2016 NLCA 70, 2016 NLCA 70

IN THE MATTER OF an Ex Parte a pplication by the respondent, Lillian Maude Rendell, for appellate representation, pursuant to rule 22 of the Court of Appeal Rules Darrin Michael Steele (appellant) v. Lillian Maude Rendell (respondent) (16/56) Indexed As: Steele v. Rendell 2016 NLCA 70 1 C.A.N.L.R. 328 Court of Appeal of Newfoundland and Labrador Green C.J.N.L. December 19, 2016

Summary: The 87-year-old respondent in the appeal, who resided in British Columbia, applied pursuant to rule 22 of the Court of Appeal Rules , NLR 38/16 to be permitted to be represented on the hearing of the appeal by her son, a retired lawyer in another jurisdiction. She requested that her application be heard ex parte pursuant to rule 30(4) and without oral argument pursuant to rule 30(8). Held: Application permitted to proceed ex parte without oral argument; application allowed.

Green C.J.N.L.: Rule 30(4) provides that where it is authorized by an order or direction of the Court or by a statute or rule, “an application can be made without notice to other parties”. Generally, where substantive interests of other parties are engaged, the Court would not proceed ex parte , but it may do so where the other party’s interests will not be affected . Special obligations of disclosure and candidness apply to a person making an ex parte application.

An application defining the type of representation a party should be allowed to have may be of the type that does not require notice, except perhaps in such situations where it is apparent that a representation order may affect the progress of the proceeding or otherwise impose unnecessary costs on the other side. In this case, it is appropriate to proceed ex parte , because there is no suggestion that granting the respondent the right to be represented by someone else will in any way delay the proceeding or otherwise affect the interests of the appellant.

Rule 30(8) of the new rules allows for the Court to consider and decide an application without requiring the parties to appear for an oral hearing. Where an application is properly made ex parte , there are no other “parties” within rule 30(8) whose consent needs to be obtained before the Court can determine whether to accede to a request for a paper hearing. In the circumstances of this case it is appropriate to decide the issue without the necessity of an oral hearing. Rule 22 came into force on October 17, 2016, replacing the former rule 5.07 of the Rules of the Supreme Court, 1986 .

The former rule applied to proceedings in both the Trial Division and the Court of Appeal, whereas the new rule applies solely to this Court. In interpreting the new rule, therefore, this Court need not consider itself bound by jurisprudence interpreting the former rule. It should also be noted the new rule is expressed in permissive terms and contains no provision relating to representation of a body corporate.

The Court has, as part of its inherent jurisdiction to control its own process, and arguably as part of the core jurisdiction of a superior court, a power to grant rights of audience in the Court in order to facilitate access to justice.

Rule 22 attempts to facilitate access to justice by indicating who generally has rights of audience in the Court. It no longer tries toidentify who may be restricted from appearing. Without foreclosing the possibly that the notion of “representative capacity” in rule 22(1)may be able to be given a broader meaning to encompass any person who the Court may permit to “represent” another, it is notnecessary to definitively decide the scope of the phrase in this case because other provisions in rule 22 have more obvious andstraightforward application. The wording of rule 22 and the tenor of the new rules generally support a broader

interpretation of rule 22 than that which was given tothe former rule 5.07. There is no longer an express prohibition on the representation of a corporation by someone other than a solicitorand is silent on the issue of whether an individual could be represented by someone other than a solicitor. Furthermore, even if theabsence of reference in rule 22(1), rule 15(1), in clearer terms than those in the former rule 2.01(2)(d), would permit the Court to waivecompliance in appropriate meritorious cases.

In structure and form, rule 22 is now similar to the rules in Nova Scotia which have been recognized by the Court of Appeal as notunambiguously excluding the inherent jurisdiction of the Court to grant a right of audience. Rule 22(2) also recognizes two othercircumstances whereby a litigant, outside of self-representation and legal representation, may appear in Court. The first is the case of theso-called “McKenzie friend”, who may, in the words of rule 22(2)(b), “sit with a party in the Court for the purpose of providingassistance, advice and support during the proceeding”.

Second, rule 22(2)(a), allows for more robust representation in “in exceptionalcircumstances” and subject to such conditions as the Court might impose, a non-solicitor to make submissions on behalf of a party who“by reason of physical or mental disability or other disabling circumstance” is not able “adequately” to make submissions on his or herown behalf.

The words “exceptional circumstances” do not mean that such permission will only rarely or grudgingly be given; rather, they mean thatsomething has to exist to take the circumstance out of the normal situation where the litigant is reasonably capable of presenting his orher own case. The scope of the phrase “other disabling circumstance” is even broader. Any circumstance that effectively prevents thelitigant from presenting the case himself or herself adequately will qualify.

In the circumstances, a combination of age, health and distance, coupled with financial difficulty to engage a lawyer and a generalinability to make adequate submissions on her own behalf, given the nature of the issues in dispute, justify an order under rule 22(2)(a)permitting the respondent’s son, a retired lawyer in another province, to appear and make submissions on her behalf. This would not result in the respondent’s son running afoul of the Law Society Act, 1999, SNL 1999, c. L-9.1 which regulates the legalprofession in this province.

There is at least an ambiguity as to whether the definition of the practice of law in section 2(2) of the Act andin the prohibitions with respect to the practice law in

section 76 intend to remove the Court’s inherent jurisdiction to permitrepresentation in some cases and they are therefore insufficient to do so; accordingly, the possible application of the Act should bemerely regarded as a factor to be considered in determining whether, on balance, representation by a non-lawyer should be permitted onthe particular facts that are presented. Moreover, this single, pro bono act of representation does not amount to the practice of law restricted by

section 76. The respondent’sson is not holding himself out to the public as a practicing barrister, nor is he seeking to earn income by his actions. He is merelyassisting his mother. Thus the application can be allowed. Cases cited: Canadian Paraplegic Association (Newfoundland and Labrador) Inc. v. Sparcott Engineering Ltd.(1997), (NL CA),150 Nfld. & P.E.I.R. 203 (Nfld. C.A.) Nixon v. R. et al (1992), (NL CA), 102 Nfld. & P.E.I.R. 310 (Nfld. C.A.) Halifax (Regional Municipality) v. Ofume, 2003 NSCA 110, 218 N.S.R. (2d) 234 Rockwood v.

Newfoundland and Labrador, 2007 NLCA 68, 271 Nfld. & P.E.I.R. 65 Leyson Holdings Inc. v. Newfoundland and Labrador (Department of Works, Services and Transportation), 2008 NLCA 66, 281 Nfld. &P.E.I.R. 41 Burry v. Eastern Regional Integrated Health Authority, 2010 NLCA 18 Trifidus Inc. v. Samgo Innovations Inc., 2011 NBCA 59, 375 N.B.R. (2d) 141 McKenzie v. McKenzie, [1970] 3 All E.R. 1034 (Eng. C.A.)

Fiander v. Mills, 2015 NLCA 31, 368 Nfld. & P.E.I.R. 80 This application was filed on December 8, 2016 and decided ex parte without an oral hearing. The following judgment was delivered on December 19, 2016 by Green C.J.N.L. ______________________________________________________________ Green C.J.N.L.: [1] The respondent in this appeal applied, pursuant to rule 22 of the Civil Appeal Rules, NLR 38/16 to be permitted to be representedon the hearing of the appeal by her son. The respondent is 87 years old and resides in British Columbia.

She says that age, geographicdistance, financial difficulty and inability to represent herself prevent her from engaging local counsel or from representing herself on theappeal. She also asks that her application be heard ex parte pursuant to rule 30(4) and without oral argument pursuant to rule 30(8). [2] Rule 22 provides:

(1) A party who is a natural person may be represented by a solicitor or by himself or herself, or by a person acting for the party astrustee or in a representative capacity.

(2) Upon application of a party, for the purpose of facilitating access to justice, the Court may, in exceptional circumstances and subjectto such conditions as may be appropriate, permit a person who is not a solicitor (

a) to make submissions on behalf of a party who, by reason of physical or mental disability or other disablingcircumstance, is not able adequately to make submissions on his or her own behalf; (

b) to sit with a party in the Court for the purpose of providing assistance, advice and support during the proceeding.

(3) A person granted permission under subsection (2) shall deliver to the Court a completed Form 17, undertaking in writing (

a) not to receive directly or indirectly any compensation for the assistance provided, except reimbursement for expensesactually incurred, unless the Court otherwise permits; (

b) that his or her interests are not in conflict with the interests of the applicant under subsection (2); and (

c) to observe and be bound by the obligations that apply to an officer of the Court particularly as set out in Form 17. [3] This rule, which came into force on October 17, 2016, replaces the former rule 5.07 of the Rules of the Supreme Court, 1986which provided 5.07

(1) Any person, whether or not that person sues as a trustee or personal representative or in any other representative capacity, maycommence, carry on or defend a proceeding in the Court by a solicitor or in person.

(2) A body corporate may not commence, carry on or defend a proceeding otherwise than by a solicitor. [4] Of note is the fact that the former rule applied to proceedings in both the Trial Division and the Court of Appeal, whereas thenew rule applies solely to this Court. In interpreting the new rule, therefore, this Court need not consider itself bound by jurisprudenceinterpreting the former rule, especially insofar as considerations affecting trial proceedings may be relevant to how it is to be applied.

Itshould also be noted the new rule is expressed in permissive terms (who can appear) rather than, as in the case of the former rule, innegative terms (who cannot appear, i.e. in the case of a body corporate). Furthermore, the new rule contains no provision relating torepresentation of a body corporate. The issue of who can represent a body corporate (a matter which does not arise in the current case) istherefore to be dealt with in the Court’s jurisprudence as it is developed over time.

Ex Parte Application [5] Rule 30(4) provides that where it is authorized by an order or direction of the Court or by a statute or rule, “an application can bemade without notice to other parties”. Generally, where substantive interests of other parties are engaged, the Court would not make anyorder or direction without giving the other side an opportunity to be heard. However, where the other party’s interests will not beaffected, the Court may act ex parte.

The special obligations of disclosure and candidness that apply to a person making an ex parteapplication, as discussed in Canadian Paraplegic Association (Newfoundland and Labrador) Inc. v. Sparcott Engineering Ltd.(1997), (NL CA), 150 Nfld. & P.E.I.R. 203 (Nfld.

C.A.) at paragraphs 18-23 will, of course, apply. [6] An application defining the type of representation a party should be allowed to have may be of the type that does not requirenotice, except perhaps in such situations where it is apparent that a representation order may affect the progress of the proceeding orotherwise impose unnecessary costs on the other side. As long as it is not apparent that the other party’s interests will be affected in aparticular case, it is appropriate for the Court to consider representation issues ex parte.

As on any ex parte order, another party mayalways apply for a reconsideration on the basis of an inter partes hearing: rule 30(5). The burden will remain on the original ex parteapplicant to justify the order. See Canadian Paraplegic Association at paragraphs 14-15 which, though dealing with the situation underformer rule 29.13, has equal application under the new rule 30(5).

[7] In this case, there is no suggestion that granting the respondent the right to be represented by someone else will in any way delaythe proceeding or otherwise affect the interests of the appellant; in fact, it might expedite it. Accordingly, it is appropriate to deal withthis matter without notice to the other side. Paper Hearing [8] The new rules allow for the Court to consider and decide an application without requiring the parties to appear for an oralhearing.

Rule 30(8) provides: Upon the request of a party, the Court may decide an application on the basis of the documents that have been filed and the writtensubmissions, provided that the other parties indicate that they agree to the request. [9] Where, as here, an application is properly made ex parte, there are no other “parties” within rule 30(8) whose consent needs tobe obtained before the Court can determine whether to accede to a request for a paper hearing. Accordingly, it is appropriate to considerthe matter on the basis of the material before the Court without seeking the consent of any other person.

In this case, given the age,distance from the Court and other circumstances of the applicant and the fulsome nature of the material supplied, which does not raiseany issues requiring a determination of credibility, it is appropriate to decide the issue without the necessity of an oral hearing andwithout requiring a hearing by audio or videoconference. [10] I would further note that, although framed in the form of an application, the assistance being sought could in reality be regardedas a “request” (rule 7(k)), which is a less formal way of accessing the Court to obtain procedural directions and determinations on mattersrelated but not central to the determination of the substantive issues on the appeal.

The purpose of encouraging requests is to facilitate theCourt’s processes by enabling determinations of non-contentious matters or matters affecting one party only to be determinedexpeditiously without the delay and expense of formal applications and appearances in court. (A request can, of course, be converted intoor treated as an application if the more formal procedure is warranted). [11] This policy reinforces the decision to proceed without oral submissions in this case.

Representation Order [12] I start with the proposition that the Court has, as part of its inherent jurisdiction to control its own process, a power to grant rightsof audience in the Court in order to facilitate access to justice: Nixon v. R. et al (1992), (NL CA), 102 Nfld. &P.E.I.R. 310 (Nfld. C.A.); Halifax (Regional Municipality) v. Ofume, 2003 NSCA 110, 218 N.S.R. (2d) 234 at paragraph 30. The natureof such an audience will be determined on a case by case basis according to what is necessary to enable access to the adjudication of theCourt to be facilitated in an effective manner.

This ability to grant a right of audience in appropriate cases is arguably part of the corejurisdiction of a superior court which cannot be taken away by legislation or restricted in a manner that prevents proper access to justice. [13] Rule 22 attempts to facilitate access to justice by indicating who generally has rights of audience in the Court. It no longer tries toidentify who may be restricted from appearing but focuses on certain categories of persons who may appear.

Rule 22(1) emphasizes thatthe litigant (who is a natural person) herself or himself may appear personally and in addition may be represented by a member of thebar. Beyond that a person who is neither an individual litigant nor a lawyer may appear when acting as trustee or in a “representativecapacity.” Traditionally, the notion of appearing in a representative capacity in this context was regarded as referring to situations wherethe litigation involved a representative action. If that is the

interpretation to be placed on the phrase in rule 22(1), it would not haveapplication here because the respondent is not involved in a representative proceeding. [14] Without foreclosing the possibly - now that rule 22 has been severed from its connection with trial proceedings as was the case inthe former rule – that the notion of “representative capacity” in rule 22(1) may be able to be given a broader meaning to encompass anyperson who the Court may permit to “represent” another, it is not necessary to definitively decide the scope of the phrase in this casebecause other provisions in rule 22 have more obvious and straightforward application. [15] I would, however, observe that the wording of rule 22 and the tenor of the new rules generally support a broader

interpretation ofrule 22 than that which was given to the former rule 5.07. Decisions of this Court in Rockwood v. Newfoundland and Labrador, 2007NLCA 68, 271 Nfld. & P.E.I.R. 65 and Leyson Holdings Inc. v.

Newfoundland and Labrador (Department of Works, Services andTransportation), 2008 NLCA 66, 281 Nfld. & P.E.I.R. 41, which are generally regarded as enunciating a restrictive approach to allowingrepresentation by a non-solicitor in this jurisdiction, are not determinative because, first, they dealt only with the specific restrictionrelating to representation of a corporation in rule 5.07(2) and not representation of an individual under the more general rule 5.07(1) and,secondly, the restriction on corporate representation is in any event no longer in the new rules. [16] While it is true that Leyson did assert that the inherent jurisdiction to grant audience in the courts and the ability of the Court torelieve against the strict application of a rule under then rule 2.01(2)(

d) could not operate in the face of the specific prohibition in 5.07(2)regarding corporations, that approach is inapplicable with respect to representation of a natural person under rule 5.07(1), a matterLeyson did not deal with. Indeed, in the subsequent case of Burry v. Eastern Regional Integrated Health Authority, 2010 NLCA 18 atparagraph 9, this Court noted in obiter that, unlike the specific prohibition on representation of a corporation in rule 5.07(2), the rule “issilent on the issue of whether an individual could be represented by someone other than a solicitor” (my emphasis).

The same is truewith respect to the new rule 22 (even with respect to corporations). There being no express prohibition on such representation, there isroom for the inherent jurisdiction to grant audience to continue to operate. Furthermore, even if the absence of reference in rule 22(1) torepresentation by anyone other than the litigant himself or a solicitor could be taken as an implicit prohibition on anyone else filling thatrole, rule 15(1), in clearer terms than those in the former rule 2.01(2)(d), would permit the Court to waive compliance in appropriatemeritorious cases. Rule 15(1) states:

(1) The Court may waive compliance or relieve against non-compliance with these rules and may direct the procedure to be followed. [17] The application of a provision like rule 15(1) to allow representation by a non-lawyer is consistent with the approach taken bythe New Brunswick Court of Appeal in Trifidus Inc. v. Samgo Innovations Inc., 2011 NBCA 59, 375 N.B.R. (2d) 141 – an approach with

which I agree – which held the general power to relieve against the application of a rule to prevent an injustice could apply even to a rule specifically preventing representation by a non-lawyer. [ 18 ] In structure and form, rule 22 is now similar to the rules in Nova Scotia which were recognized by the Court of Appeal in Ofume as not unambiguously excluding the inherent jurisdiction of the Court to grant a right of audience (at paragraphs 30-34). [ 19 ] Rule 22(2) also recognizes two other circumstances whereby a litigant, outside of self-representation and legal representation, may appear in Court.

The first is the case of the so-called “McKenzie friend” (named after the English case of McKenzie v. McKenzie , [1971] P. 33 and first recognized by this Court in Fiander v. Mills , 2015 NLCA 31 , 368 Nfld. & P.E.I.R. 80 at paragraph 9 ) who may, in the words of rule 22(2)(b), “sit with a party in the Court for the purpose of providing assistance, advice and support during the proceeding”.

This provision has no application in this case because the respondent is seeking to have her representative appear and fully argue her case on her behalf, not merely sit with and assist her. [ 20 ] Rule 22(2)(a), however, allows for more robust representation in certain circumstances.

It allows “in exceptional circumstances” and subject to such conditions as the Court might impose, a non-solicitor to make submissions on behalf of a party who “by reason of physical or mental disability or other disabling circumstance” is not able “adequately” to make submissions on his or her own behalf. [ 21 ] I do not read the words “exceptional circumstances” as meaning that such permission will only rarely or grudgingly be given; rather, it means that something has to exist to take the circumstance out of the normal situation where the litigant is reasonably capable of presenting his or her own case.

Those circumstances are identified as physical or mental ability or “other disabling circumstance.” Advanced age might well constitute either a physical or mental disability depending on the circumstances. The disability need not, however, be of such a severe nature that it would justify the appointment of a litigation guardian for the person. [ 22 ] The scope of the phrase “other disabling circumstance” is broader.

When read with the phrase “not able adequately to make submissions”, it is clear that any circumstance that effectively prevents the litigant from presenting the case himself or herself “adequately” (i.e. to a minimal level that enables reasonable submissions covering the basic points in issue) will qualify. Thus, financial impecuniosity making it impossible to hire a lawyer, a low education or intellectual level preventing true understanding of the issues or an inability, due to disabling anxiety or other cause, to speak in public – to mention just a few examples – may also qualify.

While I do not regard it necessary to enunciate a comprehensive list of factors to consider, I would observe that the factors mentioned in paragraph 41 of the Ofume decision would undoubtedly be relevant. [ 23 ] In this case, the respondent, who has spent over $60,000 on legal fees and disbursements at the trial level (where she was successful), says she is not now financially able to continue to engage her lawyers to respond to an appeal which relates primarily to correctness of the trial judgment on the issue of costs. She is a widow living on a pension.

By reason of her age and health she would find it difficult to travel to this province to argue the case herself. She also says that given the complexity of the technical issues that are being raised as to the costs order under appeal she would not be able effectively be able to make adequate submissions in any event. [ 24 ] She proposes that her son, Brian W. Rendell, who was a practicing member of the bar in British Columbia until his retirement three and a half years ago, is willing to appear and argue on her behalf.

He has filed the necessary undertaking required by rule 22(3) not to receive any compensation for his assistance, confirming that his interests are not in conflict with those of the respondent and that he will abide by the obligations of an officer of the court as specified in Form 17 of the rules. [ 25 ] In the circumstances, I am satisfied that a combination of age, health and distance, coupled with financial difficulty to engage a lawyer and a general inability to make adequate submissions on her own behalf, given the nature of the issues in dispute, justify an order under rule 22(2)(

a) permitting Mr. Rendell to appear and make submissions on behalf of the respondent on the appeal. [ 26 ] I would add that, although Mr. Rendell is legally trained, he is retired and no longer licensed to practice. Nevertheless, I do not regard him as running afoul of the Law Society Act, 1999 , SNL 1999, c. L-9.1 which regulates the legal profession in this province. There are several reasons for this. First, like the Nova Scotia Court of Appeal in Ofume , I am satisfied that there is at least an ambiguity as to whether the definition of the practice of law in section 2(2) of the Act and in the prohibitions with respect to the practice law in

section 76 intend to remove the Court’s inherent jurisdiction to permit representation in some cases and that they are therefore insufficient to do so; accordingly, the possible application of the Act should be merely regarded as a factor to be considered in determining whether, on balance, representation by a non-lawyer should be permitted on the particular facts that are presented. As this Court said in Burry at paragraph 9 ,

section 76 “may nevertheless have relevance” to the issue. [ 27 ] Secondly, I do not read Leyson as holding that every case of representation by a non-lawyer will necessarily amount to the practice of law; only that on the facts of that case, the representation was to be so characterized. [ 28 ] Thirdly, as was decided in Ofume , it is more appropriate in any event to leave the issue of the application of

section 76 to the Law Society for their further determination of what, if any, other action could or should be taken. [ 29 ] Finally, in any event, on the facts here, I do not consider this single, pro bono act of representation to be the practice of law restricted by

section 76. Mr. Rendell is not holding himself out to the public as a practicing barrister nor is he seeking to earn income by his actions. He is merely assisting his mother without any prospect of gain and without purporting to create a solicitor-client relationship. [ 30 ] In these circumstances, I order that: 1. Mr. Brian W. Rendell may appear on the appeal and make submissions on behalf of the respondent and in connection therewith file any material necessary to assist the Court in dealing with the issues that have been raised. 2. Mr.

Rendell shall henceforth be designated as the “Litigation Representative” for the respondent on any documents filed in Court or passing between him and counsel for the appellant.

3. Mr. Rendell shall henceforth notify counsel for the appellant of this order and provide counsel with an address for service, telephone number and email address to facilitate communications between them 4. Either party may apply for further directions. Application allowed.