Last updated August 2024 

Rules 5.1-2A and 2B were added to the Code of Conduct in 2023 to address the issue of lawyers communicating with courts and tribunals in the opposing party’s absence and without their knowledge.   

Rule 5.1-2A, relating to ex parte proceedings, states 

In an ex parte proceeding, a lawyer must act with utmost good faith and inform the tribunal of all material facts, including adverse facts, known to the lawyer that will enable the tribunal to make an informed decision. 

Such proceedings are exceptional but may be necessary to protect a client’s rights. Examples include Mareva Injunctions and Anton Piller orders, where there is a sense of urgency and providing notice to the other party would prejudice the client’s ability to obtain a remedy. However, ex parte applications are not without obligations. Under all circumstances, a lawyer must first decide if an ex parte application is necessary, permitted by law, and justified in the circumstances. If so, where no prejudice would occur, the lawyer must still consider giving notice to the opposing party or lawyer. If a lawyer proceeds on an ex parte basis, they must provide full, fair and candid disclosure to the tribunal. 

Rule 5.1-2B, relating to single-party communications with a tribunal, states: 

Except where authorized by law, and subject to rule 5.1-2A, a lawyer must not communicate with a tribunal in the absence of the opposing party or their lawyer (when they are represented) concerning any matter of substance, unless the opposing party or their lawyer has been made aware of the content of the communication or has appropriate notice of the communication. 

Applications to the court are not the only means of communicating with Justices, and lawyers often send correspondence to the courts for a variety of reasons. Under Rule 5.1-2B, it is considered improper for lawyers to attempt to influence, discuss a matter with, or make submissions to a tribunal without the knowledge of the other party or the lawyer for the other party. If a tribunal invites communication from a lawyer, the proper practice is to inform the other party or their lawyer. In Shehu v. Iqbal, 2017 ABCA 438, the Court commented that “… opposing counsel must be copied with all correspondence with the court.” (para 7) 

It should be noted that Rule 5.1-2B does not prohibit a lawyer from communicating with a court on routine administrative or procedural matters. At the same time, lawyers must refrain from including any submissions dealing with the substance of the matter or its merits in such communications with the court.  In Faizel v. Singer (Wilson Laycraft), 2023 ABCA 213, ex parte communication between the respondent and a tribunal was permitted because the content of the communication was regarding routine administrative matters. Though the Court did comment that ideally the other party should have been informed from the outset.  

The Court of King’s Bench of Alberta considers communications that “are not on notice, or copied, to Counsel for/or the party/parties opposite” as inappropriate and reserves the right to not respond to such communication. If opposing counsel has contacted the court without notifying you first, you may alert the court but do not address the substance of the issue. Instead, seek an opportunity for both parties to appear before the Justice to make submissions.  

Exceptional circumstances can arise, and lawyers often fail to see the pitfalls of sending a letter or submission to a Justice or court staff. Consider the following best practices: 

• When the court has invited the parties to send a letter: assume the opposing party needs to be included. Limit the response to the issues identified by the court. Do not stray into matters of substance or seek an order that was not contemplated. 

• When written submissions are requested by the court: determine whether submissions should be exchanged with the opposing party before sending them to the court. It may be sufficient to forward your submissions to the court if the opposing party has a chance to respond. 

• Routine administrative matters: it may be necessary to set or confirm hearing dates, or to seek a correction to an order. When contacting the court, do not discuss matters of substance, the conduct of the opposing party or the merits of the case. Always provide a copy of your communication to the opposing party. 

• When the communication is authorized or permitted by law: even if procedural rules appear to allow a lawyer to take a step without notice, consider giving notice. For example, the Rules of Court appear to permit a lawyer to apply for case management and merely serve notice on the opposing parties. It is a best practice for the lawyers to reach agreement in advance or ensure there is an opportunity for other parties to communicate their positions. 

It may be challenging to follow these recommendations when dealing with self-represented parties, especially when they are not aware of procedural rules or practices. For example, a self-represented party may not be prepared to consent to the contents of a letter you wish to send to a Justice or may be unaware that it is inappropriate to write directly to a Justice without notice to you. If you communicate with the court, you should advise the Justice if the opposing self-represented party has been copied with the correspondence, but has not seen it in advance, and whether the self-represented party is expected to respond. If you are encountering difficulties, you may wish to seek court direction to manage communications with the Justice.