Date: 20000623
Docket: IMM-1304-00
Between:
HUMBERTO BUSTAMANTE GUZMAN and
ALMA LINDA OJEDA ARCE,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] The respondent appeals an order of Prothonotary Morneau, who dismissed the Minister's motion asking that the application for leave and for judicial review be dismissed on the ground that no one acting on behalf of the applicants was qualified to represent them.
[2] This appeal is directed in particular at two decisions rendered in two cases[1] which themselves combine other cases.[2] In so far as the problem raised by the respondent was the same in each case, although the applicant's "representative" varied in some of them, the prothonotary rendered only two decisions, the reasons applying mutatis mutandis to the other cases. On appeal, the substantive arguments are the same in all the cases, each presenting some variations as to the facts, however. I intend, therefore, to begin with the substantive issue; in each respective case I will analyze the particular facts of the case.
[3] A summary of the general facts is necessary. In each case the respondent filed a motion to dismiss these applications for leave and for judicial review, alleging that it was faced with an endemic problem in the immigration field owing to the unlawful practices of individuals who are not lawyers[3] drafting and filing proceedings in this Court. The respondent submitted, inter alia, that this procedure was in conflict with section 11 of the Federal Court Act (the Act) and Rule 119 of the Federal Court Rules, 1998 (the Rules). The respondent's motion was dismissed in IMM-1320-00 in language that is worth reproducing:
[3] Clearly, the Court could not approve of non-lawyers performing activities reserved exclusively for members of the bar. However, even though this may have actually occurred in these files, and although the applicant in every file but this one failed to respond to the respondent's motion, I am not satisfied that the evidence leads to a clear and definite finding that in every file, activities reserved for lawyers were carried out by non-lawyers, or that the applicants cannot be regarded as representing themselves. The respondent has pointed out only some possible signs of such activity. It does not appear that the respondent questioned any interested party in any of the files in order to support her position. Nor does it appear from the files that the respondent informed the authorities responsible for sanctioning unauthorized professional practice about the situation.
[4] Furthermore, even if I were satisfied that unauthorized professional practice is evident from the files, I am not persuaded that the remedy to be granted against the applicants --- themselves victims in some way of this illegal representation --- would be to dismiss their Application. In light of my finding with respect to the respondent's evidence, I do not need to consider what would be the appropriate remedy or order other than dismissing the Application. The respondent has not suggested any such alternative.
[5] The respondent's motion will therefore be dismissed without costs.
Regarding cases IMM-1303-00 and IMM-1304-00, the prothonotary found that the applicants' lawyer was no longer registered on the Roll of the Order of Advocates, but added:
However, I am not convinced that the remedy to be granted by this Court should be to strike out the application. This remedy would appear to the applicants to be harsh to resolve the situation which is most likely unknown to them.
[4] In short, while expressing disapproval that individuals act as lawyers without being so, the prothonotary thought the signs as to whether the applicants had acted alone or through unqualified persons were unsatisfactory. He also suggested that the respondent could have proceeded in a different fashion and that in any case the remedy sought was excessive in comparison with the "fault" committed.
[5] In my opinion, the prothonotary was completely right to say that the Court should not approve of third parties who are not lawyers doing things that are within the exclusive jurisdiction of members of the Bar. And his exacting attitude in regard to evidence that persons are acting irregularly on behalf of others, and in particular his reluctance to dismiss an application for leave on that ground is based on a meritorious natural reflex that can only be encouraged.
[6] But, harsh as the sanction is - the dismissal of the application for leave - I am nevertheless of the opinion that the appeal should be allowed and the applications for leave dismissed.
[7] It is the Court's role and duty to guarantee compliance with the Act and the Rules, and to ensure that those who appear before it or draft proceedings for the purpose of asserting rights are officers of the Court (sections 11(1) and (3) of the Act and Rule 119).[4] In my view, the prothonotary's discretion in the case at bar reflected an overly restrictive assessment of the respondent's evidence. The facts put in evidence in each of the respondent's motions constituted much more than signs, and ought to have pointed inexorably to the conclusion that in each case the application for leave and for judicial review by the applicants had been prepared and drafted by an agent who could not act as a representative in this Court. It is true that an applicant may, under Rule 119, act in person, but if he decides to be represented the rule is clear and he must be represented by a solicitor. I acknowledge, incidentally, that it is not the respondent's role to ensure compliance with the Bar Act; that is the job of the professional organization that represents advocates. But I do think it falls within his duty as an officer of the Court to draw the Court's attention to such a flagrant breach of its rules.
[8] With respect to this case IMM-1304-00, it appears that at the time when the application for leave and for judicial review was filed with the Registry by Mr. Gordon J. Prieur on behalf of his clients, he was no longer registered on the Roll of the Order of Advocates of the Barreau du Québec, having been struck by the administrative committee of the Barreau on October 25, 1999. And as the affidavit of Jocelyne Anctil indicates, Gordon J. Prieur had not regularized his situation at the time of filing of the proceedings.
[9] I conclude from this that Gordon J. Prieur was not qualified to represent the applicants in this Court and that accordingly the application for leave and for judicial review must be dismissed.
[10] For these reasons, the Court allows the respondent's appeal and dismisses the applicants' application for leave and for judicial review.
ORDER
The respondent's appeal from the decision of the prothonotary R. Morneau rendered on April 27, 2000 is allowed and accordingly the application for leave and for judicial review of the applicants is dismissed.
Judge
Ottawa, Ontario
June 23, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-1304-00
STYLE: HUMBERTO BUSTAMANTE GUZMAN and
ALMA LINDA OJEDA ARCE
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAY 15, 2000
REASONS FOR ORDER OF DENAULT J.
DATED: JUNE 23, 2000
APPEARANCES:
UNREPRESENTED THE APPLICANTS
DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS OF RECORD:
GORDON J. PRIEUR FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
[1] IMM-1303-00 and IMM-1320-00.
[2] The decision rendered in IMM-1303-00 applied as well to IMM-1304-00, and the decision in IMM-1320-00 applied as well to IMM-1219-00, IMM-1220-00, IMM-1221-00, IMM-1237-00 and IMM-1232-00.
[3] In IMM-1303-00 and IMM-1304-00, the applicants' representative was no longer a lawyer, having failed to pay his dues, and was thus no longer registered on the Role of the Quebec Order of Advocates.
[4] 11.(1) Barrister or advocate - Every person who is a barrister or advocate in a province may practise as a barrister or advocate in the Court.
(2) . . .
(3) To be officers of the Court - Every person who may practise as a barrister, advocate, attorney or solicitor in the Court is an officer of the Court.
11.(1) Avocats - Les avocats qui exercent dans une province peuvent agir à titre d'avocats à la Cour.
(2) . . .
(3) Qualité de fonctionnaire judiciaire - Quiconque peut exercer à titre d'avocat ou de procureur à la Cour en est fonctionnaire judiciaire.
119. Individuals - Subject to rule 121, an individual may act in person or be represented by a solicitor in a proceeding.
119. Personne physique - Sous réserve de la règle 121, une personne physique peut agir seule ou se faire représenter par un avocat dans toute instance.