Nahirney v. Ogilvie & Company, 2011 ABQB 586

Court of Queen ’ s Bench of Alberta Citation: Nahirney v. Ogilvie & Company, 2011 ABQB 586 Date: 20110928 Docket: 0203 09286 Registry: Edmonton Between: Karen Nahirney Plaintiff - and - Ogilvie & Company, Barristers & Solicitors, Grant Dunlop and Harold Veale, Q.C. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Background [ 1 ] The Defendants, Ogilvie LLP, Grant Dunlop and Harold Veale, Q.C. (the “Ogilvie Defendants’) bring this application for an order by the Court prohibiting Mr. Nahirney from representing the Plaintiff, his adult daughter, in this action. [ 2 ] The Ogilvie Defendants, through their counsel, have filed and served an Application and supporting Affidavit on the Plaintiff for an application to have this action summarily dismissed (the “Summary Judgment Application”).

The Ogilvie Defendants, through their counsel, have come to understand that Mr. Nahirney intends to represent his daughter’s interest in both the

Summary Judgment

Application as well as generally throughout this action. [ 3 ] The Plaintiff’s father, Mr. Peter Nahirney has stated that by virtue of a Power of Attorney he is entitled to represent his daughter, who is a self-represented litigant in this action. Furthermore, Mr. Nahirney advises the Court that no lawyer appears willing to undertake his daughter’s case so he has little or no choice in this matter but to assist his daughter. [ 4 ] Karen Nahirney, the sole Plaintiff in this Action, alleges to have been physically and sexually assaulted in the context of a job interview.

On or about June 30, 1995, the Plaintiff entered into a retainer agreement with Ogilvie LLP, then Ogilvie and Company (“Ogilvie”) which specified that Ogilvie would prosecute the claim of the Plaintiff if necessary to the trial level (the “Retainer Agreement”). [ 5 ] Additionally the Retainer Agreement authorized Ogilvie to take any proceedings or do any acts “which in their opinion may be necessary or advisable, for this purpose and generally to act as Counsel in the matter as the Solicitors may deem expedient and proper”. [ 6 ] Ogilvie brought a civil suit against the employee (the “Defendant Employee”) that Ms.

Nahirney alleged committed the assault, and his employer (the “Defendant Employer”). [ 7 ] On or about March 2, 2000, Ogilvie received an offer to settle from the Defendant Employee and Defendant Employer for $35,000.00. Ogilvie advised Ms. Nahirney that she should make a counter offer of $100,000.00 and not accept anything under $60,000.00. Subsequently, Ms. Nahirney decided not to make a counter offer and later indicated that she wished to seek a second opinion. Ogilvie then ceased to act for Ms.

Nahirney. [ 8 ] The Plaintiff commenced this action against Ogilvie, Grant Dunlop and Harold Veale, Q.C. (collectively the “Ogilvie Defendants”) alleging damages as a result of their handling of her file. The Plaintiff was originally represented by counsel and has since become a self- represented litigant. [ 9 ] Since becoming a self-represented litigant, the Plaintiff has relied on her father to generally conduct this litigation. Mr.

Nahirney has sworn affidavits on behalf of his daughter, communicated with counsel for the Ogilvie Defendants, and has said he intends on representing his daughters interests in all future proceedings. [ 10 ] The Ogilvie Defendants subsequently filed and served an Application for

Summary Judgment and supporting Affidavit (the “Summary Judgment Materials”). After receiving the

Summary Judgment Materials, Mr. Nahirney responded with an affidavit of his own. [ 11 ] Counsel for the Ogilvie Defendants then wrote to Mr. Nahirney explaining that he would not be able to represent his daughter unless he demonstrated any evidence of capacity issues that could permit representation pursuant to Rule 2.11(

c) or otherwise. Three attempts were made to request further evidence from Mr. Nahirney on May 4, 2011, May 27, 2011 and June 8, 2011 until finally on June 15, 2011, Mr. Nahirney responded to counsel by letter informing them that his daughter did not suffer from any capacity issues. Issue [ 12 ] The central issue in this application is whether or not a person who is not a barrister or solicitor can represent a self- represented litigant before the Alberta Court of Queen’s Bench and generally carry on an action on behalf of a self-represented litigant. Analysis

[ 13 ] The Ogilvie Defendants submit that there is a clear prohibition on non-lawyers acting as barristers and solicitors by drafting court documents and acting on behalf of a self represented litigant, who is not a minor and has not demonstrated any capacity issues. [ 14 ] Ms. Nahirney and her father point out that despite repeated efforts, no lawyer they have contacted is willing to take on their case. [ 15 ] Section 106(1) of the Legal Professions Act , RSA 2000, c. L-8 reads: Practice of Law 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. (2) Subsection (1) does not apply to the following: (

a) a student-at-law in respect of anything permitted to be done by the student-at-law in the course of the student-at-law’s service under articles or under the rules made pursuant to

section 105; (

b) a person who holds an authorization granted under

section 48 in respect of services provided within the scope of the authorization and in accordance with the rules under

section 48, or a person who is deemed by the rules to hold an authorization under

section 48 in respect of services provided in accordance with the rules; (

c) a professional corporation in respect of services performed while it holds a permit under

Part 8 that is not under suspension; (

d) a person employed by an active member or professional corporation pursuant to a resolution of the Benchers under

section 108 in respect of services provided by that person within the scope of that person’s employment and in accordance with the resolution; (

e) a university law student in respect of services permitted to be provided by that student by the rules that are provided in accordance with the conditions prescribed by the rules; (

f) a notary public in respect of services provided by the notary public in the exercise of powers conferred on the notary public by law; (

g) a public officer in respect of any acts performed by the public officer within the scope of the public officer’s authority as a public officer; (

h) a person who acts on the person’s own behalf in an action, matter or proceeding to which the person is a party; (

i) a person in respect of the preparation by the person of a document for the person’s own use or to which the person is a party; (

j) an officer or employee of a corporation, partnership or unincorporated body in respect of the preparation of a document for the use of the corporation, partnership or unincorporated body or to which it is a party; (

k) a person licensed as an insurance adjuster under the Insurance Act in respect of services provided by the person as an insurance adjuster; (1) a person permitted by statute to appear as the agent of another person before a justice of the peace, the Provincial Court or a provincial judge in respect of services provided by that person as an agent; (

m) a person holding professional legal qualifications obtained in a country outside Canada in respect of services permitted to be provided by that person in accordance with the rules in giving legal advice respecting the laws of that country.

(3) Subsection (2)(

l) does not include a person who is disbarred, [ 16 ] Instances in which a Litigation Representative is required are laid out in Rule 2.11 which reads: Litigation representative required 2.11 The following individuals or estates must have a litigation representative to bring or defend an action or to continue or to participate in an action, or for an action to be brought or to be continued against them: (

a) an individual under 18 years of age; (

b) an individual declared to be a missing person under

section 7 of the Public Trustee Act ; (

c) an adult who, in respect of matters relating to a claim in an action, lacks capacity, as defined in the Adult Guardianship and Trusteeship Act , to make decisions; (

d) an individual who is a represented adult under the Adult Guardianship and Trusteeship Act in respect of whom no person is appointed to make a decision about a claim; (

e) an estate for which no personal representative has obtained a grant under the Surrogate Rules (AR 130/95) and that has an interest in a claim or intended claim. [ 17 ] In anticipation that the above Rule would be invoked by Mr. Nahirney, counsel for the Ogilvie Defendants wrote to Mr. Nahirney and requested that he put forward any evidence that would state that his daughter lacks capacity as defined in the Adult Guardianship and Trusteeship Act and therefore ought to have a litigation representative pursuant to the Alberta Rules of Court . Mr.

Nahirney responded that his daughter did not suffer from any capacity issues. [ 18 ] Notwithstanding this, Mr. Nahirney filed an “Affidavit of Self Appointed Litigation Representative” on April 11, 2011 in the hope of being appointed litigation representative pursuant to Rule 2.14(1). That Rule reads, in part: 2.14(1) If an individual or estate who is required to have a litigation representative under rule 2.11 does not have one, an interested person (

a) may file an affidavit in Form 1 containing the information described in subrule (2), and by doing so becomes the litigation representative for that individual or estate, and (

b) where an interested person has become the litigation representative under clause (

a) for an estate, the interested person must serve notice of the appointment in Form 2 on the beneficiaries and heirs at law of the deceased. [Emphasis added] [ 19 ] Rule 2.14 contemplates a self appointed litigation representative may only be used in cases where the individual or estate is required to have a litigation representative under rule 2.11. However Rule 2.11 does not apply to Ms. Nahirney’s case as she is not a minor and does not appear to be suffering from any disability that would prevent her from representing herself. [ 20 ] Mr.

Nahirney also submits that it is his belief that he is entitled to represent his daughter in Court by virtue of a power of attorney he has for his daughter. However a Power of Attorney alone cannot grant an individual the right to appear on behalf of a self-represented litigant, however as I stated in Alberta Treasury Branches v. Klassen 2004 ABQB 463 at para. 27 :

The fact that Mr. Peddle may have a Power of Attorney from the Applicants, only means that he is able to execute documents on theirbehalf, and does not mean that he can appear in court on their behalf. [21] There is reference to a Power of Attorney in the current Alberta Rules of Court in Rule 2.13 which reads: Automatic litigation representatives 2.13 A person is a litigation representative under these rules if the person has authority to commence, compromise, settle or defend aclaim on behalf of an individual or an estate under any of the following: (

a) an enactment; (

b) an instrument authorized by an enactment; (

c) an order authorized under an enactment; (

d) a grant or an order under the Surrogate Rules (AR 130/95); (

e) an instrument, other than a will, made by a person, including, without limitation, a power of attorney or a trust. [22] Rule 2.13(

e) allows a person to become an automatic litigation representative by virtue of having an instrument such as apower of attorney, However the Rule should only apply to instances in which a litigation representative is required to be appointed. If theresult of Rule 2.13(

e) was to allow anyone to appoint a non-lawyer as their de-facto representative in court, then s. 106 of the LegalProfession Act would be rendered meaningless. [23] The Alberta Rules of Court also contemplate a conflict with any other statutes in Rule 1.9, which reads: Conflicts and inconsistencies with enactments 1.9 Except as expressly provided, if there is a conflict or inconsistency between these rules and an enactment, the enactment prevails tothe extent of the conflict or inconsistency. [24] Even if Mr.

Nahirney is capable of being appointed litigation representative pursuant to the Alberta Rules of Court, he wouldstill be prohibited from representing his daughter’s interest in the litigation. The permissibility of litigation representatives to representothers in court has not been dealt with under the current Alberta Rules of Court. Our Court of Appeal has considered the use of NextFriends under the old Rules of Court in the case of a minor as follows: . . . [A] next friend is not a party to the lawsuit.

He is an officer of the court under its control, and cannot even make a bindingsettlement on behalf of the infants (even as to modes of procedure). It is elementary that a non-lawyer cannot represent someoneelse as advocate before the superior courts. Salamon v. Alberta (Minister of Education) (1991), 1991 ABCA 279 , 120 AR 298 at para. 3 See also Torrance v. Alberta 2010 ABCA 88 at para. 14 Conclusion

[ 25 ] Self represented litigants are expressly granted a right of audience before the court pursuant to Rule 2.22, which reads; Self-represented litigants 2.22 Individuals may represent themselves in an action unless these rules otherwise provide. [ 26 ] The Plaintiff’s father Mr. Nahirney is permitted to provide limited assistance to his daughter by virtue of Rule 2.23. Rule 2.23 reads: 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. [ 27 ] Accordingly, the Ogilvie Defendants cannot object to Mr. Nahirney assisting his daughter pursuant to Rule 2.23. However Rule 2.23 does not permit Mr. Nahirney to stand in the place of a lawyer and represent his daughter. Rule 2.23 contains an explicit reference to s. 106(1) of the Legal Profession Act .

The conduct of any person assisting a party before the Court must fall short of “acting as a barrister or solicitor” and “commencing, carrying on or defending an action or proceeding before a court or judge on behalf of another person”. [ 28 ] I conclude that Rule 2.11, 2.13 and 2.14(1) were intended to grant representation only in cases where a litigation representative was necessary under the Alberta Rules of Court . In the present case, the Plaintiff does not suffer from a disability and is not a minor, therefore there is no basis for the appointment of a Litigation Representative.

Heard on the 23 rd day of September, 2011. Dated at the City of Edmonton, Alberta this 28 th day of September, 2011.

Donald Lee J.C.Q.B.A. Appearances: Peter Nahirney for the Plaintiff Michael S. Sestito Bennett Jones LLP for the Defendants