1998114
Docket: T-1969-97
Between:
KOBETEK SYSTEMS LIMITED,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Muldoon, J.
This application arises in the context of an action in which the applicant is plaintiff, and the sovereign is defendant. It is a tax case under the Excise Tax Act, R.S.C. 1985, Chap. E-15.
The plaintiff, as applicant, moves for leave to be represented in this action by an officer of the corporation, Mr. Sieg Deleu. The defendant, here the respondent, takes no position on the matter in issue. The hearing took place in Halifax on January 13, 1998.
This being a matter of public law - the operation of this Court's rules made pursuant to sec. 46 of the Federal Court Act, R.S.C. 1985, Chap F-7 - the respondent's neutrality is of little concern. The pertinent current rule is 300(2), thus:
| 300(2) A corporation shall be represented by a solicitor in all proceedings in the Court, unless the Court, in special circumstances, grants leave to the corporation to be represented by an officer of the corporation. |
So, the applicant must demonstrate special circumstances.
The jurisprudence helps to define such special circumstances. Under the previous, more inflexible rule 300(2) Mr. Justice Teitelbaum declined to grant leave in I * AM - Institute of Applied Methodology v. M.N.R. (1991) 44 F.T.R. 8. This case was cited by Mr. Justice Richard in The Bankrupt, NcS Diesel Power Incorporated et al. v. Superintendent of Bankruptcy T-724-95 (May 24, 1995). Although Richard, J. acknowledged the correct rule, he relied on the decision of Teitelbaum, J. who was construing the previous rule.
The most recent case on rule 300(2) is Sharpe's Tropical Shell Co. v. The Queen (1996) 100 F.T.R. 59, in which Prothonotary Hargrave granted leave for the corporation to be represented by a director in lieu of a solicitor. In that case, the plaintiff was a family corporation which was unable to pay for legal representation. Denying the motion would have resulted in the corporation's inability to proceed with the action. At page 61, Prothonotary Hargrave stated:
| Where there is a director who seems reasonably capable of representing a company, an impecunious company ought not to be denied its day in court. |
On the issue of a non-lawyer representing the company in an expeditious manner he added at page 61:
| There is, however, the issue of whether the action, being conducted by a lay person, will proceed in an expeditious and manageable fashion. While the material filed so far by the plaintiffs may be a little wordy, it is coherent and, on its face, presents a claim which appears reasonable. I see no reason why Richard Sharpe, by applying himself to the Rules and seeking procedural assistance from the registry staff, ought not to be able to conduct the action in a businesslike manner, having due regard to moving the action to a conclusion within a reasonable time. |
From these cases the following factors appear to be relevant to the determination of whether special circumstances exist: whether the corporation can pay for a lawyer; whether the proposed representative will be required to appear as advocate and as witness; the complexity of the legal issues to be determined (and therefore whether it appears that the representative will be able to handle the legal issues) and whether the action can proceed in an expeditious manner.
In the present case Mr. Deleu appeared and stated "I should be able to do it", in essence what he stated in his affidavit herein, sworn November 7, 1997. Already the roles of witness and advocate have become difficult to distinguish! However, this is the sole ground advanced.
That Mr. Deleu considers himself capable of representing the plaintiff corporation, is not one of the "special circumstances" contemplated by rule 300(2).
The motion is dismissed without costs. The action is stayed until March 13, 1998, by which date it shall be dismissed with costs, if no plaintiff's solicitor come forward on the record. Time for the filing of a statement of defence shall run only form the date of the plaintiff's solicitor notifying the defendant's solicitor of the plaintiff's solicitor's entry onto the record herein
"F.C. Muldoon" Judge
Halifax, Nova Scotia
January 14, 1997.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1969-97
STYLE OF CAUSE: Kobetek Systems Ltd. v. Her Majesty the Queen
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: January 13, 1997
REASONS FOR ORDER BY: Muldoon, J.
DATED: January 14, 1998
APPEARANCES:
Sieg Deleu for the Applicant
Kathleen McManus for the Respondent
SOLICITORS OF RECORD:
Sieg Deleu
Atlantis Kobetek Inc.
1496 Lower Water Street
Halifax, NS B3J 1R9 for the Applicant
Mr. George Thomson, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent