Mark Zielke Appellant (Defendant) v. Law Society of Saskatchewan, 2021 SKCA 156

Court of Appeal for Saskatchewan Docket: CACV3457 Citation: Zielke v Law Society of Saskatchewan , 2021 SKCA 156 Date: 2021-12-01 Between: Mark Zielke Appellant (Defendant) And Law Society of Saskatchewan Respondent (Plaintiff) And Attorney General for Saskatchewan Intervenor (Non-Party) Before: Caldwell, Leurer and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Tholl On appeal from: 2019 SKQB 166 , Saskatoon Appeal heard: May 5, 2021 Counsel: Mark Zielke on his own behalf Timothy Huber for the Respondent Thomson Irvine, Q.C. for the Intervenor Leurer J.A. I.

INTRODUCTION [ 1 ] The issue in this appeal is whether non-lawyers can be enjoined from appearing as paid agents for those charged with traffic offences or involved in small claims matters in the Provincial Court of Saskatchewan. [ 2 ] The Legal Profession Act, 1990 , SS 1990-91, c L-10.1 [ LPA ], prohibits persons who are not members of the Law Society of Saskatchewan from representing others before courts in this province. This prohibition is subject to some exceptions identified in the LPA . In addition, The

Summary Offences Procedure Act, 1990 , SS 1990-91, c S-63.1 [ SOPA ], and The Small Claims Act, 2016 , SS 2016, c S-50.12 [ SCA ], contemplate that , at least in some circumstances, parties to proceedings subject to those statutes may be represented by an agent. [ 3 ] Mark Zielke is not a member of the Law Society; that is, he is not lawyer or a student-at-law. Nonetheless, he has made it his business to defend people who have been charged with traffic offences or who are litigants in small claims matters in the Provincial Court. The Law Society sought and obtained an injunction to restrain Mr.

Zielke from carrying on this business: Law Society of Saskatchewan v Zielke , 2019 SKQB 166 , 42 CPC (8th) 116 [ Chambers Decision ] . Mr. Zielke appeals from the Chambers Decision . [ 4 ] In my respectful view, the Chambers Decision is grounded in a misinterpretation of the LPA and other applicable legislation. The SOPA and the SCA provisions that allow for representation by an agent operate as an exception to the prohibition found within s. 30(1) of the LPA . They also contain no qualification or requirement that the agent not be paid. Accordingly, the injunction against Mr. Zielke must be set aside.

My reasons follow. II. BACKGROUND

A. The injunction application [ 5 ] The Law Society’s contention is that Mr. Zielke is acting contrary to s. 30 of the LPA . At the times that are relevant to this appeal, that provision provided as follows: Unauthorized practise 30

(1) No person, other than a member who holds a certificate, shall: (

a) practise at the bar of any court of civil or criminal jurisdiction in Saskatchewan; (

b) advise, do or perform any work or service for fee or reward, either directly or indirectly, in matters pertaining to the law of Saskatchewan or of any jurisdiction outside Saskatchewan; (

c) sue out any writ or process; or (

d) commence, carry on or defend any action or proceeding in any court.

(2) A person, other than a member who holds a certificate, who commences, prosecutes or defends an action or proceeding in a court of civil or criminal jurisdiction or acts as counsel or lawyer in an action or proceeding is: (

a) incapable of recovering any fee, reward or disbursement on that account; and (

b) deemed to be guilty of a contempt of the court in which the proceeding has been commenced, carried on, defended or prosecuted, and may be proceeded against for contempt before the Court of Appeal or a judge of the court sitting in chambers. The LPA , including s. 30 , has been amended since the events giving rise to this appeal: The Legal Profession Amendment Act, 2019 , SS 2019, c 7 ; The Legal Profession (Law Foundation) Amendment Act, 2020, SS 2020, c 7 ; and The Miscellaneous Statutes (Appeal Provisions) Amendment Act, 2021 , SS 2021, c 19 .

These amendments are not considered in this judgment. [ 6 ] The Law Society brought its injunction application pursuant to s. 82 of the LPA , which provides as follows: Injunction 82

(1) Where it appears that a person is acting or is likely to act in contravention of this Act or the rules, the society may apply to the court for an injunction enjoining any person from doing any act or thing that contravenes this Act or the rules, notwithstanding any penalty that may be provided by this Act with respect to that contravention.

(2) On an application pursuant to subsection (1), the court may grant an injunction, interim injunction or any other relief that it considers just. [ 7 ] It supported the application with the affidavit of its Complaints Intake Officer, Pamela Elford. Ms. Elford’s affidavit explains that, in December 2018, the Law Society was contacted by the Senior Justice of the Peace (Saskatoon), asking if non-lawyers could appear in Provincial Court in traffic offence matters as agents. The Senior Justice of the Peace (Saskatoon) provided the Law Society with a copy of Mr. Zielke’s business card.

This business card associates Mr. Zielke with Jasmine Solution Centre Inc. [Jasmine] which, in turn, is identified on the business card as “Your Dispute Resolution Experts”. The face of the business card further suggests that Mr. Zielke defends traffic tickets and represents clients in landlord and tenant disputes and small claims matters, as well as providing other services. [ 8 ] Ms. Elford’s affidavit confirms that Jasmine was incorporated in 2014 but was struck from the corporate registry in 2018, and that the corporation was owned by persons other than Mr. Zielke.

Her affidavit attaches pages printed from Jasmine’s Facebook page. These pages contain a picture of Mr. Zielke and refer to Jasmine as providing services in relation to residential tenancy disputes. Mr. Zielke’s name does not appear on these printed pages. However, the contact information on Jasmine’s Facebook page matches the contact information found on Mr. Zielke’s business card. [ 9 ] Ms. Elford’s affidavit also attaches a letter from the Assistant Deputy Attorney General for Saskatchewan, who identified that Mr.

Zielke “has been appearing on a number of Traffic Court trials in Saskatchewan, apparently for remuneration”. Finally, Ms. Elford’s affidavit confirms that Mr. Zielke is not, and never has been, a member of the Law Society. [ 10 ] The Law Society also filed transcripts relating to the prosecution of offences contrary to The Traffic Safety Act , SS 2004, c T- 18.1 [ TSA ], between December 11, 2018, and January 9, 2019. The proceedings to which the transcripts relate were all trials or other appearances before justices of the peace in the Provincial Court. These transcripts establish that Mr.

Zielke has been representing clients in relation to charges under the TSA and has been paid for his services. [ 11 ] Mr. Zielke did not file evidence in reply to the Law Society’s application. However, he opposed its injunction application. He contended that the SOPA , and the Criminal Code provisions incorporated into it, as well as the SCA authorized his appearance as a paid agent. B.

The Chambers Decision [ 12 ] The Chambers judge concluded that “charging a fee is not expressly permitted in the SOPA and SCA ” while, on the other hand, the “ LPA specifically provides that nonlawyers may not charge fees” (at para 14). On this basis, he found there to be “no conflict between the provisions of the LPA and the SOPA permitting an agent to appear by or be represented on a hearing by an agent and the provisions of the LPA to the effect that no one but a licenced lawyer may charge a fee for appearing for or representing another person” (at para 15).

The Chambers judge also found that the constitutional principle of paramountcy, which had been invoked by Mr. Zielke in relation to his

reliance on the Criminal Code , was not engaged. The Chambers judge found there to be no conflict between the Criminal Code provisions which authorize agents to appear in connection with certain matters and the LPA since the “ Criminal Code in no way seeks to legislate as to who may practice law and who may charge fees for practicing law” (at para 18). [ 13 ] With these determinations in hand, the Chambers judge turned to consider if the Law Society was entitled to an injunction. He noted the Law Society’s obligation to act in the public interest.

He referred to several authorities to establish the proposition that “the threshold requirement for an injunction restraining an unauthorized person from practicing law is low since the injunction merely operates to prohibit what the LPA already prohibits and it is the duty of the Law Society, in service of the public interest, to ensure that unauthorized practice does not occur” (at para 26). The Chambers judge found that, contrary to s. 30 of the LPA , Mr. Zielke was: (

a) practising at the bar of courts of civil and criminal jurisdiction; (

b) performing work or service for a fee in matters pertaining to the law of Saskatchewan; and (

c) defending actions or proceedings in a court. He concluded that “[a] ccordingly the Law Society is entitled to an injunction” (at para 27). The wording of the injunction he granted was modelled closely on s. 30(1) of the LPA . III. ISSUES [ 14 ] The outcome of Mr. Zielke’s appeal is determined by the answers to three questions: (

a) Did the Chambers judge err in law by interpreting the prohibitions found within s. 30(1) of the LPA (as it existed at the times relevant to this appeal) as being restricted to situations where a person charges a fee or receives a reward? (

b) Did the Chambers judge err in law by concluding that the SOPA did not provide an applicable exception to authorize Mr. Zielke’s appearances as a paid agent in traffic offence matters? (

c) Did the Chambers judge err in law by concluding that s. 33 of the SCA did not provide an applicable exception to authorize Mr. Zielke’s appearances as a paid agent in small claims proceedings? IV. ANALYSIS A. Did the Chambers judge err in law by interpreting the prohibitions found within s. 30(1) of the LPA as being restricted to situations where a person charges a fee or receives a reward? 1. The Chambers Decision [ 15 ] Central to the Chambers Decision was the Chambers judge’s conclusion that the restrictions found in s. 30(1) of the LPA applicable in Mr.

Zielke’s circumstances are limited to situations where a fee or reward is involved. This understanding of s. 30(1) pervades his reasons. [ 16 ] The Chambers judge characterized the prohibition in the LPA to be “against nonlawyers charging a fee for services when acting as agent in legal matters” (at para 8, emphasis added). He prefaced the analysis that began at paragraph 13 with the heading “Do the provisions of the SOPA and the SCA prevail over the prohibition in the LPA against nonlawyers charging a fee ?” (emphasis added).

The same understanding appears throughout the Chambers judge’s substantive analysis after this heading. It is also the basis for his conclusion that no conflict exists between the SOPA and the SCA , on the one hand, and the LPA , on the other, because the LPA prohibits non-lawyers from charging a fee for carrying on as Mr. Zielke was: [14] To the extent that the provisions of the LPA , SOPA and the SCA overlap, it is presumed that each is meant to operate fully according to its terms.

Interpreting the subject provisions with these interpretive principles in mind, it is clear that the provisions of the SOPA and the SCA permitting individuals subject to proceedings under these Acts to be assisted and/or represented by agents should not be read as having an implicit intention that this agent can charge a fee for such representation. A conflict does not arise since charging a fee is not expressly permitted in the SOPA and SCA . The LPA specifically provides that nonlawyers may not charge fees. Agents who are not lawyers may not charge fees for their services . This is the only harmonized

interpretation that is consistent with the presumption that each statute is meant to fully operate according to its terms and the presumption against internal conflict. [15] There is no conflict between the provisions of the LPA and the SOPA permitting an agent to appear by or be represented on a hearing by an agent and the provisions of the LPA to the effect that no one but a licenced lawyer may charge a fee for appearing for or representing another person.

The express provisions of each of the provincial statutes can operate without conflict. (Emphasis added) [ 17 ] The Chambers judge continued by stating that there “would only be a conflict if the SOPA provided that the agent may charge a fee for what it permits agents to do” (at para 16, emphasis added). He found there to be no conflict between the provisions of the Criminal Code that authorize appearances by agents in

summary conviction matters and the LPA since the “ Criminal Code in no way seeks to legislate as to who may practice law and who may charge fees for practicing law” (at para 18).

Finally, he similarly held that there was no conflict between s. 800 of the Criminal Code and s. 30 of the LPA because “agents can act pursuant to the right given in the Criminal Code but they are prohibited from charging a fee under the provisions of the LPA ” (at para 19, emphasis added). [ 18 ] Each aspect of this reasoning implies that the restrictions found in s. 30 of the LPA relevant to the Law Society’s injunction request are limited to circumstances in which an agent charges a fee or receives a reward to appear in a

summary offences court or small claims court. Brought even more specifically into the circumstances of this case, the implicit starting point in the Chambers judge’s

analysis was that Mr. Zielke’s actions were offside s. 30(1) of the LPA because he was charging a fee. [19] The first issue in this appeal is whether this is a correct

interpretation of s. 30 of the LPA. In my view, it is not. 2. Analysis [20] Legislation is to be interpreted in accordance with s. 2-10 of The Legislation Act, SS 2019, c L-10.2, which reads as follows: Acts and regulations remedial 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [21]

Section 2-10(1) codifies the modern approach to statutory

interpretation endorsed by the Supreme Court of Canada in Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at 40–41. In Axcess Capital Partners Inc. v Allsteel Builders

(2) Limited,2015 SKCA 33, 383 DLR (4th) 334, Jackson J.A. expanded on what is involved when the modern approach to statutory

interpretation isemployed: [56] There are three dimensions of the Modern Principle: (

i) textual meaning; (ii) legislative intent, which encompasses the scheme andobject of the statute and Parliament’s intention; and (iii) “compliance with established legislative norms,” which are part of the wholecontext in which the statute’s words are to be read and part of the legislature’s intention ([Sullivan on the Construction of Statutes, 6th ed(Markham, Ont: LexisNexis Canda, 2014], p. 8 at para. 2.5).

For example, rules regarding textual analysis assist in the determination ofthe meaning of the text, the rules regarding extrinsic aids help interpreters identify what they may look at for determining legislativeintent, and strict and liberal construction and presumptions of legislative intent contribute to determining the purpose of the statute and toevaluating whether an outcome is acceptable (Sullivan p. 10 at para. 2.8). [22] In accordance with this guidance, I would begin my consideration of s. 30 with its text.

In this regard, s. 30(1) of the LPAprovides a list of activities in which only “a member who holds a certificate” may engage. The term “member” is defined in s. 2(1)(

h) asmeaning a “member of the society admitted pursuant to subsection 4(1)”. Section 4(1) provides that the Law Society “may admit lawyersand students-at-law to be members”. The LPA defines “certificate” to mean “a certificate issued to a member by the society entitling themember to practise law in Saskatchewan” (s. 2(1)(b)). The result of all of this is that only lawyers may engage in the conduct listed ins. 30(1) unless some other exception applies. [23] Section 30(1) lists four categories of activities that non-lawyers must not undertake.

Put into the positive, unless some otherexception applies, only a lawyer may: (a) “practise at the bar of any court of civil or criminal jurisdiction in Saskatchewan” (s. 30(1)(a)); (b) “advise, do or perform any work or service for fee or reward, either directly or indirectly, in matters pertaining to the law ofSaskatchewan or of any jurisdiction outside Saskatchewan” (s. 30(1)(b)); (c) “sue out any writ or process” (s. 30(1)(c)); or (d) “commence, carry on or defend any action or proceeding in any court” (s. 30(1)(d)). [24] In the context of the first issue in this appeal, the most important feature from this list is that the charging of a fee or receipt of areward is mentioned only in association with the conduct described in s. 30(1)(b).

In this regard, while the prohibition created bys. 30(1)(

b) only applies in circumstances where the non-member received a fee or reward, the prohibitions created by subsections (a), (c)and (

d) are not so limited. Therefore, an examination of the plain text of s. 30(1) leads to the conclusion that a non-lawyer would breachthe statute if they undertook any of the activities described in s. 30(1)(a), (

c) or (d), even if they were not compensated in any way. [25] Of course, the modern approach to statutory

interpretation involves consideration of more than the text of a provision. TheSupreme Court noted in Canada Trustco Mortgage Co. v Canada, 2005 SCC 54 at para 10, [2005] 2 SCR 601, that, “[w]hen the words ofa provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the otherhand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role”. In this case,s. 30(1) appears to me to be quite clear.

While a court must strive to read a statute as a “harmonious whole”, the Court in Canada Trustcoindicated that the “relative effects of ordinary meaning, context and purpose on the interpretive process may vary” (at para 10). In thiscase, consideration of other applicable factors reinforces the conclusion that s. 30(1) should be given the meaning that flows from a plainreading of its text. [26] First, the idea that a fee need not be charged for a violation of s. 30(1)(a), (

c) or (

d) to be found is consistent with establishedlegislative norms. The Legislature is presumed to avoid “superfluous or meaningless words” and “[e]very word in a statute is presumed tomake sense and to have a specific role to play in advancing the legislative purpose” (Ruth Sullivan, Sullivan on the Construction ofStatutes, 6th ed (Markham: LexisNexis Canada, 2014) at §8.23 [Sullivan]). Accordingly, the inclusion of the reference to fee or reward ins. 30(1)(b), and the associated absence of such language in ss. 30(1)(a), 30(1)(

c) and 30(1)(d), must be seen to be deliberate and thereforeshould be given meaning and effect in the

interpretation of the statute. [27] Notably, the type of activity mentioned in s. 30(1)(

b) is distinct from that referred to in the other provisions. While s. 30(1)(a),(

c) and (

d) are fundamentally concerned with activities directly related to court processes, s. 30(1)(

b) captures work or services related tothe law that occur outside of the courts. Justice Barrington-Foote (as he then was) explained this distinction in Law Society ofSaskatchewan v Siekawitch, 2016 SKQB 345:

[15]

Section 30 addresses two kinds of activities. First, it deals – in ss. 30(1)(a), (

c) and (d) − with the institution and conduct of legal proceedings in the courts. The provision of the services for these purposes is prohibited regardless of whether they are provided for a fee or reward. Second, it deals in s. 30(1)(

b) with advising, doing or performing any other work in matters pertaining to the law. The provision of those services is prohibited only if they are provided for a fee or reward. [ 28 ] In Siekawitch , Barrington-Foote J. concluded that the “fee or reward” aspect of s. 30(1)(

b) distinguishes that provision from s. 30(1)(a), (

c) and (d). He held that advising, doing or performing any work or service in matters pertaining to the law of Saskatchewan or of any jurisdiction outside Saskatchewan is only precluded where a fee or reward is charged. On the other hand, practising at the bar of any court in Saskatchewan, suing out any writ or process, or commencing, carrying on or defending any action or proceeding in court is restricted regardless of whether the agent is remunerated.

As I will explain, it is not necessary for the purposes of this appeal to attempt to give a definitive meaning to what activities might be involved in s. 30(1)(b), as Mr. Zielke’s conduct falls clearly within the scope of other parts of s. 30(1). [ 29 ] An examination of the object of the LPA supports the understanding that activities mentioned in s. 30(1)(a), (

c) and (

d) are prohibited even if the agent receives no compensation. The object of the LPA can be seen from ss. 3.1 and 3.2 of that Act, which provide as follows: Duty of society 3.1 In the exercise of its powers and the discharge of its responsibilities, it is the duty of the society, at all times: (

a) to act in the public interest; (

b) to regulate the profession and to govern the members in accordance with this Act and the rules; and (

c) to protect the public by assuring the integrity, knowledge, skill, proficiency and competence of members. Protection of the public 3.2 In any exercise of the society’s powers or discharge of its responsibilities or in any proceeding pursuant to this Act, the protection of the public and ethical and competent practice take priority over the interests of the member. [ 30 ] Said more simply, the LPA ’s object is to regulate the legal profession in the public interest.

As the Supreme Court of Canada noted in Pharmascience Inc. v Binet , 2006 SCC 48 at para 36 , [2006] 2 SCR 513, “[t]he privilege of professional self-regulation … places the individuals responsible for enforcing professional discipline under an onerous obligation. The delegation of powers by the state comes with the responsibility for providing adequate protection for the public”.

The qualified monopoly created by s. 30 is part of the overall statutory scheme the Legislature has constructed to achieve this broad objective. [ 31 ] Before the Chambers judge and before this Court, the Law Society emphasized the need to protect members of the public from representation by non-qualified individuals. It points out that, to be effective, an advocate must have specialized knowledge. Issues of both substantive and procedural law are often intertwined when a representative appears in court.

While the same may be said about at least some of the activities that are described in s. 30(1)(b), in connection with which a fee must be charged for a breach of statute to occur, the interests are different when a non-qualified person appears as counsel in court. An advocate’s actions may well impact the parties, witnesses, judges and possibly others. The manner of representation can also affect the efficiency of the proceedings and access to justice in general.

All of this provides a reason for the Legislature to have prohibited non-lawyers from providing representation to others in court proceedings, even in the absence of a fee or reward, unless an exception applies. [ 32 ] Other parts of the LPA reinforce this understanding of s. 30(1). The legislation recognizes certain exceptions to the restrictions otherwise imposed by s. 30. For example, s. 31 states that s. 30 does not apply to “a member of a police force appearing for the Crown before a judge of the Provincial Court of Saskatchewan or justice of the peace” (s. 31(c)), or government employees “prosecuting

summary conviction cases” (s. 31(d)). These provisions reflect the fact that the government does not need protection from its employees or from police officers. Similarly, s. 31(

f) allows “ a person who is a plaintiff or defendant in proceedings and who commences, prosecutes or defends in the person’s own name an action or proceeding in a court of civil or criminal jurisdiction” to represent themself. In essence, through s. 31(f), the Legislature determined not to protect persons from themselves. [ 33 ] I do not see s. 30(2) as affecting this conclusion. According to s. 30(2)(a), a person who is not a member of the Law Society who participates in court proceedings may not recover any fee, reward or disbursement. They also may be found in contempt pursuant to s. 30(2)(b).

However, the fact that the Legislature has limited the remedies available to a person who has appeared for another in court, or attached a consequence to a person who may have charged a fee for representing another in court, is not a reason to interpret the prohibitions contained in s. 30(1)(a), (

c) and (

d) as being restricted or limited to circumstances where a fee is charged. Recalling that the activities contemplated by s. 30(1)(a), (

c) and (

d) are restricted regardless of whether a fee is charged, s. 30(2)(

a) simply serves to underline that the recovery of any fees in relation to those activities is precluded. Highlighting the focus on events and processes that occur in the context of courts, s. 30(2)(

b) explicitly references the possibility of contempt proceedings against those who are not entitled to engage in the activities reserved for members of the Law Society. [ 34 ] Considering all of this, the Legislature must be taken to have concluded that, unless some exception applies, non-lawyers are prohibited from undertaking the court-related activities described in s. 30(1) (a), (

c) or (

d) of the LPA , even if a fee is not charged or a reward is not received. I would add only that the rather archaic language with which these prohibitions are expressed appears to be a product of the fact that s. 30(1) finds its historic roots in statutory language that, in this province, can be traced to s. 8(1) of The Legal Profession Act , SS 1907, c 19 and, before that, to s. II of

An Act for consolidating and amending several of the Laws relating to Attornies and Solicitors practising in England and Wales , 6 & 7 Vict, c 73, passed in 1843. [ 35 ] Although the Chambers judge did not determine which of the four prohibitions found in s. 30(1) were implicated by Mr. Zielke’s appearances in Provincial Court, s. 30(1)(

d) prohibits non-lawyers from commencing, carrying on or defending any “action or proceeding in any court”. The term “court” is defined by s. 2(1) (

e) of the LPA as meaning “the Court of Queen’s Bench, unless the context

requires otherwise”. As s. 30(1)(

d) refers to any court rather than the court, I would agree that, in the context of that provision, “court” includes the Provincial Court. This was the conclusion reached by Koch J. in R v Apesland , 2006 SKQB 171 , 281 Sask R 131 [ Apesland ]. In Apesland , an individual was charged with violating s. 30(1)(

d) for representing a corporation at a small claims trial held in Provincial Court. Justice Koch noted that the definition of “court” as meaning the Court of Queen’s Bench only held “unless the context requires otherwise”. He noted that if “court” did not include the Provincial Court, it would make “the word ‘any’ as it appears in s. 30(1)(

d) mere surplusage”. He therefore held that the “reference to ‘any court’ in that subsection includes the Provincial Court of Saskatchewan” (at para 9). I agree with this conclusion. [ 36 ] Mr. Zielke’s conduct may also have been seen as violating other prohibitions contained in s. 30(1). For example, the fact that he has made it his business to represent others in Provincial Court might mean that he was engaged in the “practise at the bar” of that court, within the meaning of s. 30(1)(a).

As well, his representation might imply that he has been providing advice “in matters pertaining to the law of Saskatchewan”, within the meaning of s. 30(1)(b). However, it is not necessary for me to reach a conclusion on these two points as I am satisfied that, even ignoring the fact that Mr.

Zielke was charging a fee, his appearances in Provincial Court were a breach of s. 30(1) (d), unless he enjoyed the benefit of an applicable exception. [ 37 ] It is not clear from the Chambers Decision how the Chambers judge came to interpret the applicable prohibitions set out in s. 30(1) as being restricted to situations where an agent is paid. Based on arguments made in this Court, the Chambers judge may have been led into error by the

interpretation that was given to s. 30(1) by the Law Society. In this regard, in this appeal, the Law Society submitted that to find a conflict between provisions of the SCA and SOPA , on the one hand, and the LPA , on the other, it was necessary to “read into” the SOPA and SCA an entitlement that the agent may be paid. However, the Law Society’s argument has things backwards. As I will explain, the conflict exists unless a requirement is read into the LPA that is not there – that is, that the prohibitions created by s. 30(1)(a), (

c) and (

d) are applicable only if a fee is charged. This understanding of s. 30(1) is not available, for the reasons I have given. 3. Conclusion respecting

interpretation of s. 30(1) of the LPA [ 38 ] Subject to any other applicable exceptions, a non-lawyer may not undertake any of the activities that are described in s. 30(1) (a), (

c) and (

d) of the LPA , even if they do not charge a fee or receive a reward. On the facts, Mr. Zielke’s actions fell within the prohibition set out in s. 30(1) (d), if not other parts of s. 30(1) , unless some applicable exception applied. [ 39 ] The necessary conclusion is that the Chambers judge erred in law by interpreting s. 30(1) of the LPA as being restricted to situations where a fee is charged. B. Did the Chambers judge err in law by concluding that the SOPA did not provide an applicable exception to authorize Mr. Zielke’s appearances as a paid agent in traffic offence matters? 1.

The Chambers Decision [ 40 ] Before the Chambers judge, Mr. Zielke argued that the SOPA provides an applicable exception entitling him to appear as an agent in traffic offence proceedings, including a trial, notwithstanding that s. 30(1) of the LPA would otherwise prohibit him from doing so. Mr. Zielke supported this argument with reference to s. 51 of the SOPA .

Section 51 contemplates that the SOPA ’s provisions generally apply, notwithstanding any other provincial statute: Act prevails 51 Notwithstanding any other Act, where the provisions of this Act and any other Act are in conflict, the provisions of this Act prevail except to the extent that the other Act explicitly by name repeals or amends this Act. [ 41 ] The Chambers judge approached the question before him as involving a potential conflict between these two statutes. At paragraph 11 of the Chambers Decision, he quoted several passages from Sullivan , including the following: §11.38 Conflict avoidance. The courts often mention that, if possible, conflict should be avoided through

interpretation rather than resolved through a paramountcy rule. There are two ways to avoid conflict through

interpretation. The first is to show that, properly interpreted, the apparently conflicting provisions do not overlap and therefore cannot conflict. Here conflict avoidance is the result of

interpretation grounded in something other than the desire to avoid conflict. The other way of avoiding conflict acknowledges that, given their ordinary meaning, the provisions do overlap and if both were applied in accordance with that meaning they would conflict. To avoid the conflict, the court gives one of them a strained

interpretation or reads one of them down. Conflict avoidance of this sort is dealt with below under the heading “Conflict Resolution”. If the sole justification for departure from the ordinary meaning of a provision is to prevent a conflict that would otherwise exist, it is indistinguishable from conflict resolution. [ 42 ] In this case, the Chambers Decision reveals that the Chambers judge thought that he had avoided the potential conflict between s. 30(1) of the LPA , on the one hand, and the SOPA , on the other, based on the first technique identified in this passage.

He invoked the presumption of statutory coherence to conclude that there was no conflict between the provisions of the LPA and the SOPA because the SOPA did not authorize the charging of a fee. As I have explained, in my respectful view, this reasoning is based on a misunderstanding of s. 30(1) . [ 43 ] The issue under this head is whether, when s. 30(1) is properly understood, the SOPA provides an exception to the LPA ’s prohibitions. The answer to this question rests on the outcome of three subsidiary issues: (

a) What role can agents play in proceedings under the SOPA ?; (

b) Should the SOPA be interpreted in such a way that only unpaid agents may represent defendants?; and (

c) How do the SOPA and the LPA interact? I will deal with these issues in order. 2. What role can agents play in SOPA proceedings?

[44] Before the Chambers judge and in this Court, the Law Society accepted that the SOPA provides an exception to s. 30(1) of theLPA, allowing for an agent not only to appear for defendants in traffic safety matters in Provincial Court but to fulfil counsel-likefunctions. Because the Law Society premised this acknowledgment on the incorrect understanding that s. 30(1) prohibited paid agents’appearances, I consider it useful to examine what role agents can play in proceedings under the SOPA, rather than simply relying on theLaw Society’s acknowledgment that agents may perform counsel-like functions.

I am, for the moment, setting aside the question as towhether the agent may be paid. Instead, I am focusing on what the agent can do at a trial conducted under the SOPA. For example, can theagent examine witnesses? Can the agent make argument? [45] The SOPA has several procedural paths leading to a trial in Provincial Court in connection with offences under the TSA.

Part IIIof the SOPA sets out the procedure for hearing charges that are initiated by way of a summons ticket.

Section 5 of The

Summary OffencesProcedure Regulations, 1991, RRS c S-63.1 Reg 2 [SOPA Regulations], designates the statutes and offences under which proceedings maybe initiated by way of a summons ticket. It lists nearly 50 statutes and regulations containing offences for which

Part III of the SOPA isapplicable.

Part IV of the SOPA sets out the procedure for proceedings that are initiated by way of an offence notice ticket.

Section 6 ofthe SOPA Regulations designates the statutes and offences under which proceedings may be initiated by way of an offence notice ticket. Inote that the proceedings for many offences under the TSA are initiated by way of an offence notice ticket.

Part V of the SOPA sets outprovisions detailing the enforcement mechanisms available under the statute. Among other provisions,

Part V contains provisions thataddress the penalty that may be assessed to a defendant if they fail to answer a summons, penalties for defaulting on the payment of a fineand the ability of a court to make restitution orders under the SOPA. [46] In R v Dodge (1995), (SK KB), 136 Sask R 306 (QB), Noble J. noted how the procedures contemplated byParts III and IV of the SOPA are distinct: [7] The resolution of this issue requires a look at some of the provisions of The

Summary Offences Procedure Act, S.S. 1990, c. S-63.1. In general terms I note first that when a peace officer finds himself in the position of laying a charge against a speeding motorist hehas two alternatives which are apparent on the face of the ticket he issues to the motorist. He can issue a “summons ticket” which isauthorized by s. 13(1) of the Act; (which is in

Part III of the Act); or he can issue an “offence notice ticket” which is authorized by ss. 17 &18 in

Part IV of the Act. [8] There is a clear difference in the two procedures and I note that by virtue of ss. 12(1) and 17(2),

Part III of the Act does not applyto

Part IV and vice versa. So under

Part III the officer issues a “summons ticket” and under

Part IV he issues an “offence notice ticket”. … (Emphasis in original) [47] In R v Kimery, 2010 SKCA 153, 362 Sask R 255, Richards J.A. (as he then was) summarized the options that are available to adefendant when they are served with an offence notice ticket. Justice Richards stated as follows: [9]

Part IV of The

Summary Offences Procedure Act, 1990, S.S. 1990-91, c. S-63.1 (“SOPA”), which is applicable here, sets outspecial procedures governing what are called “offence notice tickets.” A person […] who is served with such a ticket has three options.First, pursuant to s. 10, he or she may plead guilty and voluntarily pay the applicable fine. Second, pursuant to s. 19, he or she may pleadnot guilty by signing the not guilty plea on the offence notice and delivering it as specified. In that case, he or she will receive a writtennotice of the time and place for the trial.

Third, pursuant to s. 21, the person in receipt of an offence notice ticket may sign the guilty pleaon the notice and indicate that he or she wishes to make submissions concerning the penalty. If this option is selected, the person will benotified of the time and place for making such submissions. [10] SOPA provides for a “default” conviction in the event a person does not elect one of the three options outlined above. … [48] The SOPA contemplates that a defendant to proceedings commenced either by way of a summons ticket or an offence noticeticket may be represented by an agent, at least for some purposes.

For example, s. 14 of the SOPA, found within

Part III, contemplates thatan agent may appear on behalf of the defendant at the first return of a summons: Appearances 14(1) Subject to subsection (2), the defendant shall appear, either personally or by an agent, before a justice on the court appearance dateand at the place stated on the summons: (

a) to answer that summons; (

b) to enter a plea; and (

c) in the case of a plea of not guilty, to obtain a date for trial. (Emphasis added) [49] Other sections within

Part III contemplate that a defendant may, at least for some purposes, be represented by an agent. Forexample, s. 15(3) provides a procedure for when a defendant “fails to appear in court in person or by an agent”. Similarly, s. 15.1 allowsan offender to appear in person or by agent to seek to set aside a conviction. Similar provisions to ss. 14(1), 15(3) and 15.1 appear in PartIV (ss. 19(2), 20(1), 23) and

Part V.1 (ss. 32.61(1)(a), 32.7(1)(

b) and 32.7(2)). [50] While collectively these provisions contemplate that a defendant may be represented by an agent, none of them describe therole of an agent at trial. Standing alone, these provisions could be understood as contemplating that the agent is to do something that fallsshort of fulfilling a counsel-like function at trial. [51] However, Parts III, IV and V.1 are not a complete code of procedure. The SOPA relies on the

summary offence procedures setout in the Criminal Code to supplement its express provisions. In this regard, s. 4 of the SOPA incorporates by reference certain provisions

found in the Criminal Code, stating in part as follows: Procedure generally 4(1) Subject to this Act, any other Act or any regulation, proceedings to enforce

an Act, regulation or bylaw by fine, penalty orimprisonment may be brought summarily before a justice under the

summary conviction provisions of the Criminal Code. …

(4) Subject to this Act, any other Act or any regulation, Parts XXII, XXVI and XXVII, other than

section 840, and sections 20, 21, 22,484, 508.1 and 527 insofar as it relates to a witness, sections 718.3, 719, subsection 732(1) and

section 734.8 of the Criminal Code apply,with any necessary modification, to: (

a) summary conviction proceedings before justices; and (

b) appeals from convictions, acquittals, sentencing or other orders made under

summary conviction proceedings. … [52] Agents are referred to in several provisions contained in

Part XXVII of the Criminal Code, incorporated by reference pursuantto s. 4(4) of the SOPA. A review of these provisions satisfies me that an agent appearing in SOPA matters can fulfil counsel-like functions,such as the examination of witnesses and the making of argument. [53]

Section 800 of the Criminal Code allows a defendant to appear by way of agent at a

summary conviction offence trial, statingin relevant part as follows: When both parties appear 800(1) Where the prosecutor and defendant appear for the trial, the

summary conviction court shall proceed to hold the trial. Counsel or agent

(2) A defendant may appear personally or by counsel or agent, but the

summary conviction court may require the defendant to appearpersonally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearancepursuant thereto. … Appearance by organization

(3) Where the defendant is an organization, it shall appear by counsel or agent and, if it does not appear, the

summary conviction courtmay, on proof of service of the summons, proceed ex parte to hold the trial. (Emphasis added) Similarly, s. 803 allows a

summary conviction court to “adjourn the trial to a time and place to be appointed and stated in the presence ofthe parties or their counsel or agents”. [54] I would note that s. 800(2) contemplates that a

summary conviction offence trial may proceed without a defendant beingpersonally present. This was one reason given by the Court of Appeal for Ontario for concluding that an “agent must be capable ofperforming all defence functions” (R v Romanowicz (1999), (ON CA), 138 CCC (3d) 225 at para 25 [Romanowicz]. [55] The idea that an agent can do more than simply make an appearance or seek an adjournment is also reinforced by s. 802 of theCriminal Code.

Section 802 states that an agent may be involved in the questioning of witnesses, providing in part as follows: Right to make full answer and defence 802(1) The prosecutor is entitled personally to conduct his case and the defendant is entitled to make his full answer and defence. Examination of witnesses

(2) The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses personally or by counsel or agent. (Emphasis added) [56] The right of a defendant cross-examine a witness by an agent granted by s. 802(2) is qualified by s. 802.1: Limitation on the use of agents 802.1 Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she isliable, on

summary conviction, to imprisonment for a term of more than six months, unless (

a) the defendant is an organization; (

b) the defendant is appearing to request an adjournment of the proceedings; or

(

c) the agent is authorized to do so under a program approved – or criteria established – by the lieutenant governor in council of theprovince. (Emphasis added) [57] The fact that s. 802.1 specifically limits the right of an agent to appear or conduct a cross-examination in certain casesreinforces that, in other contexts, the agent has that ability.

Moreover, by eliminating the right created by ss. 800(2) and 802(2) incircumstances where a defendant faces the risk of imprisonment for a term of more than six months, Parliament has recognized that inmore serious cases only counsel – that is, a lawyer – may represent a defendant. [58] It would seem to me to be anomalous if Parliament had created a right of a defendant to have an agent cross-examine a witnessbut not carry out other counsel-like functions. Cross-examination of witnesses is one of the quintessential roles of counsel. Where awitness is a non-party, third party interests are at stake.

By its nature, cross-examination requires the questioner to engage with a witness,often one who is hostile. Effective cross-examination also often requires the questioner to have a knowledge of facts, substantive law andprocedure. Considering this, there would tend to be more reasons to prohibit an agent from conducting a cross-examination thanundertaking most of the other functions customarily performed by legal counsel at a trial, such as making argument.

Moreover, the factthat Parliament has restricted the circumstances in which an agent may conduct cross-examination leads to the conclusion that, where anagent is authorized, their other actions are not restricted. All of this leads me to conclude that, by recognizing in s. 802(2) that an agentmay conduct a cross-examination, Parliament contemplated that an agent may appear and perform other counsel-like functions on behalfof a defendant in matters to which the

section applies. [59] I am cognizant that in Law Society of Manitoba v Lawrie (1989), (MB KB), 61 DLR (4th) 259 (WL) (ManQB) [Lawrie MBQB], Kennedy J. found that s. 802 did not “purport to give authority to an agent to act as a barrister and solicitor”. Instead,he found that it “limits the conduct of an agent to the examination and cross-examination of witnesses”. He added that there “is nosuggestion in the

section that that same agent would be entitled to act as an advocate or spokesman, or to present a submission in law,unless he were a barrister and solicitor” (at para 23, emphasis in original). However, this understanding of the Criminal Code provisions towhich I have referred was rejected by the Court of Appeal for Ontario in Romanowicz.

Moreover, Lawrie MBQB was not followed in TheLaw Society of Manitoba v Pollock, 2007 MBQB 51, [2007] 5 WWR 147 [Pollock MBQB]. [60] In Pollock MBQB, Monnin C.J.Q.B. granted the Law Society of Manitoba a permanent injunction against an individual inrelation to various activities that were determined to amount to the unauthorized practise of law, contrary to s. 20 of The Legal ProfessionAct, SM 2002, c 44. However, he refused to enjoin the respondent from representing third parties in relation to

summary convictionproceedings under the Criminal Code. Chief Justice Monnin held that “s. 800 does more than merely provide the ability for a person otherthan the accused to appear in court on his behalf”. He further held that, when s. 800 is “considered with s. 802, it contemplates activeparticipation by the agent in the proceedings and representation with all that entails” (at para 87).

In reaching this conclusion, MonninC.J.Q.B. distinguished Lawrie MBQB because of subsequent legislative changes and noted that it “would appear that the Manitobalegislation now follows the Ontario legislation which was being compared by Kennedy, J.” (at para 79). In the result, Monnin C.J.Q.B.found that “s. 800 is an exception to the prohibition in s. 20” of Manitoba’s legal profession statute (at para 90). Therefore, while he foundthat other activities by the respondent were offside that legislation and should be restrained, he concluded that “Mr.

Pollock is entitledpursuant to s. 800 of the Criminal Code to act as an agent in

summary conviction proceedings relating to matters under the Code”, so longas the limitations found in s. 802.1 were observed (at para 95). An appeal was taken to the Court of Appeal of Manitoba on other grounds.Pollock MBQB was affirmed without these points being discussed: Law Society (Manitoba) v Pollock, 2008 MBCA 61, [2008] 7 WWR493. [61] All of this compels me to conclude that ss. 800(2), 802(2), 802.1 and 803(1) of the Criminal Code, which are incorporated intothe SOPA, allow an agent to appear at trial and perform counsel-like functions.

This would include the examination and cross-examinationof witnesses and the making of argument. [62] I would add that this understanding of these provisions is consistent with the overall objective of the SOPA. It is designed toprovide generally simplified procedures to deal with less serious matters. Because they are less serious, they are often less complex. Thestakes to the defendant are often less significant. [63] By authorizing the use of agents through the incorporation of these provisions into the SOPA, the Legislature has alsorecognized that some defendants to

summary offence matters are either not comfortable with representing themselves or are unable to doso effectively. In allowing representation by an agent, the Legislature might reasonably be taken to have recognized that many, if not most,defendants in these circumstances would not or could not seek representation from a lawyer. The Legislature must also be taken to havedetermined that the interests that generally require that parties to court proceedings be represented only by qualified lawyers are notsufficiently compelling to deny defendants the choice of other, non-lawyer representation in less serious

summary conviction matters. [64] I note again that the Law Society did not suggest a more limited role for agents in proceedings to which the SOPA applies.However, I have taken some care to review why the SOPA allows agents to appear and fulfil counsel-like roles because the Law Society’sposition was developed in a context in which it submitted that an agent could not be paid for their services because of the LPA. I turn nowto consider this issue. 3.

Should the SOPA be interpreted in such a way that only unpaid agents may representdefendants? [65] I would reiterate that, in these proceedings, the Law Society agreed that the SOPA operated to create an exception to theprohibition that would otherwise exist against non-lawyer agents appearing on behalf of defendants in matters to which the SOPA applies.Given this position, the Law Society is effectively left to argue that a restriction should be read into the SOPA to the effect that the right itcreates to be represented by an agent should be limited to representation by an unpaid agent. [66] I note that the Chambers judge approached the question from the opposite direction.

He considered, and rejected, the idea thatthe SOPA should be interpreted to allow for paid agents. However, this reasoning is grounded in the erroneous understanding that the LPA

prohibited representation by paid agents. In my respectful view, keeping in mind that the LPA is not properly understood in this way, thequestion is not whether a term can be implied into the SOPA allowing for an agent to be paid; it is whether a term should be implied thatan agent cannot be paid. [67] I am aware that the prohibition against the unauthorized practise of law is, at bottom, a measure designed to protect the public,not establish a lawyers’ monopoly.

Such provisions are designed to “protect the public against persons who, for their own gain, setthemselves up as competent to perform services that imperatively require the training and learning of a solicitor, although such persons arewithout either learning or experience to qualify them” (Rex ex rel Smith v Ott (1950), (ON CA), 97 CCC 302 at 302 (OntCA)). While it is proper to consider the LPA when interpreting the SOPA, limiting the right created by the SOPA to unpaid agents will notavoid conflict with the LPA since the stricture it creates extends to both paid and unpaid agents.

The justification for implying thelimitation must, therefore, rest on a different foundation. I do not see a proper footing to imply such a term into the SOPA. [68] The SOPA is not concerned with the regulation of the legal profession. Its purpose is to set out the procedures governingprovincial

summary offence matters in the Provincial Court. I fail to see how implying a term that would limit a defendant to the use ofunpaid agents is relevant to that object. I would, in fact, see it the other way, since to do so would reduce the pool of available and suitableagents. In this regard, were this Court to now read into the SOPA a requirement that the agent not be paid, it would limit the right to berepresented by an agent to individuals who had a friend or acquaintance, or could find some other volunteer, comfortable with assumingthat role without receiving compensation.

It would prohibit a corporation from being represented by its own paid employees. Brought intothe circumstances of this case, very few defendants to charges under the TSA are likely to consider the charges to merit the expense ofretaining a qualified lawyer, if left with only that choice. I have no doubt that it is these types of considerations that have created the spacein the market for Mr. Zielke to offer his services. [69] Based on all of this, I reject an

interpretation of the SOPA that would restrict the right it creates for defendants to be representedonly by unpaid agents. [70] I have reached this conclusion with only limited reference to case law from other provinces that have grappled with similarissues to the ones I have just considered.

I will briefly mention several further decisions, although, as I will explain, their differentoutcomes are largely a product of the unique statutory framework within which each was decided. [71] In R v Lawrie and Pointts Ltd. (1987), (ON CA), 32 CCC (3d) 549 (Ont CA) [Lawrie ONCA], a formerpolice officer incorporated a company for the purpose of representing persons charged with traffic offences under Ontario’s HighwayTraffic Act, RSO 1980, c 198.

The company’s practice was to be appointed as agent of the person charged pursuant to s. 51(1) of theProvincial Offences Act, RSO 1980, c 400, which contemplated that a defendant subject to that statute could “appear and act personally orby counsel or agent”. The company and its principal were charged with violating s. 50(1) of the Law Society Act, RSO 1980, c 233, whichstated that, “[e]xcept where otherwise provided by law, no [non-lawyer] shall act as a barrister or solicitor”. These charges were dismissedby a judge of the Ontario Provincial Court.

That decision was affirmed on appeal by the Ontario District Court ((1986),(ON SC), 29 CCC (3d) 160) and the outcome was upheld by the Court of Appeal for Ontario. [72] Justice Blair, writing for the Court of Appeal for Ontario, concluded that, if only s. 50(1) of the Law Society Act had to beconsidered, he would have had “little difficulty in deciding that the respondents are not prohibited from carrying on the business of actingas agents for a fee under the Provincial Offences Act”.

He stated that he could “find nothing in the Act that limits the exception in s. 50 ofthe Law Society Act of persons ‘otherwise authorized’ to friends and relatives acting as agents without remuneration”. He concluded onthis point that, “[a]bsent a specific limitation to this effect in the Law Society Act, the court could not read such a restriction into thestatute” (at 558).

Justice Blair went on to determine that consideration of the provision in the Solicitors Act, RSO 1980, c 478, parallelings. 30(2) of this province’s LPA, did not change this conclusion. [73] A different result was reached in Law Society of British Columbia v Lawrie (1987), (BC SC), 38 CCC (3d)525 (BCSC) [Lawrie BCSC].

In that case, an injunction was issued, restraining the same Ontario company of former police officers fromengaging in a fee-for-service business of providing legal advice and counsel in the Provincial Court of British Columbia contrary to theBarristers and Solicitors Act, RSBC 1979, c 29, later replaced by the Legal Professions Act, SBC 1987, c

Section 50 of the OffenceAct, RSBC 1979, c 305, authorized a defendant to appear “personally or by counsel or agent”. Justice Shaw of the Supreme Court ofBritish Columbia, whose decision was affirmed by the Court of Appeal for British Columbia ((1991), (BC CA), 67 CCC(3d) 461 [Lawrie BCCA]), found that the word “agent” was “flexible and can be given a narrow or a broad meaning, depending upon thestatutory context in which it is found” (Lawrie BCSC at 532).

He concluded that “agents referred to in the Offence Act, in the context ofthat Act and the Barristers and Solicitors Act, are duly authorized agents other than those who are prohibited by the Barristers andSolicitors Act from so acting” (at 532).

Integral to this conclusion was a recognition that there was an express exemption for representation“not done for or in expectation of a fee, gain or reward, direct or indirect, from another person and does not include the drawing orpreparing of an instrument by a public officer in the course of his duty, or the lawful practice of a notary public” (Barristers and SolicitorsAct, s. 1). Justice Shaw held that this left scope for agents to act as contemplated in the Offences Act, such as “friends, relatives and otheradvisors who are not paid remuneration” (at 532).

Justice Carrothers, who spoke for the Court of Appeal for British Columbia, agreedwith this

interpretation and also found that there was a “sound historical reason for interpreting ‘agent’ in ss. 50 and 57 of the Offence Actas a person who does not charge a fee for representing a party in the proceeding” (Lawrie BCCA at 472). [74] In Romanowicz, the Court referred to Lawrie ONCA and concluded that “the fact that the representative is a hireling isirrelevant to the accused’s right to a representative of his or her choice to assist in the defence of a

summary conviction proceeding” (atpara 24). The Court also noted that “the fact that the agent is paid [does not] create any presumption as to the agent’s competence” (atpara 29).

I would add the corollary that it can hardly be said that the fact that an agent is not paid does not create a presumption that theagent is not competent. [75] In Pollock MBQB, having found that s. 800 of the Criminal Code operated as an exception to the prohibition against theunauthorized practise of law found in Manitoba’s legal professions legislation, Monnin C.J.Q.B. held that “it matters not whether it isdone pursuant to a fee arrangement” (at para 90). However, he restrained the agent from acting as a paid agent in many other forums.

As Ihave noted, Pollock MBQB was upheld by the Court of Appeal of Manitoba.

[76] As is apparent, the varying results in the cases I have mentioned are explained by the differences in the applicable statutoryframework in each case. That said, each judgment affirms the basic concern that motivated the Law Society’s application to enjoin Mr.Zielke’s activity. The following, taken from Lawrie ONCA, resonates with me in context of this case (at 557): …. While no reflection of any kind was made in this case on the respondents, there must be concern about the absence of any control overthe education, qualification, competence and probity of all agents.

They deal with serious matters because penalties of up to six months’imprisonment apply to some offences under the Highway Traffic Act. No provision exists for disciplining or supervising agents andprotecting the public from financial loss arising from the improper performance of their responsibilities by way of an insurance schemelike that of the law society. [77] However, it is equally obvious from the business that Mr.

Zielke has attracted that he is satisfying a public demand for aservice that is not being met by the legal profession, as were the respondents in the three extra-provincial cases I have reviewed. Theultimate lesson I take from the decisions from other provinces is that it is the responsibility of the Legislature to resolve the issues ofpolicy that involve, on the one hand, issues of public and third party interests that are implicated when non-lawyers provide representationin court and, on the other hand, issues of consumer choice and access to justice.

While the Legislature is responsible for making thesepolicy decisions, the “task of this court is to determine whether, on a proper construction of the relevant statutes, they prohibit what [Mr.Zielke is] doing” (Lawrie ONCA at 557–558). [78] I am satisfied that there is no basis to read into the SOPA a requirement that an agent who represents a defendant in proceedingsunder that statute be unpaid. In my respectful view, therefore, there is a clear clash between the LPA and the SOPA. According to s. 30(1)of the LPA, Mr. Zielke cannot represent a defendant to a

summary conviction traffic offence matter. However, according to the SOPA,that defendant is entitled to representation by an agent, whether paid or unpaid. This conclusion invites consideration of the interactionbetween the SOPA and the LPA. I now turn to discuss this issue. 4. How do the SOPA and the LPA interact? [79] While in some situations it is difficult to reconcile the application of competing statutes, in this case, the solution is providedby the Legislature.

As previously indicated, s. 51 of the SOPA contemplates that its provisions apply notwithstanding any other provincialstatute, and the “provisions of [the SOPA] prevail except to the extent that the other Act explicitly by name repeals or amends [theSOPA]”. [80] In my respectful view, s. 51 decisively answers the question of conflict between the LPA and the SOPA, including thoseprovisions from the Criminal Code incorporated into the latter statute.

Because of s. 51, when the LPA and the SOPA are read together,the SOPA operates to provide an exception to the prohibition set out in the LPA that would otherwise prevent Mr. Zielke from carrying onhis business. [81] I would add one other point in relation to the issue of conflict between the LPA and the SOPA and the Criminal Codeprovisions incorporated into it. The Chambers judge approached questions relating to the application of these Criminal Code provisions ascalling for consideration of the principle of paramountcy that applies to address questions of conflict between federal and provinciallegislation.

It seems that he did so because of how arguments were made to him by the parties. However, as I see it, the principle ofparamountcy is not engaged in this case. [82] Paramountcy is a doctrine that is applied when federal and provincial laws collide. The provisions of the Criminal Code towhich I have referred are not applicable in the matters at issue in this appeal because of their direct application as federal law. Instead, theyapply because they have been incorporated by reference into provincial law by s. 4 of the SOPA.

Legislation “drafted by one level ofgovernment may be incorporated by reference into legislation drafted by another level of government” (B.C.G.E.U. v British Columbia(Minister of Health Services), 2007 BCCA 379 at para 36, 283 DLR (4th) 307, referring to Ontario (Attorney General) v Scott, (SCC), [1956] SCR 137, and Coughlin v Ontario (Highway Transport Board), (SCC), [1968] SCR 569). Asexplained in R v St.

Lawrence Cement Inc. (2002), (ON CA), 60 OR (3d) 712 (CA) at para 18, “incorporation byreference is a common device of legislators in accordance with the maxim verba relata hoc maxime operantur per referentiam rit it eisinesse videntur (words to which reference is made in an instrument have the same operation as if they were inserted in the instrumentreferring to them)”. Justice Borins added that the “effect of incorporation by reference is that the material incorporated is considered to bepart of the text of the legislation”.

See also: R v Sims, 2000 BCCA 437 at para 20, 148 CCC (3d) 308. [83] Based on all of this, the constitutional doctrine of paramountcy does not come into play at all in resolving the issues in thisappeal. This was recognized by Monnin C.J.Q.B. in Pollock MBQB. In that case, he said, with reference to The

Summary Convictions Act,CCSM c S230, that “the issue is not one of paramountcy between the provisions of the federal statute and provincial legislation, but thestatutory

interpretation of provincial legislation, although one piece, is incorporated by reference” (at para 93). [84] In conclusion on this issue, the SOPA operates to provide an exception to the prohibition that would otherwise exist against Mr.Zielke acting as agent in the traffic offence matters that led to the grant of the injunction against him. 5. Conclusion respecting an agent’s representation in traffic offence matters [85] The SOPA allows a defendant to a traffic offence charge in Provincial Court to be represented by an agent. The agent may bepaid or unpaid.

The SOPA provides an exception to the prohibitions found in s. 30(1) of the LPA. It follows that there was no basis torestrain Mr. Zielke from appearing as a paid agent in the Provincial Court in relation to the matters that were brought into evidence beforethe Chambers judge. C. Did the Chambers judge err in law by concluding that s. 33 of the SCA didnot provide an applicable exception to authorize Mr. Zielke’s appearances as a paidagent in small claims proceedings?

1. The Chambers Decision [ 86 ] According to the SCA , parties in small claims matters may be represented by non-lawyer agents: Case management conference 12

(3) All parties to the action: (

a) must attend the case management conference and have authority to settle the claim; and (

b) may be accompanied by a lawyer or agent . … Representation by lawyer or agent 33 The parties may be represented at trial by lawyers or agents . (Emphasis added) [ 87 ] In the introduction to the Chambers Decision , the Chambers judge acknowledged an admission by Mr. Zielke that he represented parties involved in small claims court matters. The Chambers judge also referred to provisions in the SCA that contemplate the use of agents in such matters. However, he did not separately analyze how the SCA interacted with the LPA . 2.

Analysis [ 88 ] In Apesland , Koch J. held that s. 29 of The Small Claims Act, 1997 , SS 1997, c S-50.11 (now s. 33 of the SCA ), entitled parties in small claims matters to representation by non-lawyers. He found that the “use of the words, ‘lawyers or agents’ necessarily implies that a litigant can be represented in proceedings pursuant to [ The Small Claims Act, 1997 ] by an agent who is not a lawyer” (at para 10). He then continued: [10] … If an agent had to be a lawyer there would be no reason for the legislators to have included the word “agent” in the

section at all. It is presumed that the legislature avoids speaking in vain and avoids using superfluous or meaningless words. For the word “agents” to be meaningful it must identify a group of persons who are not lawyers.

See: Sullivan and Driedger on the Construction of Statutes , 4 th ed. (Vancouver: Butterworths, 2002) at page 158. [ 89 ] Justice Koch went on to hold that “the prohibition in the [ LPA ] precluding non-lawyers from conducting court proceedings must be taken as general and the provision for agents in s. 29 of [ The Small Claims Act, 1997 ] to represent parties at Small Claims trials must be taken to create an exception (in addition to those in explicit exceptions in s. 30(2) of the [ LPA ])” (at para 12). [ 90 ] In this appeal, the Law Society accepted the correctness of Apesland , but did so while contending that it should be understood as being limited to recognizing an exemption for unpaid agents, such as friends or relatives of those involved in small claims matters.

The basis for this

interpretation of the case rests on the following comment made by Koch J.: [15] In the present case the appellant admits that he was charging contingency fees for his services as agent. However, he was not convicted of charging fees. He was convicted of conducting a case for [a litigant in a small claims proceeding] without being a lawyer holding a subsisting certificate entitling him to practise as a lawyer. [ 91 ] I do not read paragraph 15 of Apesland as concluding that the exception Koch J. had found to exist was thereby being limited to circumstances where no fee is charged.

Earlier in his judgment, he noted that the Law Society had contended that the appellant was representing the small claims litigant contrary to s. 30(1) (

d) of the LPA . As I read Apesland , Koch J. was interested in the debate between the parties as to whether the Provincial Court was a court within the meaning of that provision. In this overall context, I understand Koch J. to be simply expressing the conclusion that the fact that a fee was being charged is irrelevant, because s. 30(1) (

d) does not depend on whether the representation was done for a fee. As I have previously explained, I agree with Koch J.’s

interpretation of s. 30(1)(

d) on this point. [ 92 ] Although, as I have noted, the Chambers judge did not separately analyze how the SCA interacted with the LPA , he did state that the “interpretation given herein is consistent with the

interpretation previously given to the LPA in [ Apesland ]” ( Chambers Decision at para 17). However, the Chambers judge did not explain why this was the case. If his conclusion is based on an understanding that Apesland found an exemption for unpaid agents only, I must respectfully disagree with the Chambers judge on this point. In any event, Apesland is not binding on this Court. It is, therefore, appropriate to consider the matter as one of first impression by this Court. [ 93 ] I would begin by noting that, for the same reasons that it is impossible to avoid a conflict between s. 30(1)(

d) of the LPA and the SOPA , it is impossible to avoid a conflict between s. 30(1)(

d) of the LPA and s. 33 of the SCA . This is the case even if s. 33 was understood to authorize only the use of unpaid agents. According to s. 30(1) (

d) of the LPA , a litigant in small claims matters cannot be represented by Mr. Zielke, even if a fee is not charged. [ 94 ] When two statutes collide, the Court’s obligation is to determine what law is applicable. This is because of the presumption of coherence. Sullivan explains this as follows: §11.4 Overview of strategies for achieving coherence . The presumption of coherence is virtually irrebuttable. Since disputes must be resolved by the courts in a definitive fashion, in accordance with “the law”, contradiction or inconsistency cannot be tolerated; some method of reconciliation must be found. The courts have a number of strategies to ensure this result.

[ 95 ] The first of the strategies referred to in Sullivan is to “attempt to apply both” statutes (at §11.5). When this cannot be done, as here, different methods for discerning the law must be found. Sullivan provides a non-exhaustive list of the strategies courts employ for this purpose: §11.6 If the provisions cannot both apply without conflict, the courts resort to one of the conflict resolution techniques at their disposal. These include (1) legislative intent, whether express or implied; (2) strained

interpretation; (3) the paramountcy of some categories of legislation over others; (4) implied exception ( generalia specialibus non derogant ); and (5) implied repeal. [ 96 ] The conflict between the SOPA and the LPA was resolved by the Legislature through s. 51 of the SOPA . The SCA does not contain a provision equivalent to s. 51 . Therefore, I see no basis to find an express statement of legislative intent. [ 97 ] I also see no way to resolve the conflict by imposing a strained

interpretation of either the LPA or the SCA . Nor can the conflict be avoided by reading a restriction into the SCA that limits the reference to agents to unpaid representatives, since s. 30(1) of the LPA is not limited in this way. I also am reluctant to conclude that either the SCA or the LPA is the most directly relevant, such to invoke directly the generalia specialibus non derogant principle: see Lorencz v Talukdar , 2020 SKCA 28 at para 90 , 446 DLR (4th) 487.

However, these are not the only bases upon which it can be concluded that one statute provides an exception for the other to operate. [ 98 ] In Lorencz , this Court was concerned with two competing limitation periods. The action was out of time according to s. 72 of The Medical Profession Act, 1981 , SS 1980-81, c M-10.1 , but not according to s. 6 of The Fatal Accidents Act , RSS 1978, c F-11 . The Court found that when resolving a potential conflict between two statutes, “the analysis should remain grounded in the modern principle of statutory

interpretation, subject to these observations: (

a) when two statutes collide, the context is broader since the ‘statutory scheme’ includes both pieces of legislation; and (

b) while the two pieces of legislation may tug in different directions, for the purposes of applying the modern principle, there should be an attempt to determine if a common goal or goals of the corpus of legislation can be discerned” (at para 139). It was held that the statute that provided the longer period within which to sue operated as an exception to the statute that provided the shorter time frame. Consistent with s. 2 - 10 of the Legislation Act , the analysis in Lorencz suggests that the court should adopt a purposive approach when resolving the conflict between two statutes.

In my respectful view, this provides the most appropriate way to resolve the clash between the two pieces of legislation. [ 99 ]

Section 33 of the SCA creates a positive entitlement. It provides that “parties may be represented at trial by lawyers or agents ” (emphasis added). A purposive meaning can be given to this provision only if it serves to provide an exception to the prohibition that otherwise exists because of s. 30(1)(

d) of the LPA and perhaps other parts of s. 30(1). On the other hand, s. 30(1) of the LPA can still be given meaningful application if s. 33 is recognized as providing an exception to it. Most obviously, s. 30(1) will continue to prohibit representation by non-lawyers, whether paid or unpaid, in the Court of Queen’s Bench, in this Court, or in other courts where an exception like s. 33 of the SCA does not exist. [ 100 ] I would, in all these circumstances, conclude that s. 33 of the SCA operates to authorize representation by an agent, without qualification as to whether the agent received payment or reward.

This authorization serves as an exception to the prohibition set out in s. 30(1) of the LPA . 3. Conclusion respecting an agent’s representation in small claims matters [ 101 ] The SCA authorizes a litigant in small claims matters to be represented by an agent. The agent may be paid or unpaid. The ability of an agent to appear in proceedings subject to the SCA operates as an exception to s. 30(1) of the LPA . For this reason, I see no basis for an injunction to issue against Mr. Zielke to preclude his representation of parties in small claims matters. D. Other issues 1.

Changes to the LPA [ 102 ] As I have already mentioned, the LPA was amended after the events giving rise to this appeal. All the parties agreed that a decision in this case should be made without reference to those amendments. These reasons therefore do not consider if the result would be the same under the amended legislation. 2. Form of injunction [ 103 ] I have concluded that the injunction against Mr. Zielke must be set aside. Because of this, it is not strictly necessary to deal with whether the form of injunction granted by the Chambers judge was appropriate.

However, it is in order to address one aspect of it. [ 104 ] The injunction granted by the Chambers judge tracked the language of s. 30(1) of the LPA and restrained Mr. Zielke from: (

a) practising at the bar of any court of civil or criminal jurisdiction in Saskatchewan; (

b) advising, doing or performing any work or service for a fee or reward, directly or indirectly, in matters pertaining to the law of Saskatchewan or of any jurisdiction outside of Saskatchewan; (

c) suing out any writ or process; and (

d) commencing, carrying on or defending any action or proceeding in any court, unless and until he is approved and licenced by the Law Society to do so. [ 105 ] In this Court, the Law Society acknowledged that the injunction restrained actions by Mr. Zielke that were not prohibited by the LPA . To give the most obvious example, the Law Society agreed that Mr. Zielke could represent third parties, such as family members, in small claims or

summary conviction offence proceedings for offences under the TSA . However, the form of injunction granted by the Chambers judge would prohibit even this lawful activity. Even beyond this point, because of the ambiguity in the statutory language, a person in Mr. Zielke’s position would likely have great difficulty in understanding the scope of the prohibition the judge ordered. For example, counsel for the Law Society had difficulty explaining the scope of s. 30(1)(

b) in the context of the work of many professionals and tradespeople – other than lawyers – given it prohibits providing “work or service for fee or reward, either directly or indirectly, in matters pertaining to the law of Saskatchewan”.

[106] For these – and other reasons – it has been held to be “preferable that a statutory injunction not simply repeat the language of thestatute relied upon” (Law Society of Upper Canada v Chiarelli, 2014 ONCA 391 at para 34, 120 OR (3d) 561). In Chiarelli, Hourigan J.went on to explain that this “is for the practical reason that such an injunction may be difficult to enforce by way of a contempt proceedingif the terms of the order are not sufficiently specific and clear”, making reference to Robert J.

Sharpe, Injunctions and SpecificPerformance, loose-leaf (Toronto: Thomson Reuters, 2013) at paras 3.265 and 6.10. I would add to this that ongoing respect for the rule oflaw demands that injunctions that restrain a person’s conduct be sufficiently precise to only enjoin conduct that is illegal and be set out interms that allow the party subject to restraint to know with sufficient clarity the scope of prohibited conduct. 3. Appearance of agents in other matters [107] I have restricted my analysis to the question as to whether Mr.

Zielke was properly restrained from representing defendants totraffic offence proceedings under the SOPA and representing litigants in small claims matters under the SCA. Although my reasoning hasrequired me to consider many provisions of the SOPA, including those from the Criminal Code incorporated into it, I offer no comment asto whether a paid or unpaid agent can appear in other types of proceedings in connection with which other statutory provisions apply. Forexample, there was evidence before the Chambers judge that Mr. Zielke was offering to provide services to clients in residential tenanciesmatters.

In this Court, Mr. Zielke and the Law Society both referred to provisions of The Residential Tenancies Act, 2006, SS 2006, c R-22.0001 [RTA], that contemplate the use of agents in that forum. However, the Chambers judge did not rely on this evidence in making hisdecision, nor did he refer to the RTA. Because of the

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