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Presentation - Corporate Directors

Corporate representation by other than a lawyer is allowed with the Superior Court's permission (sought by motion): RCP R15.01(2) and by Small Claims Court practice. Representation by a director is common for a small, closely-held corporation.

. Canada v. BCS Group Business Services Inc.

In Canada v. BCS Group Business Services Inc. (Fed CA, 2020) the Federal Court of Appeal considered when a corporation might be represented by a non-lawyer under Rule 17.1 of the Tax Court Rules, which read (in English):
"Right to appear "

"17.1 (1) A party to a proceeding in respect of which this section applies may appear in person or be represented by counsel, but where the party wishes to be represented by counsel, only a person who is referred to in subsection (2) shall represent the party. "

"Officers of the Court "

"(2) Every person who may practise as a barrister, advocate, attorney or solicitor in any of the provinces may so practise in the Court and is an officer of the Court. "


"Informal Procedure "

"Right to appear "

"18.14 All parties to an appeal referred to in section 18 may appear in person or may be represented by counsel or an agent."
The court, finding that a corporation had to have a lawyer, continued:
[13] As for the relevant legal context, at the time section 17.1 of the Act was drafted, neither the common law nor the civil law (as codified in the Code of Civil Procedure of Quebec (CCP)) recognized that a corporation could appear "“in person”" through its officers, directors, or shareholders. The reason for this at civil law was explained as follows by Gonthier J. in National Bank of Canada v. Atomic Slipper Co., 1991 CanLII 105 (SCC), [1991] 1 S.C.R. 1059 at 1070, emphasis added:
As a preliminary point, I would note that Tardi [a physical individual] and Atomic [a corporation] were not represented by counsel. Tardi is fully entitled to appear on his own behalf, but he claimed to represent Atomic. The very nature of a corporation is such that it cannot appear in person (art. 365 C.C.L.C.). It can only appear through an agent. In Quebec, only lawyers are entitled to represent a party before the courts (art. 61 C.C.P. and s. 128 of the Act respecting the Barreau du Québec, R.S.Q., c. B-1) and it follows that a corporation can only appear in court through counsel (Thomassin v. General Finance Corp., [1953] Que. Q.B. 375).
[14] In Trifidus Inc. v. Samgo Innovations Inc. et al., 2011 NBCA 59 at paragraph 20, Justice Quigg uses similar words to describe the state of the common law. She wrote that "“[u]nlike individuals, who are legally and logically capable of self-representation, corporations must inevitably rely on representation by individual agent. Even if the agent is the corporate director and sole shareholder, he or she is still considered to be legally distinct from the corporation and, therefore, a third party to it.”"

[15] It is useful in such circumstances to put GP Rule 30(2) in context and to consider that it is not unique in its approach. Courts, including statutory courts like the Federal Courts, have an implicit power or discretion to control their own process, unless limited by specific legislation (see for example article 87 of Quebec’s CCP, which lists who must be represented by counsel). This is why for many years, many courts have adopted rules of procedure allowing them to grant leave to corporations to be represented by physical individuals other than counsel in special circumstances. This has become particularly important given the increase in the legal costs of litigation and the need to foster access to justice. This approach, based on a by leave process, enables the court to balance this need with the need for efficiency in the administration of justice. In none of those cases did a statute give a corporation a statutory right to appear "“in person”". The granting of leave is a privilege arising from the court’s discretion to control its own process. Therefore, this discretion can be taken away by an express clause in the legislation constituting the court when Parliament expressly deals with representation in the courtroom.
The case contains a (perhaps over-prolonged) discussion of corporations as a legal entity and their legal representation, it concludes that corporations have a separate legal existence from their directors and shareholders and that the quoted Tax Court Rules do not tolerate legal representation by such as agents:
[64] I conclude from all of the above that on the proper statutory interpretation of section 17.1 of the Act, the TCC could not find that Mr. Gagnon personified BCS and that he was exercising BCS’s right to appear "“in person”". As Mr. Gagnon is not a lawyer, he could not act as counsel for BCS. The TCC could not grant leave to Mr. Gagnon to act as BCS’s agent in the appeal before it.
. Sloane Capital Corp. v. Beacon Holdings Ltd.

In Sloane Capital Corp. v. Beacon Holdings Ltd. (Div Court, 2023) the Divisional Court considered the cost rules that apply in the Small Claims Court where a corporate director represents a corporation (and, it concludes, is thus 'self-represented'):
[50] The Deputy Judge awarded the Respondent costs in the sum of $5,250.00 plus disbursements of $422.00. The Respondent was self-represented. Given that the decision was a nullity, that costs award is set aside.

[51] However, I should address the issue of the appropriate quantum of costs for the hearing below. Mr. Freedman was representing his company and was not a lawyer. As a result, it appears that Rule 19.05 of the Rules of the Small Claims Court (“the Rules”) O. Reg. 258/98 apply. That rule states:
19.05 The court may order an unsuccessful party to pay to a successful party who is self-represented an amount not exceeding $500 as compensation for inconvenience and expense.
[52] Given that Mr. Freedman was self-represented, the Deputy Judge erred in law by awarding costs of $5,000.00 to Mr. Freedman. Costs should have been limited to no more than $500.00 for inconvenience. Mr. Freedman was, in my view, a self-represented litigant.


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