T-4266-79
The Queen (Plaintiff)
v.
Air Age Distributors Ltd. (Defendant)
Trial Division, Cattanach J.—Ottawa, January 20,
1981.
Practice Plaintiff seeking order as to whether defendant
can continue to be unrepresented by a solicitor — Defendant
presumed to be a corporation — Rule 300(2) requires a
corporation to be represented by solicitor — Notice filed by
defendant's solicitor to the effect that he was ceasing to act as
such Notice directed to Clerk of the Court and to plaintiffs
solicitor — Consideration of application premature and thus
adjourned until requirements under Rule 300(7) and Rule 324
are fulfilled — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 11 — Federal Court Rules 2, 300(2),(3),(5),(7), 324.
MOTION pursuant to Rule 324.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Mark A. Henbury, Calgary, for defendant.
The following are the reasons for judgment and
order rendered in English by
CATTANACH J.: The plaintiff by her notice of
motion dated at Edmonton, Alberta, January 8,
1981, seeks an order for advice and direction as to
whether the defendant to this action can continue
to be unrepresented by a solicitor.
There is no specific allegation in the statement
of claim that the defendant herein is a corporation
and if so by virtue of what jurisdiction that status
was conferred. The concluding word of the name
of the defendant as recited in the style of cause is
the abbreviation of the word "Limited", that is
"Ltd." At one time federal legislation provided
that a company incorporated under federal juris
diction shall have as the concluding word of its
corporate name the word "Limited" or its
abbreviation. The same was generally true of most
provincial legislation in this respect. However this
requirement appears to have been amended in
many jurisdictions. The point remains that the
logical assumption following from the use of the
name of the defendant with the concluding word
"Ltd." in the statement of claim and statement of
defence and the tacit admission thereby that the
defendant is a corporation as well as in the sup
porting material to the application herein is that
the defendant is a corporation.
Rule 300(2) provides that a body corporate may
not begin or carry on a proceeding in this Court
otherwise than by an attorney or solicitor. These
qualifications are defined in the Rules as a person
who is so defined in section 11 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
An exception is made in Rule 300(2) where the
provision of any enactment so permits. No such
exception appears to be applicable in the present
matter.
A statement of defence dated November 6, 1979
to the statement of claim was filed on November
7, 1979. That statement was signed by Mark A.
Henbury and is endorsed to the effect that the
statement of defence was filed on behalf of the
defendant, Air Age Distributors Ltd. "by Mark A.
Henbury, Esq., Barrister and Solicitor, Solicitor
for the Defendant whose address for service is in
care of the said solicitor at 310 Marlborough
Professional Building, 624-36th Street N.E., Cal-
gary, Alberta, T2A 5H5."
By virtue of Rule 300(3) Mr. Henbury is
deemed to be the "solicitor of record" as defined in
Rule 2 and he remains as such until a change is
effected in the manner provided by either para
graph (5) of Rule 300 on the initiative of the party
which has not been done or by the attorney or
solicitor who has acted by invoking paragraph (7)
of Rule 300.
Rule 300(7) reads:
Rule 300... .
(7) Where an attorney or solicitor who has acted for a party
in a proceeding has ceased so to act and the party has not given
notice of change in accordance with this rule, the attorney or
solicitor may, upon reasonable notice to his former client as
well as to the opposite party (the Court will, upon the return of
the motion, decide whether the notice given was reasonable in
the circumstances), apply to the Court for an order declaring
that the attorney or solicitor has ceased to be the attorney or
solicitor acting for the party in the proceeding, and the Court
may make an order accordingly, but, unless and until the
attorney or solicitor serves on every party to the proceeding a
copy of the order and files evidence of such service, he shall,
subject to the other provisions of this rule, continue to be
considered as the attorney or solicitor on the record of the
party.
The marginal note to Rule 300(7) reads:
"Application for recognition of having ceased".
On February 1, 1980 the solicitor for the
defendant filed a notice dated January 31, 1980
that he "ceases to act" as such.
That instrument bears the notation that it was
directed to the Clerk of the Court and to the
solicitor for the plaintiff.
That instrument was a mere notice to the per
sons to whom it appears to have been directed—
nothing more.
It is not an application to the Court for an order
declaring that the solicitor for the defendant has
ceased to act as such supported by the requisite
affidavits including those of service and since no
such application for an order was made no order
was granted.
Therefore Mark A. Henbury continues to be
considered to be the solicitor of record for the
defendant until an order issues declaring the con
trary to be the case.
Mr. Henbury was so advised upon receipt of the
notice of the Deputy Clerk of Process by letter
dated February 14, 1980 which the solicitor of
record apparently saw fit to ignore.
The present application is made on behalf of the
plaintiff pursuant to Rule 324. By virtue of Rule
324 a party who so requests by letter addressed to
the Registry may have the application considered
upon written representations or upon the consent
of the other party without personal appearance.
No such letter, representation or consent accom
panied the application. Perhaps the supporting
affidavit to the application and the notice of
motion may be widely construed as "written
representation" in light of the facts alleged and
established therein.
However when a request is made to have the
matter considered without personal appearance a
copy of the written representations and the notice
of motion are required to be served on each oppos
ing party as well as the letter of request.
There is no evidence by the usual affidavit of
service that this has been done.
It can be understood that the plaintiff might
have been in a quandary as to the person or
persons on whom service should be effected.
But in any event no application shall be con
sidered until the persons adverse in interest have
had' a reasonable opportunity to make written
representations in reply or to apply for an oral
hearing of the matter.
In view of these circumstances consideration to
the present application is premature.
Because Mr. Henbury continues as the solicitor
of record until either the party effectively dis
charges him and changes to another solicitor of
record under Rule 300(5) or until Mr. Henbury
himself has applied to the Court for an order
declaring that he has ceased to be the solicitor
acting for the defendant it follows that service of
this notice of motion shall be served upon the
solicitor of record together with all requisite sup
porting material.
In my view it is mandatory that service shall be
so effected.
Provision is also made in the Rules as to the
manner in which service is to be made upon a
corporation.
Ex abundanti cautela service should also be
effected upon the defendant corporation. The fact
that service is effected upon the corporation does
not in any way detract from the clear and
unequivocal language in Rule 300(2) to the effect
that a body corporate may not begin or carry on
any proceeding otherwise than by a solicitor unless
it can be established that express statutory excep
tion exists for the contrary being the case and
service upon the corporate defendant is not to be
construed as permitting any proceeding to be con
ducted on behalf of a corporation other than by a
solicitor.
It would also be helpful, when these conditions
precedent to the application have been complied
with and the application, when renewed, is further
supported as indicated herein that representations
might also be made as to who should bear the costs
of the application including the solicitor of record
personally.
ORDER
Consideration of the application herein is pre
mature and is accordingly adjourned until the
conditions precedent and supporting material
indicated herein have been fulfilled and the
application renewed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.