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The Advisory: Volume 9, Issue 3, December 2011


Click here to view the PDF version of The Advisory

Law Society of Alberta Intervenes in Beaver Lake Cree Nation Case

The Law Society of Alberta recently intervened in the Beaver Lake Cree Nation action and application to uphold the Legal Profession Act which ensures that lawyers practising in Alberta be competent and proficient.

Beaver Lake Cree Nation applied for a right of audience for six British barristers. The Law Society of Alberta intervened in this application to ask the Court to uphold the Legal Profession Act which permits only active members of the Society to act as barristers in Alberta courts.

Background

The Beaver Lake Cree Nation and others have sued the Province of Alberta and the Attorney General of Canada to enforce their treaty rights to hunt, trap and fish. The Nation is represented by Woodward and Company, a British Columbia law firm, some of whose lawyers are called in Alberta and others of whom appear in Alberta under the Mobility Agreement. The plaintiffs sought to accept an offer by six British barristers to represent them pro bono in this action.

The barristers are not members of the Law Society or any reciprocating law society (i.e. any Law Society who is part of Mobility Agreements in Canada). Initially, the Nation sought research and writing assistance from the barristers but subsequently asked Justice Yamauchi, the case management judge, to allow the barristers to appear as advocates, examine witnesses and make submissions on the law and facts.

Intervention

The Law Society intervened in the Nation’s application by consent of all parties. The Law Society took no issue with the barristers’ ability to provide research and wiring assistance to Woodward and Company as outlined in Chapter 2, Rule 4 of the Code of Conduct.

However, the Law Society pointed out that Sections 102 and 106 of the Legal Profession Act prevent the barristers from appearing as advocates, examining witnesses and making submissions on the law and facts. These two sections of the Act prohibit the proposed participation of the barristers beyond the supporting role agreed upon by the Law Society and the defendants.

Justice Yamauchi heard the Nation’s application on May 27, 2011, in chambers in Edmonton. Many Nations members were in court to witness the application. The Law Society observed that Justice Yamauchi was mindful of their presence and sought diligently to find a way to grant the Nation’s application.

Justice Yamauchi’s Decision

Sections 102 and 106 of the Legal Profession Act prohibit the proposed participation of the barristers beyond the supporting role conceded by the Law Society and the defendants. Justice Yamauchi found Rule 2.23 of the Alberta Rules of Court does not permit this participation. He declined to rule whether this new rule is available only to self-represented litigants. Finally, Justice Yamauchi declined to exercise the court’s inherent jurisdiction and therefore dismissed the Nation’s application.

Justice Yamauchi concluded the Alberta Legislature enacted Section 106 of the Legal Profession Act to ensure lawyers practising in Alberta are competent, proficient, adequately insured and bound by the Code of Professional Conduct. As there was no evidence before him that the British barristers were insured or bound by the Alberta Code, the public would not be protected by granting them a right of audience.

The Nation’s appeal of Justice Yamauchi’s decision will be heard by the Court of Appeal on January 9, 2011 in Edmonton.

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