1).

This Court has no inherent jurisdiction to make an order negating the unambiguous expression of the will of the AlbertaLegislature: Baxter Student Housing Ltd. v. College Housing Co-Operative Ltd., (SCC), [1976] 2 S.C.R. 475 at 480.If this language left any room for doubt, the Information Note that one finds in the New Rules emphasizes that the “assistance” must fallshort of "acting as a barrister or solicitor." This Court need not determine the broadness (or narrowness) of New Rules r. 2.23.

Inparticular, it need not determine whether New Rules r. 2.23 is or is not limited to self-represented litigants by virtue of the fact that NewRules r. 2.22 is headed “Self-represented litigants,” New Rules r. 2.23 is headed “Assistance before the Court,” and there is no mention ofself-represented litigants in the title of the division of the New Rules in which New Rules r. 2.23 appears. [40] This Court also notes that LPA s. 106(2)(

m) creates a very limited exception to LPA s. 106(1). That paragraph allows a personholding professional legal qualifications obtained in a country outside Canada in respect of services permitted to be provided by thatperson in accordance with the rules in giving legal advice respecting the laws of that country. That exception does not apply here. Rulesr. 74(

e) says “practise as a foreign legal consultant" means to carry on a practice as a legal advisor with respect to the laws of a foreigncountry or of a political subdivision of a foreign country, and "the practice of a foreign legal consultant" has a corresponding meaning.Rules rr. 74 to 80 require foreign legal consultants to apply to the Law Society for licences, pay annual licensing fees and provideservices, only in accordance with the conditions imposed by the licences.

In this case, Tooks barristers is not intending to practice as aforeign legal consultant, as it is not advising on the laws of the foreign country. It intends to advise on and apply Canadian law. [41] This Court finds that the LPA and New Rules r. 2.23 prohibit Tooks barristers’ proposed expanded participation in theseproceedings and, in particular, in the Applications to Strike. The LPA and New Rules r. 2.23 do not provide an alternative basis for thisparticipation.

[ 42 ] The Plaintiffs assert that Woodco’s active representation will come at a price which is beyond the Plaintiffs’ means. The Defendants took issue with the affidavit evidence regarding the Plaintiffs’ alleged impecuniosity. Although that issue is not squarely before this Court, it is acutely aware of the resources likely spent to date on court appearances since the first adjournment application in the fall of 2010. Nothing can be inferred solely from that fact. It may reflect the Plaintiffs’ available resources.

At the same time, it might support the argument that the Plaintiff cannot continue to fund the litigation at the current rate. [ 43 ] Having considered all of the arguments presented, this Court can come to no other conclusion but that under the current circumstances the proposed participation of Tooks barristers, beyond the supporting role conceded by the Law Society and the Defendants, are prohibited by LPA ss. 102 and 106 . Further, this Court declines to exercise its inherent jurisdiction to grant an order for expanded participation beyond that to which the parties have agreed. IX.

Costs [ 44 ] If they are not able to agree, the parties may speak to costs of this hearing. Heard on the 27 th day of May, 2011. Dated at the City of Edmonton, Alberta this 24 th day of June, 2011. K.D. Yamauchi J.C.Q.B.A. Appearances: Jack Woodward, Woodward & Company for the Plaintiffs Everett L. Bunnell, Q.C., MacLeod Dixon LLP Donald N. Kruk, Alberta Justice for the Defendant, Her Majesty the Queen in Right of the Province of Alberta Kathleen Kohlman/Sukhi Sidhu Cynthia Dickens, Department of Justice Canada

for the Defendant, Attorney General of Canada Molly Naber-Sykes for The Law Society of Alberta