In Alberta, individuals, sole proprietors and partnerships may self-represent in any level of court. However, corporations’ ability to self-represent in the Court of King’s Bench was limited.

Until March 2020, Rule 2.23 of the Alberta Rules of Court stated:

2.23(1) The Court may permit a person to assist a party before the Court in any manner and on any terms and conditions the Court considers appropriate.

(2) Without limiting subrule (1), assistance may take the form of

(a) quiet suggestions,
(b) note-taking,
(c) support, or
(d) addressing the particular needs of a party.

(3) Despite subrule (1), no assistance may be permitted

(a) that would contravene section 106(1) of the Legal Profession Act,
(b) if the assistance would or might be disruptive, or
(c) if the assistance would not meet the purpose and intention of these rules.

Rule 2.23 allows a party to receive assistance in court from a person who is not a lawyer. The rule was interpreted to permit only limited support for a litigant and not the right of an audience. This assistance may take the form of quiet suggestions, note-taking or other support. The support person may be known as a “McKenzie Friend”, referring to the case McKenzie v McKenzie, [1970] 3 All ER 1034, CA. McKenzie Friends are typically close friends and family members of the party, but could also include others.

Rule 2.23 did not provide the court with discretion to allow non-lawyer agents an audience to speak on behalf of, or represent, an individual or corporation in proceedings. Alberta case law also required that corporations retain lawyers to represent them in litigation matters in the Court of King’s Bench (for example, see 908077 Alberta Ltd. (Escape & Relax) v 1313608 Alberta Ltd., 2015 ABCA 117 and Beacon Hill Service (2000) Limited v Esso Petroleum Canada, 2012 ABCA 269). The court’s discretion under the old Rules of Court to hear submissions from non-lawyers was extinguished when the above wording came into effect in 2010.

In some cases, the resulting change was perceived as a hardship, particularly for small family businesses that had formed closely-held corporations. Unlike partnerships and sole proprietors, these corporations had to hire a lawyer to appear before the court, simply because they had decided to incorporate.

On March 17, 2020, Rule 2.23 of the Alberta Rules of Court was amended to add subrule (4):

(4) This rule does not affect the discretion of the Court, subject to any limits imposed under the Legal Profession Act, to grant a right of audience to any agent, other than a lawyer, to speak on behalf of an individual or corporation.”

Subrule (4) restores the court’s historical discretion to allow non-lawyer agents to speak in court on behalf of individual parties and corporations. It permits increased access to justice for closely held corporations, and enables a director or officer to speak in court on a corporation’s behalf.

Limitations

Despite the addition of subrule (4), corporations must still be represented by a lawyer in any action before the court. The ability to speak in court does not permit a non-lawyer agent to draft and file pleadings, represent the corporation at questioning, or to take other steps that may be characterized as legal work. Also, no assistance to an individual or corporation will be permitted if it is disruptive, fails to meet the purpose of the Alberta Rules of Court, or contravenes the provisions of the Legal Profession Act.

Under section 106(1) of the Legal Profession Act, non-lawyers continue to be prohibited from acting as a barrister or solicitor in court and from commencing, carrying on or defending any action on behalf of another person, including a closely-held corporation. This provision protects the public from receiving incompetent assistance from unqualified, uninsured and unregulated individuals.

In some cases, non-lawyer agents may be permitted to appear for parties in civil matters before the Provincial Court, or in certain summary offence matters. Discussions about the source of that authority are beyond the scope of this article, and parties are encouraged to review the relevant legislation to clarify the non-lawyers’ authority to appear in any court on a particular matter.

The amendments to the Alberta Rules of Court may be found in Order in Council 078/2020. For ease of reference, you may find the Order in Council here.

Lawyers with any questions about the amendment to Rule 2.23 or the application of section 106 of the Legal Profession Act are encouraged to contact the Practice Advisors.