Champagne v Sidorsky, 2012 ABQB 522

Court of Queen ’ s Bench of Alberta Citation: Champagne v Sidorsky, 2012 ABQB 522 Date: 20120817 Docket: 1001 18773 Registry: Calgary Between: Douglas K. Champagne, Cheri L. Champagne and Cindy L. Champagne Plaintiffs (Defendants by Counterclaim) - and - Ryan Sidorsky Defendant (Plaintiff by Counterclaim) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C. Jones _______________________________________________________ Background [ 1 ] The issues addressed below came before me in chambers on July 13, 2012. This matter had been directed to case management.

It involves proceedings brought by Douglas Champagne (“Douglas”) against Ryan Sidorsky. Douglas asserts, among other things, that Mr. Sidorsky is in breach of the terms of a restrictive covenant (“RC”) registered against lands acquired by Mr. Sidorsky from Douglas. He further asserts that Mr. Sidorsky is in breach of other provisions of the contract of purchase and sale made between them. The meeting on July 13, 2012 was the second case management meeting regarding this action.

[ 2 ] Douglas wishes to limit his participation in the litigation which he commenced. To that end, on August 16, 2011, he appointed his daughters, Cindy Champagne (“Cindy”) and Cheri Champagne (“Cheri”) to be his attorneys under an enduring power of attorney (“EPA”).

The EPA purported to appoint Cindy and Cheri as his attorneys to, inter alia , commence, compromise, settle or defend a claim on his behalf relating to real property transactions. [ 3 ] Cindy sought to be characterized as an automatic litigation representative pursuant to the provisions of Rule 2.13 of the Alberta Rules of Court , Alta Reg 124/2010 [ Rules ]. Rule 2.13 provides that: 2.13 A person is a litigation representative under these rules if the person has authority to commence, compromise, settle or defend a claim on behalf of an individual or an estate under any of the following: (

a) an enactment; (

b) an instrument authorized by an enactment; ... (

e) an instrument, other than a will, made by a person, including, without limitation, a power of attorney or a trust. [ 4 ] Mr. Sidorsky challenged Cindy’s ability to conduct litigation on her father’s behalf. He asserted that

section 2.13 of the Rules did not allow Cindy to act as litigation representative for her father unless he was required under Rule 2.11 to have a litigation representative. That

section identifies a number of circumstances in which individuals, suffering from one form of incapacity or another, must have a litigation representative to bring or defend an action. [ 5 ] On November 17, 2011, Justice Hunt McDonald determined that Rule 2.13 (

e) should only apply in instances in which a litigation representative is required to be appointed. She determined that the appointment of Cindy and Cheri under the EPA did not automatically mean that Douglas was required or permitted to have a litigation representative. [ 6 ] In argument before Justice Hunt McDonald, Mr. Sidorsky also asserted that section 106(1) of the Legal Profession Act , RSA 2000, c L-8 [ LPA ] prohibited Cindy and Cheri from providing their father with assistance in this matter. That

section states: 106(1) No person shall, unless the person is an active member of the Society, (

a) practice 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. [ 7 ] Section 106(2) provides certain exceptions to the prohibitions contained in section 106(1).

[ 8 ] Justice Hunt McDonald agreed with Mr. Sidorsky. She determined that any actions taken by an agent of a self-represented litigant must be limited to those actions set out in Rule 2.23. As she noted: These actions 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. [ 9 ] Douglas subsequently transferred his interest in certain lands, which he claims enjoy the benefit of the RC, from himself to himself, Cindy and Cheri as joint tenants. Mr.

Sidorsky appears to accept assertions by Cindy and Cheri that, by virtue of their status as co-owners of these lands, they may be added as plaintiffs to Douglas’ action against Mr. Sidorsky. Current Requests 1. The Statement of Claim [ 10 ] The Plaintiffs (collectively, Douglas, Cindy and Cheri) wish to amend their statement of claim. To that end they have submitted an Amended Statement of Claim, Further Amended (“SC”). [ 11 ] Mr. Sidorsky objects to the SC on several grounds. Most notably, he asserts that it blends statements of what it claims to be fact with argument and what it offers as evidence.

Both parties and this Court agree that it needs revision so that it properly expresses the basis of the claim against Mr. Sidorsky and permits a response. The Plaintiffs have advised that Cindy, with the assistance of Calgary Legal Guidance, will attempt to revise the SC so that it addresses these concerns. [ 12 ] Once the SC has been revised, Mr. Sidorsky will be asked to review it. If it continues to be unsatisfactory, Mr. Sidorsky may require the Plaintiffs to bring an application to amend the SC pursuant to Rule 3.65. 2.

Cindy ’s Requested Orders [ 13 ] Now that Cindy and Cheri are co-owners of lands which they claim enjoy the benefit of the RC, Cindy seeks either:

a) Appointment as litigation representative under Rule 2.16 (with her powers and responsibilities to be clarified pursuant to Rule 2.21). Cindy takes the position that the ligation involving the RC engages Rules 2.16(1)(

c) and (

d) along with 2.16(2)(c); or

b) Certification of the Plaintiffs as a class under the Class Proceedings Act, SA 2003, c C-16.5 [ CPA ]. Certification would engage the provisions of the CPA and allow Cindy to act as a “representative plaintiff”. [ 14 ] Cindy believes that either of these proposed orders will facilitate their efforts to allow Cindy to assume greater responsibility for conduct of the litigation. Mr.

Sidorsky opposes both of these proposed orders asserting, inter alia , that Cindy’s appointment as litigation representative or representative plaintiff would achieve indirectly what Justice Hunt McDonald determined could not be accomplished directly. That is, Cindy would effectively be empowered to perform the role of barrister and solicitor on behalf of her father and her sister. [ 15 ] Cindy challenges that characterization.

At paragraph 24 of the Plaintiffs’ Brief of Law submitted in connection with the July 13 case management meeting (“Plaintiffs’ Brief”), Cindy states as follows in connection with her arguments in support of her appointment as a litigation representative pursuant to Rule 2.16:

Each Plaintiff, including my father, will face questioning on their own and will manage all aspects of bringing their own witnesses, if any. I will oversee only the common issues. I would not being [sic] acting as a lawyer. I would be acting on my own behalf. I seek the authority of the Court to provide for this Action a fair and efficient process whereby I may represent myself on the common issues which will therefore represent the other Plaintiffs on the common issues to the same affect [sic]. 3. Mr. Sidorsky ’s Requested Orders [ 16 ] In response to Cindy’s application, Mr. Sidorsky makes two requests:

a) That the entire SC, excepting those portions related to the landscaping of the Sidorsky lands since April 2010 and the erection of a garden shed, be struck; and

b) That he be granted costs, not only for this application, but for all further steps that arise as a result of the amendments to the SC inclusive of discovery and evidence production. [ 17 ] In support of his requested order to strike the majority of the SC, Mr. Sidorsky submits that Douglas admits in the SC historical knowledge of breaches of the RC related to construction activities, which Mr. Sidorsky claims ended May 2007, but which are only now being prosecuted. Mr.

Sidorsky argues that the Plaintiffs are now statute barred by the Limitations Act , RSA 2000, c L-12 [ Limitations Act ] from pursuing actions related to these purported breaches and that the only issues which remain alive are those stemming from construction and landscaping since April 2010. Analysis 1.

Representation Before This Court [ 18 ] The main thrust of Cindy’s requested orders is to achieve a means to an end: to be able to relieve her father of the burden of litigation by removing him from the process insofar as possible. [ 19 ] I fully appreciate that Douglas may find the litigation process difficult, stressful and time consuming. I accept that Cheri may believe that Cindy is more capable of withstanding the rigors of litigation.

Cindy, for her part, deserves respect for coming to the assistance of her family. [ 20 ] Cindy has now requested three orders which she believes would enable her to advocate for her father’s interests in this Court, so I choose to analyze the requirement for a lawyer first and separately from the merits of each order she requests.

While the need for legal counsel may not be a condition precedent to a successful appointment as a litigation representative or representative plaintiff, it would do no service to Cindy to be appointed as such and thereafter told she would be unable to conduct the litigation as she had anticipated.

Finally, where it is clear a party has no intention of appointing counsel that would be required if an order is successful, I feel that should inform my exercise of discretion, where it exists, under each rule: I would prefer to avoid setting a party up for failure. [ 21 ] Unfortunately for Cindy, the law in Alberta requires that, except where there is an express exception such as those contained in section 106(2) of the LPA or the Court exercises its discretion to allow lay persons audience, for one person to represent another before this Court, that person must be a lawyer.

[22] In analyzing this requirement within the context of the requested orders, I will discuss the connection between a “litigationrepresentative” under the new Rules and a “next friend” and “guardian ad litem” under the old Alberta Rules of Court, Alta Reg 390/68[Old Rules]. This will provide the groundwork for my next area of discussion: why, when a litigation representative is appointed, theymust operate through counsel. I will then discuss the requirement that a representative litigant in a class proceeding proceed throughcounsel.

Finally, I will consider this Court’s discretion to grant audience to non-lawyers before making some concluding remarks. a) “Litigation Representative” Replaces “Next Friend” and “Guardian Ad Litem” [23] I agree with the proposition at paragraph 32 of Mr. Sidorsky’s Rebuttal Brief.

That is, a litigation representative under thecurrent Rules reflects what was formerly referred to as a “next friend” or “guardian ad litem.” The result is that the preponderance ofjurisprudence pre-dating the current Rules regarding the representatives of litigants is either binding or so highly persuasive that it is ineffect binding in developing rules surrounding litigation representatives. [24] Under the Old Rules, a party under disability could generally sue by a “next friend” and defend by a “guardian ad litem.” Thesame forms of disability give rise under the current Rules to the requirement of representation by a “litigation representative.” Withoutmore, it appears the old terms were replaced with the more accessible, umbrella term “litigation representative.” But the Rules gofurther: in the Appendix to the Rules, a “litigation representative” is defined as inclusive of a “next friend” and “guardian ad litem”: “litigation representative” includes but is not limited to a guardian ad litem and next friend; [25] The case law also supports this proposition.

In Nahirney v Ogilvie & Company, 2011 ABQB 586 [Nahirney], Lee J dealt withthe requirement for a litigation representative to hire counsel to represent the party to the lawsuit, citing Salamon v Alberta (Minister ofEducation), (1992), 1991 ABCA 279 , 120 AR 298 [Salamon], which stands for the proposition that a next friend cannotrepresent someone else. Graesser J, in LC v Alberta, 2011 ABQB 42, 509 AR 72 used the terms “next friend” and “litigationrepresentative” interchangeably while dealing with an application which, while argued with the Old Rules in force was released after thenew Rules took effect.

Finally, Thomas J states that a “next friend” under the Old Rules is “a ‘litigation representative’ under the newRules” in 1985 Sawridge Trust v Alberta (Public Trustee), 2012 ABQB 365 at para 20. [26] I therefore conclude that the term “litigation representative” under the Rules replaces and is inclusive of “next friend” and“guardian ad litem” under the Old Rules, with the result that jurisprudence defining the rights, responsibilities, powers and limits ofpower of these positions remains, at the very least, highly influential.

b) Counsel is Required When a Litigation Representative is Appointed [27] This application requires me to consider whether, even if Cindy were to be appointed as a litigation representative for herfather and sister, she could represent them in Court. The answer is no, she would have to hire counsel. I begin with the comments atpages 5-4 of Stevenson & Côté, Civil Procedure Encyclopedia vol 1 (Edmonton: Juriliber, 2003) [CPE]. There, the authors note that: The next friend is an officer of the court, not a party. … A next friend is not a party to the action.

So the next friend cannot claim damages. [footnotes omitted] [28] Note the comments at page 5-5: In England a next friend or guardian ad litem must appear by a solicitor, not in person.

[footnotes omitted, emphasis in original] [29] Except when a clear intention is shown to change the law, legislation is presumed not to change existing law.

Fauteux J heldin Goodyear Tire & Rubber Co v Eaton Co, (SCC), [1956] SCR 610 at 614 that “a Legislature is not presumed to departfrom the general system of the law without expressing its intentions to do so with irresistible clearness, failing which the law remainsundisturbed.” Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes 4th ed (Markham: Butterworths, 2002) at 341 states: Although legislation is paramount, it is presumed that legislatures respect the common law.

More precisely, it is presumed thatlegislatures do not intend to interfere with common law rights, to oust the jurisdiction of common law courts, or generally to change thecommon law. ... These presumptions permit the courts to insist on precise and explicit direction from the legislature before accepting any change. Thecommon law is thus shielded from inadvertent legislative encroachments. [footnotes omitted] [30] This rule must also apply to regulations, which are subordinate to acts of the Legislature.

Under the Old Rules it was clear thata lay next friend could not act as counsel for the disabled person: Salamon at paras 3, 9, Torrance v Alberta, 2010 ABCA 88 at para 14,477 AR 343. No part of the new Rules indicates an intention to depart from the requirement that a next friend under the Old Rules or oldEnglish common law hire counsel to represent the party to the litigation. [31] The emerging jurisprudence under the new Rules adopts the same requirement as under the old rules that a disabled party,litigating via a representative, be represented by counsel: Nahirney at paras 24-27, discussed above.

The Rules and the LPA, readtogether, indicate that while there are circumstances where someone will need or benefit from a litigation representative to control thelitigation, a lawyer must still represent the party in the litigation. There are exceptions to the rule requiring representation by qualifiedcounsel, such as the exceptions in section 106(2) of the LPA which were canvassed by Justice Hunt McDonald in November 2012 andfound not to be applicable in this case. [32] A litigation representative, with nothing more, does not have the ability to represent a party before the court.

The status oflitigation representative, under any rule of the Rules, does not circumvent the requirements of section 106(1) of the LPA. Only a partythemself, a lawyer, someone granted audience by the Court, or someone operating under an express exception to the rule requiringcounsel may commence or continue an action before this Court. The litigation representative might be the captain of the ship, but theymay not row the boat.

c) Counsel is Required in Class Proceedings [33] Specific reference to the requirement for representation in class proceedings can be found in the Alberta Law Reform Institute,Alberta Rules of Court Project: Self-Represented Litigants, Consultation Memorandum, No 12.18 (Edmonton: ALRI, 2005), a reportwhich considered the position of self-represented litigants in Alberta.

In considering what provisions should find their way into the now-present Rules the Committee noted at paragraph 69: Under Alberta case law, where individuals commence actions on behalf of a person with a disability or in a representative capacity, legalrepresentation is generally required. [34] And, at paragraph 73, specific reference is made to litigants acting in a representative capacity: The new rules should make the position under the case law clear.

That is to say, generally corporations and persons acting on behalf of aperson under legal disability or serving in a representative capacity cannot self-represent but the court has the discretion to allow themto do so in appropriate circumstances. [emphasis added]

[35] The same logic behind the requirement for a litigation representative to operate through counsel applies to class actions: theactions taken operate on someone else’s interests. From Salamon it is clear those interests cannot be represented by a non-lawyer.Reading the CPA, the LPA and the Rules together provides that while there may be circumstances in which a non-lawyer may takecertain steps in a class proceeding, those actions cannot amount to the actions of a barrister or solicitor.

Given the complex nature of classproceedings, the requirement for notice to other class members, and the possibility that class members will be bound by proceedings theymay not fully understand, the need for representation in class proceedings is particularly strong. [36] Saskatchewan, The Queen’s Bench Rules, r 10(1) makes the requirement for representation explicit: A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer. [37] I conclude that the law in Alberta is the same: except when the Court exercises its discretion to allow representation by non-lawyers or otherwise provided for in an express exception, representative plaintiffs must be represented by counsel.

Cindy would have toappoint a member of the bar to represent her and all members of the designated class were she to be appointed as a representativeplaintiff. To do otherwise would: 1) offend the object, spirit, and ordinary meaning of section 106(1) of the LPA; and 2) be inconsistent with Alberta case law which has determined that counsel must be engaged in such circumstances in order toprotect the public interest.

d) The Court’s Discretion to Allow Representation by Non-Lawyers [38] Within the limits properly enacted in legislation or regulation, this Court as a superior court has inherent jurisdiction to controlits own procedure and allow an agent to represent another person: Professional Sign Crafters

(1988) Ltd v Wedekind (1994), (AB KB), 153 AR 358 (QB) at paras 10-15, cited with approval in Pacer Enterprises Ltd v Cummings, 2004 ABCA 28 atpara 9, 346 AR 161 [Pacer]. [39] In Pacer at para 13 the Court of Appeal gave some guidance on when audience should be granted to a non-lawyer as an agentfor another person: In exercising its discretion to grant an audience to a non-lawyer as agent for another person, a judge should consider whether the agenthas a family relationship with the litigant, whether the agent is offering its services for a fee, the economic hardship that might besuffered by the litigant, and whether the denial of the application would effectively deny the litigant the benefit of any representation[.] [40] In Balogun v.

Pandher, 2009 ABCA 409 at para 16, 469 AR 187 the Court of Appeal, citing Salamon, states “[t]he 'right ofaudience' permitted under Rule 5.4 does not confer the right to practice law”. Where audience is granted, it must be for something lessthan the full gamut of a barrister and solicitor. [41] In Pacer, the court exercised its discretion to allow a defendant with a grade three education, confronted with a $10,505 actionin debt, to be represented by a self-employed “paralegal/court agent” (Pacer at paras 2-3).

The circumstances of this case are muchdifferent: while there is a familial relationship which was not present in Pacer, the issues here are far more complex, involving propertyand contract law, and the risks significant: the Plaintiffs seek injunctive relief that might involve the destruction of a residence. [42] Given the factors involved in this litigation, I cannot foresee circumstances such that I would be comfortable using mydiscretion to grant audience to Cindy in order for her to represent Douglas and/or Cheri.

e) Closing Thoughts and Conclusions Regarding the Requirement for Counsel [ 43 ] The requirement for counsel to represent those in actions before this Court who are unable or do not wish to represent themselves is a logical public policy choice: lawyers are regulated by a professional association and carry insurance for errors they may make.

The protections afforded by the requirement for counsel exist not only for the party being represented, but also for all parties to the litigation, who benefit from the knowledge and experience a legal professional brings to the action. [ 44 ] Excepting clear rules to the contrary or the Court’s exercise of its discretion to grant audience, where one person is to represent another, that first person must be a lawyer. 2. Appointment of a Litigation Representative Pursuant to Rule 2.16 [ 45 ] Rule 2.16 provides as follows: 2.16(1) This rule applies to an action concerning any of the following: (

a) the administration of the estate of a deceased person; (

b) property subject to a trust; (

c) the

interpretation of a written instrument; (

d) the

interpretation of an enactment.

(2) In an action described in subrule (1), a person or class of persons who is or may be interested in or affected by a claim, whether presently or for a future, contingent or unascertained interest, must have a Court-appointed litigation representative to make a claim in or defend an action or to continue to participate in an action, or for a claim in an action to be made or an action to be continued against that person or class of persons, if the person or class of persons meets one or more of the following conditions: (

a) the person, the class or a member of the class cannot be readily ascertained, or is not yet born; (

b) the person, the class or a member of the class, though ascertained, cannot be found; (

c) the person, the class or the members of the class can be ascertained and found, but the Court considers it expedient to make an appointment to save expense, having regard to all the circumstances, including the amount at stake and the degree of difficulty of the issue to be determined.

(3) On application by an interested person, the Court may appoint a person as litigation representative for a person or class of persons to whom this rule applies on being satisfied that both the proposed appointee and the appointment are appropriate. [ 46 ] Subrules 2.16(2)(

a) and (

b) do not apply to this situation.

[ 47 ] I am not convinced that Rule 2.16 was intended to apply in circumstances such as these. [ 48 ] Assuming, for the moment, that Rule 2.16 is available here and that Cindy could seek appointment without being required to immediately engage counsel to assist her in that representative capacity, does paragraph 2.16(2)(

c) apply? I believe it does not. [ 49 ] Subrule 2.16(2)(

c) directs me to consider the cost savings which Cindy’s appointment would yield. The Plaintiffs’ Brief does not shed meaningful light on why expense will be saved. It notes at paragraph 24 that “[t]his will save time, money and effort for all the parties” but does not explain how or why these cost savings will result. [ 50 ] In my view, Rule 2.16(2)(

c) contemplates the appointment of a litigation representative to save expense in certain scenarios. Those scenarios are where the balance of relatively low complexity, relatively low stakes, and any other relevant considerations increasing risk for the represented party weigh well against the savings resulting from appointing a litigation representative. [ 51 ] For example, Rule 2.16(2)(

c) might be applicable where a relatively simple and low dollar action would otherwise be uneconomical to pursue or defend, perhaps where the litigant normally resides in a developing nation and has a limited ability to contact and direct counsel.

Such is not the case here: there are no special cases differentiating these litigants from the many litigants in these halls which would justify the application of Rule 2.16(2)(c). [ 52 ] Further, excepting special circumstances, I do not believe it appropriate for an appointee to act in the capacity of litigation representative when that person is also a plaintiff in her own right.

Salamon at para 4 mentions that “[o]ne of the prime functions of a next friend is to ensure that the litigation is in the best interests of the infants, is sensible, and is well conducted.” This applies equally to litigation representatives who, as discussed above, replace next friends.

It would be difficult to be assured that a litigation representative is acting in the plaintiff’s best interests where they have, or could have, a conflict of interest as a result of their status as co-plaintiff. [ 53 ] I do not believe that Rule 2.16(1) was intended to apply in this situation and I do not feel it would be proper in these circumstances to exercise this Court’s discretion to allow Cindy to act in a representative capacity. I am not prepared to appoint Cindy as litigation representative on behalf of her father and/or her sister. 3.

Class Certification Under the CPA [ 54 ] Paragraph 17 of the Plaintiffs’ Brief notes that: CLC seeks the Honourable Court to determine whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues[.] [ 55 ] Sections 5(1) and 5(4) of the CPA require me to refuse to grant certification unless I am satisfied as to each of the matters referred to in subsections 5(1)(

a) to (e). Those matters are: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class of 2 or more persons; (

c) the claims of the prospective class members raise a common issue, whether or not the common issue predominates over issues affecting only individual prospective class members; (

d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;

(

e) there is a person eligible to be appointed as a representative plaintiff who, in the opinion of the Court, (

i) will fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, in respect of the common issues, an interest that is in conflict with the interests of other prospective class members. [ 56 ] I am satisfied as to some, but not all, of the considerations in section 5(1) of the CPA .

Specifically, I am not satisfied that a class proceeding would be the preferable procedure for ensuring fair and efficient resolution of issues. [ 57 ] In TL v Alberta (Child, Youth and Family Enhancement Act, Director) , 2009 ABCA 182 at para 26 , 457 AR 141 the Court of Appeal adopts the following guidance on the preferability analysis, developed by Thomas J: A class proceeding is the preferable procedure if it presents a fair, efficient and manageable method of determining common issues, and if such determination will advance the proceeding in accordance with the goals of achieving judicial economy, access to justice, and behaviour modification.

The essence of the inquiry is to assess the common and individual issues contextually, and consider the impact of the individual issues on the trial process, including fairness to plaintiffs, defendants and the court. The inquiry focuses on two questions: firstly, would the class action be a fair, efficient and manageable method of advancing the claim; and secondly, would the class action be preferable to all other reasonably available means of resolving the claims of class members.

As such, the preferability analysis requires the court to look at all reasonably available means of resolving the class members' claims, such as joinder, test cases, consolidation and so on, and not just at the possibility of individual actions. In

summary, preferability involves a balancing of all the interests of the parties and of the Court and may include an assessment of the economics of the litigation, the number of individual issues to be dealt with, the complexities if there are third party claims and the alternative means available for adjudicating the dispute. [footnotes omitted, emphasis added] [ 58 ] While Cindy is ready, willing and able to assume the role of representative plaintiff and is no doubt fair and evenhanded in her dealings with her father and her sister, I have been provided with no argument to suggest that her leadership will result in adequate representation of the class.

No “plan” for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class has been advanced by Cindy and it is not the responsibility of Mr. Sidorsky or this Court to respond to the absence of such a plan by propounding one.

I am not convinced that certifying the class action would be a “fair, efficient and manageable method of advancing the claim”. [ 59 ] While I can see how class proceedings might, to some extent, reduce the need for Douglas to participate in the litigation process I do not see why that would necessarily advance the goal of a “fair and efficient resolution of the common issues”, either from Mr.

Sidorsky’s perspective or the Court’s, which are required considerations. [ 60 ] While section 5(2) of the CPA provides that I may consider any matter I consider relevant in determining if a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, it also provides that I must at least consider: (

a) whether questions of fact or law common to the prospective class members predominate over any questions affecting only individual prospective class members; (

b) whether a significant number of the prospective class members have a valid interest in individually controlling the prosecution of separate actions;

(

c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings; (

d) whether other means of resolving the claims are less practical or less efficient; (

e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means. [ 61 ] With specific reference to (

d) and (

e) given the limited size of the class, their familial relationship and their explicit reliance on Cindy to provide leadership, I am not satisfied that any greater efficiencies would result from designation as a class: each individual will have to attend to address those issues which are not common. Joinder, as the Plaintiffs have done, seems to quite clearly be more efficient in this case.

This reflects the Supreme Court’s guidance in Western Canadian Shopping Centres Inc v Dutton , 2001 SCC 46 , [2001] 2 SCR 534 [ Dutton ] at para 42 : “the proposed class may be so small that joinder would be a better solution.” [ 62 ] Mr. Sidorsky should have the right to confront Douglas, either in person or through counsel, in response to Douglas’ assertions.

I am concerned that his ability to do so would be impeded by class designation and Cindy’s appointment as a representative plaintiff and that “greater difficulties”, to quote paragraph (e), might arise. [ 63 ] As with Rule 2.16, I have reservations regarding the appropriateness of employing the CPA in a manner which would facilitate a representative plaintiff’s attempt to advance litigation on behalf of a class without engaging counsel. [ 64 ] I am not convinced that a class proceeding would be a fair or efficient way to address these issues, but I am convinced it would not be the preferable method to address the issues.

I am not prepared to exercise my discretion to designate the Plaintiffs as a class for purposes of the CPA . 4. Class Certification Under Rule 2.6(1) [ 65 ] There remains Rule 2.6(1). It appears to me that Cindy has considered Rule 2.6 in the context of its interaction with the CPA only, and not with specific reference to Rule 2.6(1).

That rule states: 2.6(1) If numerous persons have a common interest in the subject of an intended claim, one or more of those persons may make or be the subject of a claim or may be authorized by the Court to defend on behalf of or for the benefit of all. [ 66 ] The rule’s wording is extremely similar to that of Old Rule 42, which long pre-dated the CPA : 42 Where numerous persons have a common interest in the subject of an intended action, one or more of those persons may sue or be sued or may be authorized by the Court to defend on behalf of or for the benefit of all. [ 67 ] It appears that an action may still be started under Rule 2.6(1), independent of the CPA .

The rule was slightly changed and re- enacted since the passage of the CPA and provides for proceedings the CPA does not, for example an action involving a class of defendants. I need not make a final ruling on the continued availability of this rule, however, as I will find that, assuming it is still available, it would not be available in this case. For now, I proceed assuming Rule 2.6(1) is alive and well to certify actions. [ 68 ] I believe that Mr. Sidorsky has considered the possibility of class certification under this rule.

At paragraphs 18 through 22 of his Rebuttal Brief, he challenges the assertion that the Plaintiffs have a common interest. He asserts that only Douglas was a party to the purchase contract and that Cheri and Cindy do not have a cause of action based on that purchase contract.

[69] The Plaintiffs have cited the provisions of

section 20 of the Judicature Act, RSA 2000, c J-2 which deals with absoluteassignments of choses in action. It is not clear from their representations how they believe

section 20 helps them, but it may be that theybelieve that Douglas’ rights under the purchase agreement have been assigned to Cheri and Cindy by some means. Given my conclusionbelow that the Plaintiffs have a common interest, I need not consider this further. [70] Korte v Deloitte, Haskins & Sells (1993), 1993 ABCA 78 , 135 AR 389 (CA) at para 14 sets out requirements for aclass action to be certified under this rule: The four requirements of a class action are as follows: (

a) The class must be capable of clear and definite definition; (

b) The principal issues of fact and law must be the same; (

c) Success for one of the plaintiff's [sic] will mean success for all; (

d) No individual assessment of the claims of individual plaintiffs need be made. [71] These requirements are elaborated on and explained in Dutton at paras 38-41. The elaboration for (

b) is at para 39: The underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legalanalysis. Thus an issue will be “common” only where its resolution is necessary to the resolution of each class member’s claim. It is notessential that the class members be identically situated vis-à-vis the opposing party. Nor is it necessary that common issues predominateover non-common issues or that the resolution of the common issues would be determinative of each class member’s claim.

However,the class members’ claims must share a substantial common ingredient to justify a class action. [72] McLaughlin CJ continues at para 44, now explaining constraints on certification of class proceedings: Where the conditions for a class action are met, the court should exercise its discretion to disallow it for negative reasons in a liberal andflexible manner, like the courts of equity of old. The court should take into account the benefits the class action offers in thecircumstances of the case as well as any unfairness that class proceedings may cause.

In the end, the court must strike a balance betweenefficiency and fairness. [73] I find that the class is capable of clear and definite definition: the three plaintiffs are listed. [74] I would be willing to conclude that the Plaintiffs have, for purposes of Rule 2.6(1) a common interest: the interest attaching tothe lands constituting the dominant tenement and its interaction with Mr. Sidorsky’s lands. That interest, transferred with the land, maybe exactly the same for all plaintiffs, but would be an issue to be finally resolved at trial with evidence.

Any separate interests, forexample any contractual claim which Douglas may have but which Cindy and Cheri do not have, can still be pursued alongside thecommon interest. [75] With regard to the third and fourth requirements for class certification, I find that success on the common issue for oneplaintiff would mean success for all – likewise, failure for one would mean failure for all. Finally, the claims need not be assessedindividually.

[76] However, the Plaintiffs would need to convince me that the three of them rise to the level of “numerous persons.” [77] In Dutton McLaughlin CJ noted that with then Rule 42 providing the only guidance in Alberta on class proceedings, thedetails of the actions were left largely to the courts (at para 31) and “numerous” itself was left undefined (at para 32).

In Goodfellow vKnight (1977), (AB KB), 5 AR 573 (QB) at para 23, Laycraft J (as he the was) provides insight into what “numerous”might mean, and what it does not: It may be doubted, moreover, whether the plaintiff, his two partners and their firm as a whole constitute a group of “numerous persons”.Nothing in the rule indicates that the word “numerous” is to be taken in any sense other than its usual meaning as describing a groupconsisting of many individuals. The purpose of the rule is to avoid the inconvenience of having many parties to the action.

In fact,naming each of the members of the firm as plaintiffs would in this case be a simpler procedure than the representative action which wascommenced. [78] Laycraft J’s reasoning can easily be transposed here. If three individuals and a partnership do not amount to “numerouspersons” then three individuals alone cannot reach that standard.

The Rules cannot possibly intend for “numerous” to include only threeindividuals. [79] As with proceedings under Rule 2.16 or the CPA, the effect of having Cindy assume a role “on behalf of or for the benefit ofall” would require her to engage counsel, as interests beyond her own would be represented: interests which she is prohibited fromrepresenting. [80] I do not believe that these would be “appropriate circumstances” in which to exercise discretion to allow Cindy to act in arepresentative capacity without engaging counsel. The issues involved in this case are reasonably complex.

Cindy is not defending herfather in connection with a traffic ticket. There is a lot at stake for the Plaintiffs and Mr. Sidorsky. Were Cindy to attempt to invoke Rule2.6(1), without engaging counsel, I would be alert to the possibility that she may be found to be engaging in the unauthorized practice oflaw. [81] Nevertheless, since there are not numerous persons with a common interest no order for a class designation and theappointment of a representative plaintiff will follow.

For the same reasons as discussed in relation to certification under the CPA, the“negative reasons” operating against certification exceed any benefits that would come from proceeding as a class: a class proceeding itis not the preferable way to prosecute this action. 5. Striking the Majority of the Amended Statement of Claim, Further Amended [82] Mr. Sidorsky could have anticipated this proposal failing. Mr.

Sidorsky bases this request on the basis that the majority of thePlaintiffs’ claim is statute barred, being past a limitation period in the Limitations Act. [83] The usual procedure, elementary in litigation, is to settle the pleadings first and then file an application for

summary judgmentif one party believes the other’s position is so doomed to failure that there is not even a chance of success. That application must besupported by an affidavit. The defendant may not win simply by pleading a defense and, hoping it to be true while submitting noevidence, asking the Court to strike all or the majority of the plaintiff’s pleadings on the basis that the defense would succeed. 6. Assessing Costs for All Future Steps Resulting From the Amendments [84] Mr. Sidorsky further asks the court to order that all future costs stemming from the amendments the Plaintiffs propose beassessed against the Plaintiffs. This request is also doomed to fail.

[ 85 ] It might be that Mr. Sidorsky is frustrated by an application to which he must respond and which he feels is without merit. It is not a solution to respond by proposing applications which themselves are also doomed to fail. [ 86 ] While I may order costs on this application, I would risk exceeding my jurisdiction were I to award costs prospectively. Future costs should be left to the judge hearing a future application or trial. Finally, were I to grant Mr.

Sidorsky’s request, I would be flying in the face of Rule 10.29, which provides that costs generally follow responsibility for an action or application, which is impossible to determine at this time. Costs of This Application [ 87 ] Rule 10.30(1)(

a) provides that: 10.30(1) Unless the Court otherwise orders or these rules otherwise provide, a costs award may be made (

a) in respect of an application or proceeding of which a party had notice, after the application has been decided, (

b) in respect of a settlement of an action, application or proceeding, or any part of any of them, in which it is agreed that one party will pay costs without determining the amount, and (

c) in respect of trials and all other matters in an action, after judgment or a final order has been entered. [emphasis added] [ 88 ] This application by Cindy has been heard with notice to Mr. Sidorsky. Mr. Sidorsky has had to respond to two vigorously argued proposed orders which, while they both failed for other reasons, were unable to escape the reasoning given by Justice Hunt McDonald in November 2012. [ 89 ] Mr. Sidorsky’s requests were also unsuccessful. Nevertheless, I find that the preponderance of argument requiring response stemmed from Cindy’s application rather than Mr.

Sidorsky’s cross-application. [ 90 ] Because Cindy cannot act as a representative of Cheri or Douglas, I take her actions to be on her behalf only. Therefore, I order costs of this application against Cindy in favour of Mr. Sidorsky at the rate provided for in Column 1 of

Schedule C to the Rules . I ask that Mr. Sidorsky prepare a bill of costs accordingly. If there are any disputes regarding the quantum of costs, the parties may speak to me. I note that were it not for Mr. Sidorsky’s unsuccessful requests, I would have awarded greater costs against Cindy.

Summary [ 91 ] In

summary:

a) Cindy will not be appointed as a litigation representative pursuant to Rule 2.16;

b) The Plaintiffs will not be designated as a class and Cindy will not be appointed as a representative plaintiff under the CPA ;

c) The Plaintiffs will not be designated as a class and Cindy will not be appointed as a representative plaintiff under Rule 2.6(1);

d) Nothing will be struck from the Plaintiffs’ Amended Statement of Claim, Further Amended at this time;

e) Mr. Sidorsky’s request for a prospective and contingent costs order will not be granted; and

f) The Defendant will receive costs of this application based on Column 1 of

Schedule C to the Rules . Heard on the 13th day of July, 2012. Dated at the City of Calgary, Alberta this 17th day of August, 2012. C. Jones J.C.Q.B.A. Appearances: Cindy L. Champagne, Self Represented for Plaintiffs/Defendants by Counterclaim B. Adam E. Brener, for the Defendant/Plaintiff by Counterclaim