PRACTICE |
Representation by Attorney or Solicitor |
Artemis Holdings Ltd. v. Canada (Customs and Revenue Agency)
T-433-02
2002 FCT 504, Hargrave P.
30/4/02
9 pp.
Motion to allow sole officer, shareholder to represent company in judicial review proceedings--R. 120 requiring company to be represented by solicitor unless special circumstances persuading Court to allow officer to represent company--Kobetek Systems Ltd. v. The Queen, [1998] 1 C.T.C. 308 (T.D.) setting out factors to consider when lay person applies to represent company--(1) Neither company nor proposed representative can afford lawyer--(2) Proposed representative cannot avoid acting both as advocate, witness-- Only person with any knowledge of facts--Often analogy between lawyers acting as witnesses and lay persons acting as witnesses--S.A.R. Group Relocation Inc. v. Canada (Attorney General), 2002 FCA 99; [2002] F.C.J. No. 367 (C.A.) (QL), recognizing dual role of representative and witness "militating" (making strong argument or influence) against allowing lay representative, officer of corporation, to act as representative when that person might be a witness--That dual role less than absolute bar consistent with r. 120 by which Court, in special circumstances, may grant officer of company privilege of representing that company as advocate --Narrower view rendering r. 120 exception meaningless in many circumstances and certainly meaningless in case of incorporated sole proprietorship--(3) May look to affidavit material, record to determine complexity--Affidavit not addressing issue, but record dealing with complexity by inference in that applicant referring to extensive documentary evidence--With reasonable effort to understand Federal Court Rules, and research into nature of judicial review, proposed representative, who has produced understandable but wordy application, likely able to deal with issues--(4) Material presented on motion coherent, reasonably presented-- Proposed representative will have to put some effort into fully understanding time lines set out in Rules, procedure, nature of judicial review--To deny applicant representation by sole officer would deny company day in court--Thus special circumstances required by r. 120 exist--Federal Court Rules, 1998, SOR/98-106, r. 120.