Category: Rule of Law

The PEI Court of Appeal answered the question about whether can family represent you in court in Ayangma v. Charlottetown (City) et al., 2017 PECA 15. In considering whether a father could represent his son in court, the court of appeal said yes after reviewing the following criteria:

1. The extent of the representation requested;
2. Whether the agent has a family relationship with the litigant (Pacer Enterprises Ltd. v. Cummings, 2004 ABCA 28 (CanLII), at para.13; Steele v. Rendell, supra);
3. The complexity of the case (Ofume, supra);
4. Vulnerability and potential harm to the lay litigant (Ofume, supra);
5. Competence.  A judge should not embark on a competence inquiry as that would raise insurmountable difficulties (R. v. Romanowicz, supra,  at paras.45-50), but that does not mean that competence is not a relevant consideration.  InOfume the court found “capability” of the agent to be a factor.  I will give two examples when competence would be a relevant factor.  The first is where a family litigant brings to court his/her family member/friend who is an accountant to assist in the examination or cross-examination of a witness on the issue of the income of a self-employed person.  All else being equal, the court may find that the agent’s particular competence would be helpful to both the litigant and the court.  The second is where the competence of the agent is so overwhelmed by the complexity of the trial, or the agent is so obviously incompetent that it would impugn the integrity of the process (Romanowicz, supra, para.83).  Mere unease about the agent’s competence will not suffice.
6.       Whether the agent’s appearance would undermine the integrity of the proceedings. Romanowicz, supra, at paras 56 and 74, and R. v. Gouchie, 2006 NSCA 109 (CanLII), both provide a number of examples where the agent’s appearance could undermine the integrity of the proceedings.  For example, agents who are facing criminal charges involving interference with the administration of justice; or whose background demonstrates pervasive dishonesty or blatant disrespect for the law; or who have convictions for crimes of dishonesty or whose criminal record reveals offences or other discredible acts which permit the conclusion that they could not be relied upon to conduct a trial ethically; or agents who have a conflict of interest with the litigant; or who have demonstrated an intention not to be bound by the rules of procedure.  In any of these cases the motions judge might exercise his or her discretion to prohibit the agent from appearing.
7.       Conditions.  In a proper case a judge might exercise the court’s inherent discretion to allow the agent to appear subject to conditions (Ofume).  For example, the respondent City states that one of the issues in this case will involve protection of an informant’s identity.  This invokes the issue of informer privilege which is a rule of fundamental importance to the workings of the criminal justice system.  As Bastarache J. stated inNamed Person v. Vancouver Sun, 2007 SCC 43 (CanLII), [2007] 3 S.C.R. 253, at para.30:… No case‑by‑case weighing of the justification for the privilege is permitted. All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court has any discretion to disclose this information in any proceeding, at any time.
8. Should a judge exercise the court’s inherent discretion to allow the father to appear in this case, the judge might consider a condition that the father not be permitted to ask any questions which might tend to reveal the identity of any police informant.  The informer privilege rule applies in civil cases as well as criminal cases.

[72]           I would allow the appeal and remit this matter back to the Supreme Court of Prince Edward Island for a determination of whether or not the court should exercise its inherent jurisdiction to allow the father to represent his son considering all the relevant factors.

Justice John K. Mitchell

I AGREE:      Chief Justice David H. Jenkins

I AGREE:     Justice Michele M. Murphy

https://www.canlii.org/en/pe/pescad/doc/2017/2017peca15/2017peca15.html

The decision shocked some lawyers because

The Supreme Court of Canada ruled that the Federal Court does not have inherent jurisdiction:

To decide whether the Federal Court has jurisdiction over a claim, it is necessary to determine the essential nature or character of that claim. Determining the claim’s essential nature allows the court to assess whether it falls within the scope of s. 23 (c) of the Federal Courts Act , which grants jurisdiction to the Federal Court only when a claim for relief has been made, or a remedy has been sought, “under an Act of Parliament or otherwise”. ….

The Federal Court has only the jurisdiction it has been conferred by statute: it is a statutory court, without inherent jurisdiction. Accordingly, the language of the Federal Courts Act  is completely determinative of the scope of the Court’s jurisdiction. Parliament established the Federal Court pursuant to its competence, under s. 101  of the Constitution Act, 1867 , to establish “additional Courts for the better Administration of the Laws of Canada”.

Windsor (City) v. Canadian Transit Co., 2016 SCC 54