Law Society of Alberta v Beaver, 2016 ABQB 250

Court of Queen ’ s Bench of Alberta Citation: Law Society of Alberta v Beaver, 2016 ABQB 250 Date: 20160504 Docket: 1603 01216 Registry: Edmonton Between: Law Society of Alberta Applicant - and - Shawn Beaver Respondent _______________________________________________________ Memorandum of Reasons for Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ Introduction [ 1 ] On February 4, 2016, I heard an application by the Law Society of Alberta (LSA) against Shawn Beaver (Beaver), arising

out of an Originating Application filed on January 25, 2016, which sought a four part declaration, a three

part injunction and two otherdirections, in relation to allegations that, notwithstanding his suspension as a member of the LSA, a Custodianship Order, and anUndertaking (the latter two as defined, infra), Beaver continued to practice law, contrary to the Legal Professions Act, R.S.A. 2000, c. L-8 (the Act). In support of the Originating Application, on January 27, 2016, the LSA filed the affidavits of Paule L. Armeneau(Armeneau Affidavit) and John Dooks (Dooks Affidavit).

Beaver relied on the affidavit of Jacqueline Bunn, filed January 28, 2016(Bunn Affidavit), apparently filed to provide a background to the Undertaking, reached by agreement, after the LSA had concerns aboutBeaver allegedly practicing law. [2] Following the review of the material filed by the parties and arguments heard on February 4, 2016, by an oral decision onthat day (Oral Decision), I specifically granted the injunction, implicitly made the declarations, and adjourned sine die the directionssought.

While the Originating Application came before me as an interim application, with a full and final hearing scheduled to follow ina few days, at the end of the hearing, the parties having no more submissions, it was agreed that it would be a final order. The formalterms of my order are set out in the Injunction Order dated February 4, 2016 and filed on February 9, 2016. [3] In more detail, the Originating Application sought: declarations (

a) and (

b) that the “[o]ffering to provide the servicesdescribed in the website www.beaverlaw.ca constitutes the business of the practice of law ... [and] practicing as a barrister and solicitor”;and (

c) and (

d) that “[t]he carrying on by Shawn Beaver of the business of Beaver Legal Consulting is the business of the practice of lawand is subject to the order of Justice Yamauchi dated May 26, 2015 in Action 1501-05468” (Custodianship Order) and “is a breach of theundertaking given by Shawn Beaver to the Law Society of Alberta on December 23, 2015” (Undertaking). The three

part injunctionsought was to enjoin Beaver from (a) “[p]racticing as a barrister and solicitor”; (b) ‘[r]endering any legal service to any person” (whichthe LSA argued was the effect of the Undertaking); and (c) “[c]arrying on the business of Beaver Legal Consulting or providing to anyperson the services described in the website www.beaver law.com”. As the application for directions was adjourned sine die, withoutdecision, I will not delineate the directions sought.

Decision and Reasons [4] In granting my Oral Decision, I gave relatively brief oral reasons (transcript p. 44, line 11 to p. 45, line 16, and p. 45, lines 22– 33) hereinafter described in the format of TR 44/11 – 45/16 and 45/22 - 23). This Memorandum of Reasons for Decision(Memorandum) should be read along with those oral reasons.

I also indicated that I might issue supplementary reasons (TR45/19-20).[1]Furthermore, while I did not undertake to give written reasons, I indicated, inter alia, that “if I feel it necessary I will do so”, “Ireserve the right to issue further reasons elaborating on what I have said orally” (TR47/6-15). After some thought, I came to the opinionthat I should better reflect in writing the explicit considerations I had in mind in coming to my conclusions in my Oral Decision, that arebroader than some of the, perhaps only implicit, reasons in my Oral Decision.

Thus, I ordered a transcript of the hearing and OralDecision, receiving it on March 10, 2016. Since that time my

schedule has not permitted me to conclude this written Memorandum untilnow. [5] I am aware of the fact that, in this interval, my Oral Decision has been appealed to the Court of Appeal. However, I have notreviewed the Notice of Appeal or any material that may have been prepared or filed in respect of the appeal.

I do, however, understand,and have read, the appellate decisions that considered a stay sought of my Oral Decision, for a specific purpose and denied (2016 ABCA59), and, later, for general purposes, granted partially, under conditions, to permit Beaver to act as an agent before inferior tribunals andProvincial Court, reportedly to the extent permitted by statute, pending appeal of my Oral Decision (2016 ABCA 67). [6] I am well aware of the law, in both the criminal context (which this is not) and the civil context (which this is), thatadmonishes trial and motion judges from writing reasons for oral decisions where the result only was delivered, or adding to oral reasonsfor such an oral decision, which had the effect of addressing matters not underlying the reasons for the initial oral decision but to addressmatters raised on appeal.

However, as noted, I have not reviewed any of the appeal material and I merely write, with one exception(discussed infra), to better articulate, with a view to being helpful to the Court of Appeal, the more detailed reasons behind the OralDecision that I gave. [7] Specifically, in the context of criminal law, from R. v. Teskey, 2007 SCC 25, [2007] 2 SCR 267, on appeal from the AlbertaCourt of Appeal (2006 ABCA 191), inter alia, the following principles appear: (

a) judges benefit from the presumption of integrity, which encompasses the notion of fairness and impartiality, which means thatreasons are presumed to reflect the reasoning underlying the decision; (

b) the presumption of impartiality and integrity may be displaced and rebutted in a particular case, based on cogent evidence, if themaintenance of the presumption is not able to be objectively demonstrated to a hypothetical informed and reasonable observer – i.e. ifthat observer might (para. 21) “apprehend that the reasons constitute an after-the-fact justification of the [decision] rather than anarticulation of the reasoning that led to it”; (

c) judges are not precluded, per se, from announcing a bare decision with “reasons to follow”, nor does delay in doing so, in itself, giverise to the apprehension of the prohibited reasoning, provided that there remains the necessary close unbroken link between the decisionand the reasons (I would add, often more difficult, when the appeal is filed, figuratively, on walking out the courtroom door from an oraldecision); and (

d) judges must not, in such written reasons for decision, engage in “result-driven reasoning”. [8] In a civil contest, Crocker v. Sipus (1992), 57 O.A.C. 310, , per Arbour J.A. (as she then was), relied uponin Teskey at para. 16 (see also para. 17 in support), is authority that there is/are often good reason(

s) to deliver a decision afterdeliberations, with reasons to follow in whole or in part. Indeed, the reason here at Bar was to immediately enjoin the activities of Beaverwhich the LSA alleged, and the Court agreed, were in breach of the Act, the Custodianship Order and the Undertaking. Arbour J.A. alsostated (at unnumbered para. 5):

Careful deliberation, expeditious disposition and the giving of comprehensive reasons are often competing goals of justice in busy trialcourts.... The mere filing of a notice of appeal after the disposition has been announced does not bar the consideration on appeal of thereasons released subsequently. [9] In addition to the application of these principles, I believe (although it may be for others to determine) that my Oral Decision,in itself, meets the “test of sufficiency” from R. v.

Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26 (Teskey, paras. 2, 11 and 15), and thatthe reasons in this Memorandum better reflect the full reasoning then present and underlying, but not fully articulated in, my OralDecision. [10] This addressed, I move on to set out the issues, some of the law, facts that I found from the evidence in this case, the positionstaken by the parties and the analysis leading to the decision in my Oral Decision.

Issues [11] The LSA argued that Beaver has been practicing law and acting as a barrister and solicitor contrary to s. 106(1) of the Act,arising from his suspension, the Custodianship Order and the Undertaking. [12] Beaver argued, inter alia, that he was merely acting as an agent, where permitted by statute to appear before the ProvincialCourt, as he was permitted to do by the exemption from s. 106(1) of the Act, by virtue of s. 106(2)(

l) of the Act, and was not practicinglaw. However, Beaver acknowledged (para. 4 of page 2 of Exhibit 6 of the Bunn Affidavit), and at the hearing, that, “as a suspendedmember ... Beaver is not permitted to practise law”. In the result, Beaver framed the issue (Bunn Affidavit, Exhibit 6, pages 2 and 3,para. 4) as “whether a suspended member ... is prohibited by the Act from carrying on business as an agent that is a business open to mostnon-lawyers in Alberta” under s. 106(2)(

l) of the Act, and asserted that such activities are “not the practice of law”. [13] Beaver also raises s. 106(3) of the Act which says that the exemption in s. 106(2)(

l) of the Act does not apply to a “personwho is disbarred”, but it makes no reference to a suspended lawyer. Beaver is not the former, but the latter. [14] These issues raise the definition of what is the “practice of law”, and whether s. 106(3), by referencing disbarred lawyers,cannot also apply to suspended lawyers, or alternatively, whether it can also apply, notwithstanding that provision. Practice of Law [15] The Act refers, in numerous places, to “practising as a barrister and solicitor”, but it does not specifically define either“barrister or solicitor” or the “practice of law”.

The closest that it comes is in s. 102(1) which provides that “Members of the Societyshall be known and designated as barristers and solicitors”. Beaver was a Member of the Society, but his membership has beensuspended, and thus, it appears he would not currently be a “barrister and solicitor” under this broad definition. Under s. 102(2), “[a]ctivemembers [of the Society] are officers of the Court of Queen’s Bench and all other courts of record in Alberta and have a right ofaudience in those courts”.

Section 1(

a) of the Act defines, for the purpose of the facts herein, “active member” as “a member other than . .. a member whose membership is under suspension”. As, by this definition, Beaver is not an “active member”, but a suspended member.The main prohibition is in s. 106 (1) of the Act, under the heading “Practice of law” (as noted, not specifically defined): 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, .... It follows, that, because Beaver is not an “active”, but is rather a suspended, member of the Society, he cannot “practice [law] as abarrister or as a solicitor at any time,” or appear in any civil or criminal court, unless he qualifies for an exemption under s. 106(2).

Doesthe latter mean that, provided (based on Lawrie (infra)) he is a mere agent under s. 106(2)(l), he is not practising as a barrister andsolicitor? [16] As may be relevant to discussions below about “passing off”, s. 107 of the Act, under the heading “Misrepresentation as toprofessional status”, provides that “[n]o person shall, unless the person is an active member of the Society, hold out or represent that theperson is ... lawfully entitled to practice law or to carry on the practice or profession of a barrister and solicitor”. [17] However, notwithstanding the dearth of

definitions in the Act, a number of authorities provide some

definitions and words ofclarity that may be more helpful. [18] Côté J.A., on behalf of the Court, at paras. 12 - 13 of Lameman v. Alberta 2012 ABCA 59, said: ... in the Act, s. 106 ... the most important phrase is “act as a barrister or as a solicitor in any court...”. ...I have absolutely no doubt that a non-party appearing in a court and giving argument or leading evidence on behalf of the parties,ordinarily comes within that phrase. That is all the more clear when that person’s ordinary profession is that of a barrister. (Emphasisadded). [19] In R. v. Nicholson, 1979 ALTASCAD 54 , [1979] A.J.

No. 589, 14 AR. 450, 8 Alta. L.R. (2d) 299, the Court ofAppeal relied, at para. 19, on the following passage from Florida Bar v. Town (1965), 174 So. 2d. 395 (S.C. Florida), at 396-7: It is generally understood that the performance of services in representing another before the courts is the practice of law. But the

practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and thepreparation of legal instruments, including contracts . . .

We think that in determining ... [what] constitute[s] the practice of law it is safe to follow the rule that if the giving of such advice andperformance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and propertyof those advised and served requires that the persons giving such advice possess legal skill and knowledge of the law greater than thatpossessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course ofconduct constitutes the practice of law. (Emphasis from the original deleted, but new emphasis added.) [20] Later, at para. 25, reliance was put on a passage from People v.

Alfani (1919), 125 N.E. 671 (NYCA), of which the followingis a part: Counsel and advice ... the drafting of legal documents of all kinds ... are activities which have long been classed as law practice. TheLegislature is presumed to have used the words as persons generally would have understood them, and not being technical or scientificterms, ‘to practice as an attorney at law’ meant to do the work, as a business, which is commonly and usually done by lawyers here inthis country. (Emphasis added.) [21] The Ontario Court of Appeal, in Law Society of Upper Canada v. Stoangi, (ON CA), [2003] O.J.

No.1110, 64 O.R. (3d) 122, at paras. 8-9, noted that neither the Ontario legislation nor the Law Society of Upper Canada defined “practicingas a barrister and solicitor” but that the similar Acts in British Columbia, Manitoba, Newfoundland and Labrador, and Prince EdwardIsland define the “practice of law” to include “giving legal advice” for a fee or expectation of a fee, and, as supported by a number ofauthorities, that “[i]n Ontario, there is long-standing law which has interpreted ‘practising as a solicitor’ to include advising another onlegal questions”.

In the result, the Court found in relation to Stoangi, a disbarred lawyer, at para. 12: The evidence in this case supported the inference that the appellant was providing ongoing legal advice to members of the public in twoseparate matters. In our view, it was open to the application judge to conclude that the conduct of the appellant amounted to practisinglaw or acting as a lawyer.... [22] In dealing with respondents who were mostly ex-police officers providing advice and representing persons under theManitoba Highway Traffic Act, Kennedy J., in Law Society of Manitoba v. Lawrie, (MB KB), [1989] M.J.

No. 383, 5W.W.R. 229 (Man. Q.B.), held that the respondents were: . . . counselling and advising their customers on whether or not they have a legal defence, and in representing them in the appropriatecourt are performing all of the tasks that a barrister and solicitor would do before the court, including the advocating of a dismissal basedon reasonable doubt, the

interpretation of the Highway Traffic Act and the like. This conduct is clearly conduct performed by barristersand solicitors, and ... they are acting as barristers and solicitors . . . This does not help too much in our case, in one sense, because the services of an “agent” (not defined and for which there is no referenceto providing services as a “barrister and solicitor”) are an exception in s. 106(2)(

l) of the Act, and there did not appear to be such anexception in the Manitoba legislation. On the other hand, here in Alberta, it raises the question as to where is the line between what anagent is permitted (even without “rules”, by acquiescence) to do, in comparison to what a barrister and solicitor is licenced to do. Perhapsthis is why the LSA argued (see infra) that it is impossible to police what Beaver is doing. [23] Scarlett v. Farrell, 2014 ONCJ 194, [2014] O.J. No. 1913 (Sherr, J. – Ont. C.J), as with the case at Bar, dealt with asuspended lawyer.

The Court talked about the policy considerations of the Law Society enforcing its legislation, in relation to integrityand honesty (inter alia, paras. 29 and 31), which I don’t reference specifically because they are almost axiomatic and not raised as anissue before this Court, although the conduct alleged of Beaver suggests that there were issues alleged with respect to integrity andhonesty in his suspension. Sherr J. also noted (at para. 33) that, in Kopyto v. Ontario (Attorney General), (ONSCDC), [1997] O.J.

No. 3935 (Bean J.) held: “a disbarred solicitor ought not to appear … in a “non-professional” capacity when hecannot appear in a “professional capacity”. The Divisional Court, in dismissing the appeal, acknowledged that the decision of Bean J.“displays great wisdom and common sense”. In the case at Bar, of course, Beaver is not disbarred but is rather suspended, but the samelogic would seem properly to apply – if Beaver cannot appear in his professional capacity, he ought not be allowed to perform the sameservice in a non-professional capacity.

However, even more directly pertinent to the issues at Bar, Sherr J. also noted (at paras. 36 - 8),relying on Pires v. Dedvukay , 2010 ONCJ 8, [2010] O.J. No. 294 (Katarynych J. – Ont. C.J.), that what the former member of theSociety (who was permitted to resign from the Society) wanted to do “is precisely what [the Society’s] order prohibits”, and that thereasoning “applies just as much to a lawyer under suspension as it does to a lawyer who was permitted to resign”, adding that “[h]ecannot do through the back door what he is prohibited from doing through the front door”. [24] In Brown v.

Alberta Dental Assn., 2002 ABCA 24, [2002]A.J. No. 142, the Court, in addition to discussing the objectives ofprofessional regulation (para. 30), at paras. 17 – 21, noted the dictionary definition of “practice”, which would include, in our context,the “practice of law” and “professional work, business or connection, of lawyer”, “[t]he carrying on or exercise of a profession oroccupation, especially of law”, and similar

definitions. [25] In Hutton v. Law Society of Newfoundland, (NL SC), [2000] N.J. No. 181, 187 D.L.R. (4th) 185 (Nfl.S.C.A.D. – Rowe J.), the Court tackled the issue of the role of agent v. barrister and solicitor, in the case of a non-practising lawyer whosought leave to appear in provincial court on

summary conviction matters, and, in concluding that an agent cannot give legal advice, said (at paras. 15 - 16): ... while Mr. Hutton may say that he does not appear as counsel, but rather as an agent, that is not the substance of what would occur.Mr. Hutton is a lawyer and for him to say that he is appearing before a court on behalf of a person as anything but a lawyer, isdisingenuous. ... while Mr. Hutton may seek diligently to act only as an agent in

summary conviction proceedings, almost certainly in the course of

doing so he will provide ‘legal advice’, which ... [he] is also prohibited from doing while a non-practising member. (Emphasis added). [26] At para. 17, the Court noted the purposes of the professional regulator, and made clear that, if Mr. Hutton was engaged as anagent, but the party engaging him relied upon him as a lawyer, the Law Society could not regulate his conduct.

In this latter respect, theCourt added (para. 19) that explanations to distinguish between the two positions would be confusing and not be understood by normalcitizens: “... it is too esoteric to explain successfully to an accused: first, that while Mr. Hutton is a lawyer, he does not appear before thecourt as a lawyer; second, that because he has non-practising status he cannot give legal advice...”. (Emphasis added).

All these sameconsiderations apply to the case at Bar, subject to the differences in legislation. [27] The LSA also relied upon my own case of 908077 Alberta Ltd. v. 1313608 Alberta Ltd., 2015 ABQB 108, [2015] A.J. No.249, at para. 24 (addressing policy considerations) – see also Brown, at para. 30 and obiter from Burton v. Burton, (1996) (AB KB), 39 Alta. L.R. (3d) 201 (QB – Veit J.).

However, I do not find them specifically determinative nor otherwise too helpfulin this context, especially as the broad policy considerations of the protection of the public by the LSA regulation of its members is not inquestion in this case. Section 106(3) [28] It is clear that the effect of s. 106(3) is that it expressly provides that disbarred lawyers cannot be agents under s. 106(2)(l).Does that mean, by exclusion of “suspended lawyers,” that they can be agents? [29] Unlike Alberta’s s. 106(3), Ontario does not have an express prohibition of disbarred lawyers acting as agents. Stoangi was adisbarred lawyer.

The LSA argued (TR 5/24 29) that the Stoangi case was thus “analogous to here where we don’t have an expressedprovision against suspended lawyers, but the same thing applies”. [30] It was my view at the hearing (see footnote 1) and remains that, while the express provision in s. 106(3) applies to disbarredlawyers, as a matter of statute, it does not mean that a similar provision cannot apply to suspended lawyers, as a matter of common law. [31] However, Beaver argued (TR 30/39 – 31/4, and 30/16 - 20) (without authorities and much clarity, and to which there was noresponse from the LSA) that, as a matter of statutory

interpretation, a specific provision means that non-specified considerations do notapply. Without authorities or clear argument, I am unable to expressly and definitively address Beaver’s submissions on the theoreticalstatutory

interpretation principles he says are germane to this application. Thus, as the exception to what I said supra (at para. 6), I nowaddress the issue by supplementary reasons. [32] The modern approach to statutory

interpretation requires courts to consider context in the construction of statutory language:Bell ExpressVu Ltd Partnership v. Rex, 2002 SCC 42, at para. 27. This modern approach “recognizes that statutory

interpretationcannot be founded on the wording of the provision alone. Indeed, the words of the particular provision must be considered in light of thelegislation as a whole”: AUPE v. Lethbridge Community College, 2004 SCC 28, at para. 26 (see also Mueller v. Oko, 2015 ABCA194). In fulfilling their obligation to follow this approach to statutory

interpretation, courts are obligated to read the words of

an act in its“entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intentionof [the legislature]”: Rizzo & Rizzo Shoes Ltd, Re, [1998] 1 SCR 27, . [33] The object and purpose of the Act, as I perceive it, is to regulate the legal profession in the public interest, including: (1)ensuring that lawyers (i.e. members of the LSA) adhere to certain standards, and (2) protecting the public. [34] With that context in place, I now consider the wording of ss. 106(1), 106(2), and 106(3) in their ordinary and grammaticalsense.

These sections, when read together, contemplate three distinct groups of people: (1) those who are active members of the LSA;(2) those who are not active members of the LSA; and (3) those who were formerly members of the LSA, but are now disbarred. Thosewho currently are active members of the LSA are governed by s. 106(1). To practice law, this

section requires them to be “activemembers” of the LSA. Because a suspended member is not an “active member” (see s. 1(

a) of the Act), a suspended member cannot dothose things set out in s. 106(1) (i.e. practice law). As a matter of statutory

interpretation, someone who was at one point in time, anactive member of the LSA, but no longer is (and is not disbarred), could, potentially, fall into the exceptions identified in s. 106(2),including the narrow exception in s. 106(2)(l). In my view, the purpose of s. 106(3) is to clarify that a disbarred former member of theLSA fits into a distinct category and that is meant to limit the applicability of s. 106(2)(l).

It was, and is, my view that does not mean thata suspended member could not be similarly limited from the applicability of s. 106(2)(l). [35] Because the LSA retains governance over suspended members, such people are only permitted to practice law if they fall intothe limited exception identified in s. 106(2)(d). This section, in conjunction with s. 108, specifically permits suspended members to beinvolved in the practice of law, but only in a very limited capacity. Since s. 106(2)(

d) and s. 108 specifically contemplate the limited rolethat suspended members can undertake, it would be an absurdity to allow suspended members a broader ability to, in effect, practice law,under s. 106(2)(l). [36] The very purposes of the Act would well be thwarted if Beaver were permitted to act to, in effect, practice law, under the guiseof being an agent by virtue of s. 106(2)(l): Lameman, at paras. 12 – 13 (supra). As Iacobucci J stated in Rizzo & Rizzo Shoes, at para. 27: … It is a well established principle of statutory

interpretation that the legislature does not intend to produce absurd consequences.According to [Professor] Côté, supra, an

interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it isextremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of thelegislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to

interpretationswhich defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).(Emphasis added).

[37] As noted, Beaver’s submissions are not clear as to how this Court should interpret the Act. He may be referring to a rule ofinterpretation captured by the legal maxim expressio unius est exclusio alterius. This maxim is defined in Black’s Law Dictionary, 8thed, as “a canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative” (subverbo “expressio unius est exclusio alterius”). [38] In his treatise on legislative

interpretation, The

Interpretation of Legislation in Canada, 4th ed, (Thomson Reuters Canada:Toronto, 2011), Professor Pierre-André Côté indicates that the expressio unius maxim is a type of “a contrario argument”. To illustratethe concept, Professor Côté poses a hypothetical question (at p. 356): “does a municipal bylaw requiring dogs to be leashed apply to theowner of a tame cheetah?” The response that the cheetah need not be leashed and can roam as it pleases because a cheetah is not a dog isan example of a contrario reasoning.

Here, the comparison is between a person found guilty of conduct sufficient for disbarment (s.106(3)), compared to one allegedly guilty of such conduct. [39] Beaver’s arguments appear to fall only into the following category of reasoning. To frame his argument in the context ofProfessor Côté’s example, ss. 106(2)(

l) and 106(3) are designed to apply to disbarred people (i.e. the dogs) and do not apply to asuspended member (i.e. the cheetah). In essence, Beaver says that while a person who is disbarred cannot be an agent in certain matters,a suspended member can (because a suspended member is not a disbarred person).

If the legislature intended for s. 106(3) to apply tosuspended members, it would have said so. [40] While there may be some attractiveness to this argument, Professor Côté cautions against the use of a contrario reasoning (atpp. 359-362): While a contrario reasoning... is widely used, it is among the interpretative arguments that must be used with the utmost caution.

Thecourts have often declared it an unreliable tool, and... it is frequently rejected. … Since it is only a guide to the legislature’s intent, a contrario reasoning should certainly be set aside if other indications reveal that itsconsequences go against the statute’s purpose, are manifestly absurd, or lead to incoherence and injustice that could not represent thewill of the legislature. (Citations and footnotes omitted). [41] Moreover, the Supreme Court of Canada has also advocated caution in relying on the expressio unius rule on severaloccasions: Congrégation des Frères de l’Instruction chrétienne v.

School Commissioners for the Municipality of Grand Pré, [1977] 1SCR 429, at 435, ; and Murray Bay Motor Co v. Bélair Insurance Co, [1975] 1 SCR 68, at 74, .Notably, Laskin C.J. stated that the expressio unius maxim “provides at most merely a guide to

interpretation; it does not preordainconclusions”: Jones v. New Brunswick (Attorney-General), [1975] 2 SCR 182, at 195-196, . [42] In AYSA Amateur Youth Soccer Assn v. Canada Revenue Agency, 2007 SCC 42, Rothstein J. (writing for the majority) re-iterated the caution that courts must employ, in the face of an expressio unius argument, an emphasized application of the modernapproach to statutory

interpretation (see paras. 15-18). Very recently, the Ontario Court of Appeal did just that in Fleming v. Massey,2016 ONCA 70. Courts should not apply the expressio unius rule to one specific provision if doing so would fundamentally underminewhat the Legislature is trying to achieve: Fleming at para. 45. [43] Using the modern approach to

interpretation of the Act, I decline to read ss. 106(2)(

l) and 106(3) in a way that authorizesBeaver to appear as an agent because he has not been disbarred. Boards, Tribunals and Courts Other than In/Within S. 106(2)(l) [44] The LSA pointed out that Law Society of Upper Canada v. Chiarelli, 2013 ONSC 1428, [2013] O.J. No. 1253 (Goldstein J. -Ont. S.C.J.), at para. 12, refers to a non-lawyer appearing before the Ontario Landlord and Tenant Board, where the Court said: I agree with the Law Society that when the Respondent appears before the Board, he is providing legal services.

Appearing before anadministrative tribunal as a paid representative to make submission, examine witnesses, and cross-examine witnesses is quintessentiallylegal ... work. [45] Counsel for Beaver did provide authorities and submissions on Alberta legislation that does authorize the appearance ofagents, beyond the Provincial Court, that deserves some consideration. [46] In addition to s. 106(2)(

l) of the Act, certain provisions in Alberta statutes expressly authorize agents to appear at hearingsbefore: • the Attendance Board, under s. 127(1)(m)(ii) of the School Act, RSA 2000, c. S – 3; • the Law Enforcement Review Board, under s. 20(1)(n)(iii) of the Police Act, RSA 2000, c. P – 17; • the Privacy Commissioner, under s. 69(5) of the Freedom of Information and Protection of Privacy Act, RSA 2000, c. F – 25; • Provincial Court, under s. 27(1) and 31(3)(b)(ii) of the Provincial Offences Procedure Act, RSA 2000, c. P – 34 (by the

definitionsections, “justice” means a justice of the peace or a judge of the Provincial Court), so is presumably already covered by s. 106(2)(

l) ofthe Act; • a justice of the peace or a Provincial Court Judge in Civil Claims, under s. 62(1)(

b) of the Provincial Court Act, RSA 2000, c. P-31(the same point applies as above regarding the Provincial Offences Procedure Act); and

• a

Summary Conviction court, under ss. 800(2) and 802.1 of the Criminal Code , RSC, 1985, c. C – 46, provided that the accused could not be liable, on conviction, to imprisonment for a term of more than 6 months. (See infra ). In the latter regard – see the

interpretation of this in: R v. Fricke , 2010 ABPC 280 , at paras. 35 and 39-41 ; R. v. May , 2008 ABPC 59 at paras. 51 and 54-55 ; R. v.

Trudeau , 2012 ABQB 14 (Hembroff J.), dealing with situations where there were multiple offences charged, which effectively ended the dispute between Spiry ( infra) and May , by concluding that each charge should be treated separately not cumulatively (again, the same point applies as to the Provincial Offences Procedure Act , but, as I understand it, this would not include appearing as an agent in an impaired driving case, as imprisonment of over 6 months is available for impaired driving – conceded by Beaver - see TR 29/1 – 19); and, by inference, R. v.

Spiry (infra) . [ 47 ] Thus, it is clear by CC s. 802.1 that an agent cannot appear in cases where the accused might be liable to a sentence of more than 6 months. [ 48 ] R. v. Spiry , 2005 ABPC 309 , [2005] A.J. No. 1537 (Fradsham P.C.J.), with specific reference to para. 36, is an example of appearance in Provincial Court Criminal, but only where the sentence could only be 6 months or less. By way of dicta , in footnote 6, the learned Provincial Court Judge indicated “there is no suggestion that [the agent] is disbarred, so section 106(3) of the Legal Profession Act , supra , does not apply”.

This dicta statement is not binding on me at all or in the different context of what was before the learned Provincial Court Judge, and in the context of the facts before me at Bar. It does not mean that, as a matter of common-law principle, the same provision could or should not apply to a member that is suspended. [ 49 ] As noted, s. 106(2) (

l) allows agents to appear before Provincial Court when permitted by statute. It makes no provision for appearances before boards and tribunals, but it will soon be clear that Beaver has represented his ability to do so as an agent, and his Counsel argued that an agent is expressly permitted by other Provincial legislation referenced above. Does the failure of s. 106(2) (

l) to recognize this mean that non lawyers can appear before such boards and tribunals, but a suspended lawyer cannot? [ 50 ] Additionally, although no statutory provision is referenced, in practice agents apparently also appear before the Alberta Labour Relations Board: Ferraro’s Ltd. (Re) , [1992] Alta. J.R.B.R. 578, at paras. 15(

e) and (f). [ 51 ] In each of these situations, the question is whether those provisions “trump” the reference only to Provincial Court in s. 106 (l), or must they be read together with s. 106(2) (l), in the context of prohibitions under s. 106(2) (l), unless otherwise expressly authorized in other statutory provisions? I find that the latter is the best and most principled position.

However, it would also mean that, absent such an express provision in a statute, appearing as an “agent” (i.e. the Alberta Labour Relations Board) would not be allowed in law, such that the provisions of s. 106(1) would apply. [ 52 ] This whole issue of agents got some debate in the hearing where I put to Counsel for the LSA why an ordinary citizen, or a retired (without sanction) non-member lawyer or judge, could appear as an agent, but as the LSA argued, a suspended lawyer cannot. In effect, what is the difference in, or the line between, such people?

His answer ( inter alia TR 6/29 – 7/23; TR 7/37 – 13/15; TR 39/5 - 39), which I find convincing, was, in effect, that all such persons were not a lawyer who was either disbarred (to which s. 106(3) applies) or suspended, which he suggested should be treated the same – when due to proven or alleged misconduct, for which the LSA has a duty to protect the public. Moreover, relying on Nicholson , he argued that the rights of an agent were to appear on behalf of a person, but not to give legal advice.

In effect, as I understood the argument, based on what he called analogous cases ( Scarlett , Kopyko and Hutton ), it was that the public know, when they hire an agent, that they aren’t getting a lawyer, but when they hired a suspended lawyer they might be confused as to whether they were getting a lawyer. In other words, as in Hutton , it was “too esoteric”.

Finally, he argued ( inter alia TR 11/30 – 2; TR 35/39 – 40/3) that Beaver “should not be doing any of the things that he did as a lawyer” and (TR 13/2 – 6) “if there was a suspension where ... you are not allowed to practice law, then ... it would bring the administration of justice into disrepute” and you shouldn’t be able to do indirectly what you can’t do directly.

Beaver’s Counsel acknowledged (TR 29/24 – 30/18) that the right of an agent to appear is only if that agent is “not otherwise prohibited”, but argued that by s. 106(3) only disbarred lawyers are prohibited. [ 53 ] The LSA also argued (TR 13/36 – 14/30; 18/3 – 40; 19/25 - 40) that the practice of law and the business of the practice of law that Beaver allegedly was carrying on, is now carried on by the Custodian, and Beaver can’t carry it on independently while the Custodianship Order in place – “a suspended lawyer cannot practice law of any sort...”. [ 54 ] With these considerations in mind, I can look at the evidence and the facts that I find therefrom.

Facts [ 55 ] It is apparent to all who knew him that, before his suspension, Beaver had been a very successful barrister and solicitor resident in Edmonton, with practice in Edmonton and various parts of Alberta. As the website of his firm at that time set out (Armeneau Affidavit, at Exhibit D), Beaver held a BA (Honours) and LL.B (Distinction) and was a member of the Law Societies of Alberta and the Northwest Territories. His law practice operated out of Beaver House at 401, 10158 103 Street, Edmonton, Alberta, with a phone number of (780) 428-3100 and an email address of sbeaver@beaverlaw.ca.

The latter two are relevant because, after his suspension (referenced infra ), he continued to use the same telephone number and same email address. [ 56 ] By letters dated May 28, 2015 (Exhibit B to the Armeneau Affidavit), notice was given that the Benchers of the Law Society had suspended Beaver’s membership in the LSA, and his licence to practice law, pursuant to s. 63 of the Act . [ 57 ] Two days earlier (the sequencing not really explained at the hearing, but also not raised as a relevant issue in the arguments before me, except to note that a custodian can be appointed for other than misconduct – TR 20/26 - 34), on May 26, 2015, a member of this Court issued an Order placing with a custodian the “Custody of the Property and the business of the practice of law of Shawn Allan Beaver . . . and Shawn Beaver Professional Corporation . . . . (Custodianship Order). [ 58 ] After some apparent concerns by the LSA (see the Bunn Affidavit) that Beaver was continuing to practice law notwithstanding suspension and the Custodianship Order, and by agreement, on December 23, 2015, Beaver executed an undertaking

(Undertaking), recognizing the interim suspension pursuant to s. 63 of the Act effective May 28, 2015, based upon inter alia “an investigation regarding a self-reported shortage in my trust account in the amount of approximately $180,000.00”. In the Undertaking, Beaver acknowledged that he had “commenced self-employment as a ‘legal agent’ and ‘legal consultant’ with Beaver Legal Consulting”, and that the Law Society was concerned “that I am practicing law as a suspended lawyer”.

In the Undertaking, he undertook not to: 1. conduct any of the legal work associated with any client files or accept any new legal work for existing clients; 2. make contact with clients for the purpose of providing legal services; 3. create new lawyer-client relationships; 4. in any other manner whatsoever, render any legal services or take any action that assists or results in the continued operation and management of my suspended legal practice; 5. be retained or employed in any capacity having to do with the practice of law or the provisions of legal services ; or 6. occupy space or partner or associate with any other active member of the Law Society of Alberta. (Emphasis added). [ 59 ] Notwithstanding the Undertaking of December 23, 2015, on January 6, 2016 (Armeneau Affidavit Exhibit F), in what I find to be a clear contravention of at least undertakings #1 and #2, Beaver appeared as agent for an existing client in Provincial Court in Westlock to set a trial date and to appear as agent at the subsequent trial. [ 60 ] Notwithstanding the Undertaking of December 23, 2015, on January 13, 2016, as seen in the Dooks Affidavit, he was contacted at the same number that he had used in his law practice, and Dooks sought and obtained legal advice regarding a feigned impaired driving case.

Counsel for Beaver said (TR 34/22 – 27) that Beaver was “embarrassed” by these facts, but it is more than that – it is a clear breach of at least undertaking #3, and maybe #5. [ 61 ] These two incidents are clear breaches of the Undertaking, and in themselves, prima facie merit the sanction and restriction of an injunction.

However, the activities and representations of Beaver are broader than those two and show a continued practice of law, in my view. [ 62 ] Prior to the Undertaking, the record shows (Armeneau Affidavit Exhibit G, discussed at the hearing before me at TR 39/39 – 41/2) that, on December 15, 2015, Beaver appeared to “represent” an existing client to set aside a default judgment, wherein, during that hearing (TR5/2 of that hearing), he referred to the client as “my client” and at TR5/9-11 of that hearing (see also TR16/35 of that hearing) acknowledged that he was “acting for the defendant”.

At TR11/26-28 of that hearing, Beaver further made it clear that he had previously acted in the subject matter on behalf of the “client”.

Moreover, at TR12/39-40 of that hearing, he represented that he was “going to run the trial for the defendant”. [ 63 ] In addition to these incidents, the LSA took the position before (see Exhibit 3 of the Bunn Affidavit) and at the hearing, that Beaver’s website under the name “Beaver Legal Consulting” “inherently involves the practice of law” and (Exhibit 3, p. 3, para. 1) that Beaver was doing, but “cannot do indirectly what ... [he has been] directly prohibited ... from doing”.

However, Beaver took the position (Exhibit 4, para. 2 of the Bunn Affidavit and at the hearing) that “[t]he services he is offering are those which non-lawyers are permitted to offer and provide under the ...” Act . Some examples were provided in Exhibit 3 of the Bunn Affidavit, but the website, as printed and attached as Exhibit C to the Armeneau Affidavit is a more clear and detailed reference. [ 64 ] Exhibit C to the Armeneau Affidavit provides evidence from the website of Beaver Legal Consulting.

This deserves a full read by decision makers, because, in addition to the context (discussed below), reading gives a flavour of what representations were being made. Nevertheless, by way of

summary, such a review will disclose a number of representations made by Beaver, after his suspension and the Custodianship Order, relevant to the allegations of the LSA that he was practicing law. That

summary, with my comments added, are as follows (some of the references are repetitive in the original text - the pages of the Affidavit are not numbered but I have numbered them consecutively from the beginning to p. 33 – references are to those page numbers): - 1. “20 years of legal experience and expertise in negotiating, cross-examination and out-of-court resolution”. The same representation also appears on pp. 6, 9, 12, 16, 22 and 25. Comment : Beaver is emphasizing the length of his experience, and his expertise, as a lawyer . - 3. “. . .

LL.B. (Distinction) A litigator by trade, and 20-year courtroom lawyer , Shawn has tried cases successfully in all levels of Court . . . . . . graduating as the gold medalist in law in 1993. Shawn also taught at the Law Faculty, University of Alberta, from 1997 – 2015. ‘There is no issue I have not tried, nor am afraid to try.’ Shawn will always try to settle your case without the necessity of you having to go to court or testify. If a settlement is not possible, he will fight for you in the final battleground – the courtroom.

Shawn offers his services as a legal consultant and legal agent with 20 years’ experience in cross-examination and out-of-court resolution.” (Emphasis added). Comment : Beaver emphasized his high achievement in law school, that he taught law, that he had specialized in litigation in all the Courts, and continues to emphasize the length of his experience, his expertise, his success, his fearlessness, and settlement and trial experiences, as a lawyer . I note that the tone is not that this is something that happened in the past, but something that continues currently.

- 4. Reference to “Phone: 780-428-3100” and “Email: sbeaver@beaverlaw.ca ”. Also on pp. 1, 6, 9, 12, 16, 22 and 25. Comment : this is the same phone number and email address that he used in his practice of law before he was suspended (See Exhibit D of the Armeneau Affidavit) and before the Custodianship Order was granted, which is not his to use, but was ordered to be handed over to the Custodian. Moreover, for anyone who knew him before he was suspended and the Custodianship Order was granted, they might consider nothing had changed, notwithstanding these events. - 5.

A disclaimer: “Shawn Beaver practiced as a lawyer in the Edmonton and surrounding area from 1994 to May 2015. He is currently not licensed to practice, facing an interim suspension imposed by the Law Society of Alberta. His case has yet to be heard. No evidence has been called, nor hearing date set.” (Emphasis added). (See also pp. 8, 11, 15, 21, 24 and 33). Comment :

(1) This reservation is accurately stated, but I note that it follows at the end of 2 pages of place names of “Areas Served”, and thus is not tied in with the earlier representations he makes, on the basis of his experience as a lawyer. The LSA also complained about this to Beaver (p. 2, para. 2, of Exhibit 3 of the Bunn Affidavit).

(2) Especially with this separation from the representations as to his background experience and expertise and what he can now do for a client, all in the same site, lay people might well be confused as to what if any limitations there were on his legal ability to continue to do the legal work he was doing. In this regard, the LSA stated (Exhibit 3, page 2, last para. of the Bunn Affidavit) that “members of the public cannot be expected to understand the complex legal implications of retaining an agent who is a suspended lawyer as opposed to an active member” of the LSA – e.g. the “too esoteric” argument ( supra ) from para. 19 at Hutton .

(3) Even before he acknowledged he “is currently not licensed to practice”, he makes the point that he practiced law in the Edmonton area for 21+ years – some lay people might focus on the first sentence and gloss over the remainder, assuming it is merely more of the same.

Note too that he referred to having been a “lawyer” but the phrase “not licenced” does not say “not licenced to practice as a lawyer” (i.e., the last three words clarity are not added). - 9. “Representation of Professionals before Disciplinary Tribunals” Comment : The use of the word “representation” here, and at pages 12 – 13, and many other places on the site, could be, and appears intended to be, interpreted by people as “representing” them as a lawyer. At the hearing, I compared this to “passing off” in the context of trademark law.

At minimum it would be, or might be, confusing to the public – which is a feature of passing off in trademark law. Had he, instead, stated that he could appear as their agent (which he did in the next two references), it would have been less confusing. - 9. “... drafting of contracts and leases” and “Drafting, filing [pleadings, applications, briefs. etc.]” Comment : These matters are clearly part of the practice of law, especially the former. - 12-13.

Same references with respect to “20 years of legal experience”, as well as phone number and email address and the following: “Areas of Expertise” “As a legal agent, the following services are offered” - “Representation . . .” (a number of times in respect of a number of areas of proceedings) Comment : This does not explain what the difference is between lawyer and “legal agent”.

At Exhibit 3 to the Bunn Affidavit, reference is made to “navigating the ambiguous and very fine line between ‘legal agent’ and ‘lawyer’, and there is much to be said about that. - 18. “You will be dealing with Shawn as a legal agent, not as a lawyer, with the benefit of 20 years legal training, courtroom experience and out-of-court settlement expertise. Legal agents are not lawyers. Although some, like Shawn, are formally trained, there is no legal requirement to be so. There is no formal organization regulating legal agents.

Agents do not hold trust accounts, the Law Society does not guarantee deposits with an agent. If a lawyer is required for any reason, one can be referred as necessary.” Below there is again reference to 20 years of legal experience and that Shawn has “successfully defended clients on nearly every type of case”. Comment : This is a more complete disclaimer than at p. 5, namely that he is appearing as a legal agent, not a lawyer (although, again, the difference is not explained).

However, the phrase “... lawyer, with the benefit of 20 years legal training, courtroom experience and out-of-court settlement expertise”, again relates to his experience as a lawyer, not as an agent, and may be confusing to the public. The reference to “legal” in “legal agent”, may add to this confusion.

On the other hand, another way to look at it, which Beaver might have argued (it wasn’t specifically addressed by Beaver at the hearing) is that a potential client would get an agent, under s. 106(2) (l), but with the background and experience of a 20 year lawyer, notwithstanding that the LSA has suspended him from practicing law. - 22. “You will obtain 20 plus years of trial experience for a rate lower than what is charged by most lawyers”.

Comment : This appears not to be a representation that the prospective client is getting merely an agent, but rather a full lawyer at a better fee than lawyers who are authorized to practice law. Note that the wording is not that he is an agent, but rather the innuendo is that he is one of “most lawyers” – he might as well have said “other lawyers”.

In Exhibit 3 to the Bunn Affidavit, this is argued (along with other statements in the website) to be an “obvious message ... that his clients are getting the services of an experienced lawyer for a discounted rate”. - 25 – 31 detailed legal advice with respect to representation in criminal matters in Provincial Court including the law with respect to: “DUI, Impaired Driving” – including possible defences and “to have those with experience review all the evidence against you, as

they may be able to see issues, which are not apparent to a layperson”; “Assault”; “Theft”; “Possession of a Controlled Substance”; “Traffic Tickets”; “Wildlife Act Charges”; “Representation before Professional Association”; “Provincial Court Civil (Small Claims)” (wherein legal advice is given with respect to, inter alia , the very legal subject of limitation dates), and “Wrongful Dismissal or Termination of Employment”.

All of this detailed legal advice includes references, directly or indirectly, to “representation” and includes statements such as “Shawn is prepared to take your matter to trial.” – At page 26 in reference to Impaired Driving, it provides inter alia : “It is worthwhile to have those with experience review all of the evidence against you, as they may be able to see issues, which are not apparent to a layperson. … Shawn will review your file before a plea is entered, and explore all possible defences.

Further, even if you are simply pleading guilty, you may need counsel to avoid the mandatory jail terms indicated in the Criminal Code and asked for by the Crown.” – At p. 27 under the heading ‘Theft’, there is reference to it being “… is a specific intent offence, and therefore if the taking was unintentional, or if the item was taken with “color of right”, these are complete defences, …” – On p. 29 under the heading ‘Wildlife Act Charges’, there is reference to “Having argued many such cases successfully before the Courts, on either a Constitutional or Treaty basis”. – Also, on p. 29, under the heading ‘Provincial Court Civil (Small Claims)’, there is reference to “The general limitation period in Alberta is two years. … you must seek proper advice…”. – And, on p. 30, under the heading ‘Wrongful Dismissal or Termination of Employment’, there is reference to “The law considers … Generally speaking, the Court is looking for … the Court will … a general rule of thumb is ….” Comment : There are several comments here, including: (1) this is clearly legal advice that is being given; (2) as discussed supra , an agent cannot appear on any matter for which a sentence more than 6 months might be given, and impaired driving is one that might be more than that; (3) a prospective client is, likely, a “layperson”, but in some ways, so is an agent – yet, Beaver is representing that he has legal expertise superior to an agent – that can only be as a lawyer.

Specifically, as to p. 26, and references that Beaver “may be able to see issues...” and “explore all possible defences”, that suggests that he would not be acting as a mere agent, but as a barrister and solicitor, doing a legal analysis and giving legal advice.

Moreover, you “may need counsel to avoid the mandatory jail time”, again suggests the need for the advice of a barrister and solicitor, not an “agent” – note too the subtle use of the word “counsel” which, if it is a noun, is the accepted reference to a barrister and solicitor – all potentially confusing to a layperson; (4) as to p. 27 and reference to “specific intent offence”, and “colour of right”, being “complete defences”, this is clearly giving legal advice that one would expect from a barrister and solicitor, not an agent who is merely making an appearance; (5) as to p. 29 and appearing before the “Courts”, at its very best, an agent can only appear in Provincial Court, where, although “Constitutional” issues may be argued, they are often appealed and argued in a superior trial court, or court of appeal, or, even the Supreme Court of Canada (see R. v.

Hirsekorn , 2013 ABCA 242 , leave to appeal to SCC dismissed July 4, 2013); and (6) as to p. 29, under the heading ‘Provincial Court Civil (Small Claims)’, and reference to the “general limitation period in Alberta” and the “general rule of thumb” pertaining to p. 30, under the heading ‘Wrongful Dismissal or Termination of Employment’, these are both matters of legal advice one would expect from a barrister and solicitor, not an agent. [ 65 ] In Exhibit 3 to the Bunn Affidavit is a letter from the LSA to Counsel for Beaver where examples were given and “submissions” made [2] (some of which are referred to above in this Memorandum).

In one, referencing accomplishments by Beaver when he was authorized to practice law, Counsel for LSA said: Such accolades will no doubt be impressive to members of the public, particularly given that Mr. Beaver offers his services at a rate ‘lower than what is charged by most lawyers’. The obvious message is that his clients are getting the services of an experienced lawyer for a discounted rate. Clients will inevitably seek Mr. Beaver’s legal advice and Mr. Beaver will constantly be navigating the ambiguous and very fine line between “legal agent” and lawyer. In light of Mr.

Beaver’s suspension on the basis of very serious allegations of professional misconduct , the Law Society is of the view that the risk to the public in this scenario is simply unacceptable. (Emphasis added). [ 66 ] Later in the communication in Exhibit 3 to the Bunn Affidavit, the LSA states: The Law Society’s position is that services offered by Mr. Beaver as a “legal agent” and “legal consultant” inherently involve the practice of law. Settlements of the kinds of matters referenced in the Website requires that the client have an understanding of the possible outcomes and their relatively livelihood.

Discussions in this regard inevitably involve dispensing legal advice. Mr. Beaver expressly states that if settlement is not possible, he will “fight for you in . . . the courtroom” which implies that he is authorized to and will do so. He offers to draft contracts and pleadings and conduct negotiations, which clearly constitutes the practice of law. The Law Society is also very concerned that Mr. Beaver continues to use and market the telephone number and email address he used as a lawyer . . . .

Former clients are likely to contact him via the phone number or email address they used when he was an active lawyer,

and may reasonably assume as a result that he is still a lawyer. . . . members of the public cannot be expected to understand the complex legal implications of retaining an agent who is a suspended lawyer as opposed to an active member of the Law Society . . . . The Law Society’s position is that Mr. Beaver cannot do indirectly what the Benchers have directly prohibited him from doing. The nature of Mr. Beaver’s advertised services carry an inherent risk that Mr.

Beaver has or will provide legal advice and practice law while he is suspended. (Emphasis added). [ 67 ] The LSA argued ( inter alia , TR 39/12 – 39) that it was clear from all of this, when read together, that Beaver was holding himself out (passing himself off) in his website as the same person who was a lawyer before, with the same phone number and email as before his suspension, and holding himself out (with notice, but no explanations, at some places regarding the fact that he would be appearing as an agent, not a lawyer) as having the ability and legal right to represent people at various levels of hearing and to provide legal advice.

I put this to Counsel for Beaver (TR 32/14 – 27 and TR33/ 5 – 31), and his answer was (TR 34/17 – 32), in effect, it doesn’t matter, because the only restriction against acting as an agent is for a disbarred lawyer under s. 106(3), not a suspended lawyer and that is all that Beaver was doing, not acting as a barrister and solicitor, and that he would restrict himself to things that an agent can do.

However, Counsel for the LSA said (TR 36/9 – 20) that they could not accept such a further potential undertaking, as there is a fundamental disagreement between the LSA and Beaver as to how to classify what he has been doing and intends to do, and (TR 41/2 – 6 and TR 41/40 – 42) that for the LSA, it is “almost impossible to police” what he is doing without requiring that he cannot provide legal services of any sort. [ 68 ] I agree with the LSA’s arguments and conclusion (TR 22/4 – 16) that “it’s pretty obvious that he [was] practicing law and providing legal services” which they say he shouldn’t be doing for three reasons, because: (1) he is suspended; (2) the Custodianship Order gives the control of his right to practice as a barrister and solicitor to the Custodian; and (3) the Undertaking. [ 69 ] The record would reflect that the Beaver website and telephone numbers (exhibits to the Bunn Affidavit) were shut down by the end of 2015.

Legal Provisions [ 70 ] To restate, it is clear from above that s. 106(1) provides ( inter alia ) that: “[n]o person shall, unless the person is an active member of the Society . . ., practise as a barrister or as a solicitor, or . . ., act as a barrister or as a solicitor in any court of civil or criminal jurisdiction.” [ 71 ] It is further clear under s. 106 (2) that s. 106(1) does not apply to a number of activities that are enumerated there. The only one to which s. 106(1) was argued by Beaver to be applicable was: “(

l) 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”. It is this provision that Beaver claims to be performing. [ 72 ] It is also to be noted that, by s.106 (3) provisions of “subsection (2)(

l) does not include a person who is disbarred.” However, Beaver is not disbarred, he is suspended.

Analysis [ 73 ] All of the evidence discussed above from the Dooks, Armeneau and the Bunn Affidavits, and the arguments of Counsel for the LSA, the details of which Counsel for Beaver did not engage (merely arguing, in effect, they were factually correct, but consistent with employment as an agent), makes it very clear to me that both Beaver’s intent and actions were not merely to appear as one’s agent but also to represent clients ( “representation” not being defined), and provide legal advice expected of a barrister and solicitor, not merely appearing as an agent.

In doing so, I find that he acted as a barrister and solicitor, and practiced law and carried on business as a barrister and solicitor. [ 74 ] In his Undertaking executed on December 23, 2015 (Exhibit E to the Bunn Affidavit), Beaver undertook not to do any of the 6 things listed ( infra ) at para 58. [ 75 ] It is clear to me, from Exhibits F, G and H to the Bunn Affidavit that, contrary to Undertakings #1 and #2, Beaver continued to act for prior clients as “their agent” or as representing the client.

It is also clear that, in doing so, and in soliciting new clients he sought to create, or alternatively, might have caused at least potential confusion as to whether he was creating new lawyer-client relationships and providing legal services as he undertook not to do in Undertakings #3 and #5. Thus, I find the facts support an injunction for breach of these Undertakings. Statutory or Common Law Injunction [ 76 ]

Section 111 of the Act provides for a statutory injunction against a person who “has contravened or is contravening” any of

Part 6 of the Act , which includes s. 106 . The LSA has satisfied me that Beaver had contravened and was continuing to contravene

Part 6 of the Act , so, on the basis of that finding (a conclusion acknowledged by Beaver from such a finding, at TR 25/27 – 8), there was statutory jurisdiction for the injunction I granted in my Oral Decision. [ 77 ] Although it may be unnecessary for me to do so, I also find, although Beaver argued (TR 25/ 12 – 13) that the LSA was “constrained to apply” pursuant to s. 111 , that the tripartite test at common law: an arguable case, irreparable damages and a balance of convenience to the LSA, has been met to provide a parallel jurisdiction to grant the injunction I granted in my Oral Decision. I will elaborate on the second and third elements in the latter case.

[78] The LSA looked to the cases of: Broadmoor Special Hospital Authority v. Robinson, [2000] 1 W.L.R. 1590 (CA), at para.25; College of Physicians and Surgeons of Manitoba v. Morgentaler, (MB CA), [1986] M.J. No. 337, 28 D.L.R. (4th) 283 (Man CA), at the penultimate para. (unnumbered), in reference to the respondent having “persisted in flouting the authority” ofthe regulator, which I need not specifically find, but which might be argued on the evidence; Modry v. Alberta Health Services, 2015ABCA 328, [2015] A.J. No. 1160 (Bielby J.A.), at para. 9; and Toronto (Metropolitan) Police Force v. Lymer [1992] O.J.

No. 2399. (ON SC), 97 D.L.R. (4th) 740 (Ont. C.J.G.D. – Trainor J.); to argue (TR 22/38 – 23/6) that the LSA has the obligationto try to protect the interests of the public and the administration of justice, and that “the protection of those interests would constitute adamage that is not compensable in money”. I agree. [79] As to the balance of convenience, protection of the public from potential harm “trumps” any inconvenience to Beaver.

Conclusion [80] Returning to para. 3 of this Memorandum, I specifically make the declarations, and grant the three-part Injunction, sought inthe Originating Application. [81] This Memorandum confirms and supplements my Oral Decision of February 4, 2016, implicitly making the declaration nowexpressly made herein, and granting an injunction against Beaver all in the terms contained in the Injunction Order filed February 9,2016. Heard on the 4th day of February 2016. Dated at the City of Edmonton, Alberta this 4th day of May 2016. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Gordon R.

McKenzie, QC for the Applicant Simon Renouf, QC for the Respondent Greg G. Chase for the Custodian