Representation - Paralegal and Lay Representatives - Court. Gotlibowicz v. Gillespie
In Gotlibowicz v. Gillespie (Div Court, 1996) the Divisional Court held that only lawyers or parties themselves (not non-lawyer representatives such as paralegals) are allowed to act for parties in statutory appeals to the Divisional Court or in judicial reviews: Gillespie v Gotlibowicz (Ont Div Ct, 1996):
Counsel for the respondents points to s. 1 of the Solicitors Act, R.S.O. 1990, c. S.15, which provides that it is contempt of court for a non-lawyer to represent a party in a proceeding:
1. If a person, unless a party to the proceeding, commences, prosecutes or defends in his or her own name, or that of any other person, any action or proceeding without having been admitted and enrolled as a solicitor, he or she is incapable of recovering any fee, reward or disbursements on account thereof, and is guilty of a contempt of the court in which such proceeding was commenced, carried on or defended, and is punishable accordingly.....
I note that "proceeding" is not defined in the Solicitors Act. However, this section must be read together with s. 50 of the Law Society Act, R.S.O. 1990, c. L.8, which prohibits acting as a barrister or solicitor and is not limited to proceedings.
50(1) Except where otherwise provided by law, no person, other than a member whose rights and privileges are not suspended, shall act as a barrister or solicitor or hold himself, herself or itself out as or represent himself, herself or itself to be a barrister or solicitor or practise as a barrister or solicitor.....
(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
(3) A proceeding shall not be commenced in respect of an offence under subsection (2) after two years after the date on which the offence was, or is alleged to have been, committed.
(4) Where a conviction has been made under subsection (2), the Society may apply to a judge of the Ontario Court
(General Division) by application for an order enjoining the person convicted from practising as a barrister or solicitor, and the judge may make the order and it may be enforced in the same manner as any other order or judgment of the court.
(5) Any person may apply to a judge of the Ontario Court
(General Division) for an order varying or discharging any order made under subsection (4).
In my view, in light of the statutory provisions referred to above, to the extent that the court has discretion to allow a non-lawyer to represent a party as agent before it, as opposed to allowing a friend or family member to assist someone who is acting in person, it would be inappropriate for the court to ignore s. 1 of the Solicitors Act and s. 50 of the Law Society Act and, in effect, condone activity which the legislature characterizes as contempt of court and prohibits under penalty of prosecution. Furthermore, the statutory or legislative scheme which is reflected in a number of statutes which do provide for non-lawyers to appear, and which in some cases provide conditions of competence, suggests that in any other circumstance, non-lawyers are not to appear representing parties in court or other statutory proceedings.
There are no special circumstances in this case. The argument was not that this is a special circumstance, but that the court should allow agents to represent landlord and tenant parties before the Divisional Court in rent control matters because these matters are analogous to Landlord and Tenant Act matters.
I reject this submission. I note that this motion for an extension of time to file the appeal does not call on any rent control expertise but rather expertise in litigation procedure. Unless there is statutory authority to allow a non-lawyer to represent a party before a court, the rule is that that person is prima facie not to do so, based on the Law Society Act and the Solicitors Act. It seems to me that this is the proper way this matter should be approached. It must be clear to agents and their clients exactly what functions they are entitled to perform and which functions they are not. It should not be left to an ad hoc case-by-case determination whether a court will allow an agent to appear on behalf of a client in a rent control matter, with the risk that the client's interest may be severely compromised if the agent is not granted permission to appear. Unnecessary and costly adjournments may also be the consequence.