Appeal from a decision of a Case Management Judge — can a judge override a prohibition in the Legal Profession Act?

The appellant wished to be represented by six English barristers, and argued that the Case Management Judge erred because he failed to consider or weigh evidence in relation to his “right and power to allow non-qualified barristers from another country to act for them in this suit.” (para 41). The Appeal judge rejects the argument that the Case Management Judge has such a right to override the prohibition in s.106 of the Legal Profession Act, which states that to act in an Alberta court, it is necessary to be on the roll of a relevant or reciprocating law society or Bar.

The appellant also argued that there is an exception when the work is unpaid. Again, this argument was rejected. The primary reason given is that the “prime aim of the Legal Profession Act and its predecessors is to protect the public from the incompetent or unethical lawyers or advocates.” (para 17) An exemption for unpaid work would undermine this object, as it would place lawyers who take on a client for free, in particular, a client who cannot afford to pay, and cannot afford recourse if they receive poor representation, outside the authority of this Act.

“It is in the interests of society to have people trust lawyers.” (para 20)

Held: The appeal is dismissed with costs.

Lameman v. Alberta, 2012 ABCA 59

Reasons for Judgment Reserved of The Honourable Chief Justice Fraser – Concurred in by The Honourable Mr. Justice Watson.

Reasons for Judgment Reserved of The Honourable Mr. Justice McDonald – Dissenting in Part.

“The appellant, Condominium Corporation No. 0321365 (Condo Corporation), owns the common property of a seven building condominium complex in Fort McMurray known as Alfred Penhorwood Place (Condo Project). The Condo Project consists of 168 units. Real Estate Strategies Group Inc. (RESG) was involved with and in some fashion assisted purchasers of 72 of the units in the Condo Project. Together with a representative plaintiff for the condominium unit holders, the Condo Corporation is suing a number of defendants for damages to remedy the alleged faulty design and construction of the Condo Project. The defendants include the developer of the Condo Project, 970365 Alberta Ltd. (970365) and the respondent, MCAP Financial Corporation (MCAP), which provided interim financing to 970365 for the Condo Project.

The appellants allege that the Condo Project, which they characterize as a “disaster”, suffers from several serious problems [...]

MCAP applied under Rule 159(2) of the former Alberta Rules of Court (Old Rules) seeking a summary judgment dismissing all the appellants’ claims against MCAP. [...]

After hearing MCAP’s summary judgment application on its merits, the chambers judge granted summary judgment dismissing all claims against MCAP. It is from this decision that the appellants now appeal.

I have concluded that the appeal must be allowed in part. An inspection of undoubted law plus arguable or provable law shows that there are several material factual disputes interlocked with significant legal issues, all of which need to be tried. This is particularly so where, as here, the  legal issues in dispute are unsettled or complex or intertwined with the facts: Tottrup v Clearwater (Municipal District No. 99), 2006 ABCA 380, 401 AR 88 at para 11.“

Condominium Corporation No. 0321365 v MCAP Financial Corporation, 2012 ABCA 26