The Ontario Court of Appeal’s January 27, 2014 decision in Heydary Hamilton PC v. Muhammad, 2014 ONCA 84, considered the narrow but important issue of when a Court should dismiss an appeal due to a corporation’s failure to retain counsel. The decision gives rare appellate consideration to Rule 15.07(b) of the Rules of Civil Procedure, while also re-iterating the more general powers of courts to control their own procedures.

In Ontario, corporations require a lawyer’s representation unless they obtain an order permitting otherwise. Normally, after a lawyer is removed as counsel of record, they are given 30 days to appoint a new lawyer. Rule 15.04 of the Rules of Civil Procedure reads in pertinent part:

(6) A client that is a corporation shall, within 30 days after being served with the order removing the lawyer from the record,

(a) appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or

(b) obtain and serve an order under subrule 15.01 (2) granting it leave to be represented by a person other than a lawyer. …

(7) If the corporation fails to comply with subrule (6),

(a) the court may dismiss its proceeding or strike out its defence; and

(b) in an appeal,

(i) a judge of the appellate court may, on motion, dismiss the corporation’s appeal, or

(ii) the court hearing the appeal may deny it the right to be heard. …

[Emphasis added]

In Heydary Hamilton, counsel was removed from the record just three days before an appeal was to be heard. Strictly speaking, therefore, it would not appear to have violated Rule 15.04(6). Nonetheless, the Court dismissed its appeal as abandoned. The decision read in full:

[1]          No one appeared for the appellant. Counsel for the appellant was removed from the record on January 24, 2014, as he was unable to get instructions.

[2]          In our view Rule 15.04 does not remove any jurisdiction this court has under the Courts of Justice Act on a properly scheduled appeal before it. Rule 15.04 gives the court additional jurisdiction to dismiss an appeal before the hearing date for procedural failure when a party delays the processing of an appeal by not retaining new counsel.

[3]          The appellant has known the appeal would come on for hearing today since November 22, 2013, when the appeal was scheduled. The appellant had notice of its counsel’s intention to be removed from the record. If the appellant wished to proceed with this appeal, it could have attended today to request an adjournment. It did not.

[4]          In the exceptional circumstances of this case, we dismiss the appeal as abandoned. Costs will be fixed on a partial indemnity basis in the amount of $8,000 all inclusive.

The decision may have been influenced by the fact that the lead partner in the appellant law firm (actually a professional corporation) has infamously disappeared. Nonetheless, it is evidence that courts can and will use their power to dismiss an appeal when a party that requires counsel fails to obtain and instruct counsel.