Supreme Court

SC CW -15" OOcZ IN THE SUPREME COURT OF THE NORTHVIEST TERRITORIES BETWEEN: NORTHERN HOMES LIMITED, Plaintiff - and

STEEL-SPACE INDUSTRIES LIMITED and W. R. HOLDINGS fN.W.T.) LIMITED, Defendants REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE '.V. G. MORROW The DefendTiant W. R. Holdings (N.W.T.) Limited (here-inafter called the defendant) is the registered owner of Lots 771-2, 765 and 766 in Hay River filed uiider Plan 397. Tv;o claims for lien show as having been filed in the Land Titles Office at Yellowknife on August 29, 1974 by Northern Homes Limited (here-inafter called the plaintiff). The first bearing number 13985 is for $1048.00 and the second bearing number 13986 is for $6,587.47. These claims for lien were filed pursuant to the requirements of Section 23 of the Mechanics ' Lien Ordinayice, 0.N.W.T. 1956, c. 66. Sections 24 and 25 of the above Ordinance read as follows: ' 24. Every lien that has been duly deposited under this Ordiriaaco shall absolutely cease to exist ?.f:;er the ex])iration of -uiiiety days aiie:- the v/ork has been completed or materials

- 2 -"or mach » mery furni shed o r wages earned or the cxpi ry of the period of cred it who re su ch per iod is mention ed in the c 1 a i m 0f lien filed, unless in t he me an t ime proceed ihgs a re in stitut ed under this Or dinanc e to .r ealiz e the claim a nd a c ertif icate thereof (which may be gran ted by the Court i n whic h or the ju dge be­fore wh om the proc ceding s are institu ted) i s duly regi stered in the land t itles of fie e of the Ian d regi strat ion di strict wherein the p roper ty in respect of whic h the lien is cla imed is situate d. 25. If there is no period of credit or if the date of expiry of the period of credit is not stated in the claim so filed, the lien shall cease to exist upon the expiration of ninety days after the v;ork has been completed or materials or macliinery furnished unless in the meantime proceedings have been instituted pursuant to section 24."

To protect its position as required by the two sections set forth above, the Plaintiff issued a Statement of Claim, seeking a declaration that it had a valid and sub­sisting Mechanics Lien, judgment in the sum of $6,583.75 and certain other relief of no concern in the present proceedings. This claim was issued at the Court House on October 28, 1974. At the same time a Certificate of Lis Pendens was filed v>'ith the Clerk of Court. On November 15, 1974 the Defendant filed a Statement of Defence denying the validity of the claims made ^ and alleging that in any^ event the work was negligently carried out and abandoned.

- 3-Thc present motion before me is for an Order vacat­ing the registration of lien No. 13986 pursuant to Section 27(7) of the Ordinance. On tlie hearing, counsel for the Defendant, applicant, made a preliminary objection to me hearing representations from a Mr. Penner, who appeared as President and Director of the Plaintiff Company, the plaintiff otherwise having no legal representation. Upon examining the record it appears that both the Statement of Claim and the Lis Pendens were filed in the name of the Company without any legal representation at all. Because of the importance of the matter* raised, par-ticulari) where tiie Ordinance requires an action to be brought (1 or the lien expires (Sections 24 and 25 above) I invited the solicitor for the Territorial Government to submit argument as well as hearing argument from defence counsel and Mr. Penner in person. Defence co msel in effect put forth two argum.ents: (1) The action has not been properly commenced because the Statement of Claim has been issued by the Company and not by a solicitor. (2) Mr. Penner cannot make repre­sentations on belialf of the Company even tliough he is President and a director. The Alberta Rules of Court apply in the Northwest Territories: Judicature Ordinance, O.N.V.'.T. 1970 (3d) s. 25(1).

i The formal requirements of a statement of claim are set forth in Rule 88, the pertinent parts of which read:

"88. The statement of claim and all copies which arc served shall have at the foot or end thereof or en­dorsed thereon or attached thereto (a) if the s tatement of claim is issue d by a solicitor for the plaintiff, a statem.en t to that effect and tlie solicitor's name and addr ess for service; or if by a solicitor as agent fo r another solicitor, the soli citor's name and and addr ess and also the agent's name and address for serv ice, « (b) if the statement of claim is issued by the plaintiff in person, a statement to that effect and the plaintiff's address for service, (c) a statement of the plaintiff's residence, (d) a statement of the defendant's residence so far as known to the plaintiff, and" It will be seen from the above that provision is made for issuing a statement of claim by two possible methods. One by a solicitor in wliich case subsection (a) governs or by the plaintiff in person as set forth in subsection (b). Subject to v;hat may be said in respect to argument number two belov/ I am inclined to accept "in person" to mean just that and to hold that tlie present proceedings have been properly com­menced .

- 5 -Even if the above should not be correct it would seem to me that by failing to raise this defect before now, and by filing a Statement of Defence in reply to the Claim the de­fendants have accepted the pleadings. In any event if this position was to be taken it should have been pled specifically as required by Rule 127. It now becomes necessary to consider the second argu-ment, namely that on the actual hearing before me Mr. Penner cannot be heard but rather his Company should appear by counsel. At page 251 in Volume 36, Halsbury 's Laws of England, 3rd Edition the law is expressed as: * "A company may employ an unqualified person to institute proceedings in a county court, but cannot appear except by solicitor or counsel cr other representative allowed by the court or statute." The above statement of the law appears to be based on several English decisions. These decisions remain to be examined in the light of the legislation and Rules of Court applicable here and witli the full realization that counsel are not always readily available in the Territories. The Companies Ordinance, 0. N. W. T. 1968 0-St) c. 1 is silent on the matter. So also is the Legal Profession Ordinance, R.O.N. K.T. 1956, c. 57 except that there is no prohibition un­less the person appearing purports to charge remuneration in which event it would be an offence.

I I

1 - 6- -In 1897 in Re An Arbitration between The London County » ouncil and The London Tramways Co., (1897) 13 T.L.R. 254, the Chairman of tlie London Tramways moved to set aside an award. When asked by the Court by what authority he appeared on behalf (i)f the company his reply was that the company was willing that he do so and further that he was a servant of the company. The Court refused to permit him to appear. Justice Cave remarking: "A litigant was allowed to appear in person, but a company must appear by attorney who could instruct counsel on their behalf." A similar result is found in Scriven v. Jescott (Leeds) Ltd., (1908) 53 Sol. Jo. 101 where a managing-directqr of a company was not allowed to appear, Bray, J. holding that a i company was "not in the same position as a litigant in person." In examining the language found in R.S.C., Ord. 4, r. 2,

Merton J. held that the language did "not contemplate that a company can sue in person" and "a company cannot appear in person": Frinton and Walton Urban District Council v. Walton and District Sand and Mineral Co. Ltd., 1938 1 All E.R. 649. It is to be noted that Ord. 4, r. 2 above refers to a Writ of Summons and "a plaintiff suing in person." A similar result was reached in an attempted appearance before the House of Lords: Tritonia Ltd. et al v. Equity and Law Life Assurance Society 1943 2 All E.R. 401. i In Saskatchewan it has been held that a company cannot issue a writ of summons by anyone but a solicitor: Western

- 7 ­k Producers Mutual Hail Ins. Co. v. Stewart 1928 1 V. V'.R. 320. In R. V. Cook 1932 1 D.L.R. 88 there is a discussion to be found at pages 92 to 94 wherein McGillivray, J.A. re­iterates the same principles as set forth in the cases above, although his remarks were not necessary as the decision of the court went on another ground. The above concept seems to have come indirectly, if not directly, from the ancient concept of corporations as re­flected in the rem.arks of Lord Coke found in The Case of Sutton 's Hospital, 10 Co. Rep. 23a, 77 E.R. 960 at page 973: "They (corporations) cannot commit < treason, nor be outlav/ed, nor ex-communicate, for tlie}" have no souls, I neither can they appear in person, but by attorney." Some of the more recent cases appear to lean away from

the limited concept of corporation as set forth above. Cf. R. v. Cook (supra) at page 93 and Risbey v. Revelstoke Steel Fabri­cators Ltd. et al (1^64) 47 W.W.R. 638. \\hile apparently accepting as a general proposition that a company cannot be represented in court by an officer the case of Battle v. Irish Art Promotion Centre Ltd. 1966 Irish Reports 252 refers to the possibility of an exception if there is statutory authority to the contrary. In Charles P. Kinncll & Co. V. Harding, Wace <? Co. 1918 1 K. F. 405, the Court dis­cusses a case brouglit in the County Court where a corporation may by leave of a judge be permitted to appear by some person •

other than a solititor. The remarks of Swinfcn Eady, L.J » found at page 413 of the report are not without interest:

'As from its nature a company cannot appear in person, not having as a legal entity any visible person, it must appear by counsel or solicitor, or by leave of tlie judge some other person may be allowed to appear in­stead of the company'to address the Court, which includes the examination of the witnesses and generally con­ducting the case. There is no limit or restriction imposed on the judge as to the persons whom he may allow, or as to the nature of the cases in which he may allow some other person to address him instead of counsel or solicitor for the company. It is left to his discretion, but except* under special circumstances he would doubtless only sanction some director I or officer or regular employee of the company so appearing instead of the company, and would limit his per­mission to cases which he thought could properly be disposed of before him, without the assistance of either Counsel or solicitor." Referring back to the quotation taken from Re London County Council and London Tramways (supra) and quoted earlier in this judprnent Ruttan, J. has this to say: Risbey v. Revelstoke Fabricators'^et al (1964) 47 W.W.R. 638 @ 639. " I do not conclude that "attorney" : necessarily means a member of the legal profession, but can include any properly authorized person, i.e., the president or managing director of a company who could instruct counsel to appear on be­half of the company in a court of law. It seems to me, with respect, ' that later authorities cited by i

'Mr. Miller have developed from this earlier statement and have similarly identified "attorney" with "solicitor". I am not prepared t o hold a com­pany is powerless to act except through a solicitor, There have been cases in this co urt where affidavits were accep ted, sworn by a president of a.c ompany even without formally stat ing in the affidavit his power o r authority to make such a depositio n. A certain authority to act or s peak for the company is to be impl led from the office held by a seni or official of a company. I am not prepared to hold that such an off icer, if his qualifications are un challenged, cannot enter an appea ranee." A s i d e •Prom t h e lanpuat^e found in Rule 8 8 , a b o v e , and •^ *J> 7 7 Rule 712 (1) which refers to "personal attendance of the party" in respect to business to be conducted at court offices I am unable to find anything in the Rules of Court which might help. Of some interest perhaps is the fact that "person" includes a corporation in the definitions contained in The Intex'pretation Act, R.S.A. 1970, ch. 189; Interpretation Act, R.S.C. 1970, c. 1-23; and Interpretation Ordinance, R .0 . N. 1V.T. , 1956, c. 52. In my opinion it would seem to me that most, if not all, of the mysteries which were said to have evolved around corporations in the days of Coke and Blackstone have surely evaporated by now.

- 10 -If the Rules that are applicable here are broad enough to permit the filing of pleadings by a proper officer of a corporation then surely they are broad enough to permit such a pei-son, if suitably authorized, to continue to represent the corporation throughout the proceedings. In this respect I adopt the remarks of Ruttan, J., quoted above. In the present case Mr. Penner explained how he could not obtain legal counsel in Yellowknife because all four of the law offices here in Yellowknife were already representing either the defendant or other creditors with interests adverse to him. To import counsel from Edmonton to the south would place an excessive financial burden on the litigant in the present .case, requiring the added expenditure of hotel, meals, and return air fare from Edmonton. In the result I find that Mr. Penner v/as entitled to appear in Court in this matter as attorney for the plaintiff Company. I would observe, though, that experience indicates that parties should where possible use counsel in their litigation There will be no costs to anyone under the circum-s.tances. I wish to thank counsel for the Territorial Government tor his assistance m argument.

V. G. Morrow Yellowknife, M. .V.T. 21 March, 1975.

- 11 Counsel: J. E. Richard, Esq., for Defendant W. R. Holdings

E. D. Johnson, Esq., for Government of the N. W.T.

B. Penner, Esq., in person

tl

I

I

NO. IN THE SUPREME COURT OF THE NORTllWliST TERRITORIES

BETWEEN: NORTHERN HOMES LIMITED, Plaintiff ' - and -STEEL-SPACE INDUSTRIES LIMITED^ and W. R. HOLDINGS (N.W.T.) j LIMITED, ' Defendants

REASONS FOR JUDGMENT OF THE IiONOUR.VBL MR. JUSTICE W. G. MORROW

> > *• »• 1 ., »^-:£^^