Membership in Quebec bar not a prerequisite for preparing proceedings in social welfare cases: SCC

The Supreme Court of Canada has ruled that Quebec’s Minister of Employment and Social Solidarity had the right to employ a non-lawyer to prepare and sign written proceedings in social aid cases before a tribunal.

In Barreau du Québec v. Quebec (Attorney General), the majority of the Supreme Court dismissed the appeal of the Barreau du Québec against the Attorney General of Quebec. The appeal concerned two social welfare cases for which the Minister of Employment and Social Solidarity had applied for a review of decisions rendered by the Administrative Tribunal of Québec, and presented motions for review that had been prepared, drawn up, signed and filed by someone who was not a member of the bar.

In both cases, the individuals in question brought a motion to dismiss on the ground that the minister’s written proceedings had not been prepared and drawn up by a member of the Quebec bar, pursuant to an Act respecting the Barreau du Québec. Section 128 of the act provides that certain activities, including preparing and drawing up motions and other written proceedings, are the “exclusive prerogative” of advocates and solicitors, notably “plead[ing] or act[ing]” before courts or tribunals.

Quebec’s Court of Appeal upheld the ATQ’s decision. The minister was represented by the Attorney General of Quebec in the Supreme Court and the courts below.

In an 8-1 decision, the high court found that “the Act respecting the Barreau du Québec establishes certain exceptions to the monopoly on practice of advocates and gives the Minister the right ‘to be represented to plead or act in his . . . name’,” Justice Russell Brown wrote for the majority.

“The issue to be resolved in this case is not a question that is of central importance to the legal system as a whole and lies outside the ATQ’s specialized area of expertise,” Brown wrote. “[I]f it were, that would rebut the presumption in favour of the reasonableness standard. The Barreau’s role in regulating the representation of others before a court or tribunal is of obvious importance, but this does not mean that every question touching on this subject is automatically one of central importance to the legal system as a whole.

 “The right to represent others before a court or tribunal is generally reserved to lawyers,“ Brown wrote. However, he added, “Section 102 of the Act respecting administrative justice grants the Minister the right to ‘be represented by the person of his . . . choice before the social affairs division’ of the ATQ.”

The ATQ dismissed the individual litigants’ motions to dismiss, Justice Brown noted, “concluding that under s. 102 of the Act respecting administrative justice, a person who is not an advocate may do everything that is needed for the representation of the Minister, both oral and written, before that tribunal’s social affairs division and that this power is not in conflict with the Act respecting the Barreau du Québec.”

In dissenting, Justice Suzanne Côté wrote that “[B]ecause the question before the ATQ necessarily involved the interpretation of the Act respecting the Barreau du Québec, the presumption in favour of the reasonableness standard does not apply.”

Rather, she wrote, “It is the correctness standard that must be applied.” Regarding the scope of the minister’s right to be represented before the ATQ by a person of their choice (and not necessarily a member of the bar), Côté concluded that “only an advocate or a solicitor may prepare and draw up a notice, motion, proceeding or other similar document intended for use in a case before the ATQ’s social affairs division. In my opinion, s. 102 of the Act respecting administrative justice does not grant the Minister the right to have recourse for that purpose to the services of a person who is neither an advocate nor a solicitor.”

Michel Paradis of JoliCoeur Lacasse Avocats in Quebec was lead counsel for the Barreau du Québec before the Supreme Court. In an emailed statement, his firm said that the “Barreau du Québec acknowledges the judgment of the Supreme Court of Canada and respects its purpose.”

Alexandre Ouellet of Lavoie Rousseau in Quebec acted for Justice-Québec and was not available for comment at press time.

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