Rule 15.01(2) of the Rules of Civil Procedure states:
A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the Court.
This means that for a company to to be represented by an owner, director or officer in Superior Court (claims over $35,000 as of January 1, 2020), the company needs to bring a motion and get a Court order. The words “leave of the Court” mean the permission of the Court.
This rule does not apply to Small Claims Court (claims up to $35,000), for in Small Claims Court a company does not need a lawyer to represent it.
The policy rationale is to ensure the person who represents a company will act in the best interests of the company and to avoid having a rogue shareholder represent a company and do what’s best for a single shareholder (or some shareholders) without considering all the other shareholders.
The Rules of Civil Procedure are not set up well to deal with rule 15, because it is often necessary for small corporations to issue a statement of claim or serve and file a statement of defence with a non-lawyer representative in a hurry due to a limitation period or Court deadline, thereby breaching rule 15.01 (2) and after doing so bring a motion for a Court order.
The historic test on whether to give a corporation permission to self represent is outlined in the Astrochrome Crankshaft case where the Court looked at the seniority of the proposed representative, the nature of the action and the ability of the proposed representative.
Any company seeking approval to self-represent will want to review the case of Lamond and Smith, which shoots down a number of historical reasons why corporations cannot be self-represented and grants small business owner Mr. Smith the right to represent his small company.
Some considerations for such motions are outlined in the case of Extend-A-Call at paragraph 19. A moving party may want to consider these considerations and address them in the affidavit evidence on the motion.
The steps in bringing a motion for leave to have a company be self-represented are as follows:
- Draft the Court order.
- Seek the consent of all other parties or ask if they will be unopposed (do not care one way or another). Other parties may want to review the motion record before taking a position on the motion, which positions can be 1 of the following 3: consent, unopposed or opposed.
- Schedule the motion on notice to all other parties (who may or may not attend depending on whether they consent or are unopposed or are opposed).
- Draft the motion record, which should have an affidavit that explains who the shareholders, directors and officers are and provides details about the proposed corporate representative and their education, work history and role at the corporation.
- Serve and file the motion record. Review any responding evidence. Consider a reply affidavit.
- Potential cross-examinations on affidavits.
- Consider serving and filling a factum and brief of authorities.
- Confirm the motion.
- Attend the hearing and keep in mind that even if the other parties are unopposed, the Judge still has a gatekeeping function and must make sure the proposed representative is acceptable.
- If an order is obtained, have it issued and entered and then serve it on all parties.
Hassell Trial Counsel has developed a set of user-friendly precedent motion materials for motions to represent a company. We also offer limited scope legal advice to corporations that are self-represented or in the process of becoming self-represented.
Please click here to purchase motion materials for permission to represent your company.
For most companies, plan A is to hire a lawyer with experience before the Courts. But that may not be financially practical and plan B may be to have an owner, director or officer represent the company, with the assistance of trial resources and consulting.
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