On July 26, 2010, Québec's Commission d'accès à l'information (the Commission) rendered its decision on the requirement for legal persons to be represented by advocate in The Canadian Association for Self Defence Inc. v. Québec (Ministère de la Sécurité publique), 2010 QCCAI 209.
This latest decision follows Hydro-Québec v. W.L., 2009 QCCAI 287, which established that a legal person is required to be represented by advocate when a plaintiff acts in its name, not only at the hearing, but also in the initial stages of an application to review a public body's decision on an access to information request.
On January 16, 2009, the president of the Canadian Association for Self Defence Inc. (CASD) asked the Ministère de la Sécurité publique, Québec's public security department, (a public body) how many permits to bear firearms for the protection of life were in effect in Québec. The president merely wanted to know how many permits had been issued and did not request any identifying information on the holders of these permits.
On February 2, 2009, the person in charge of access to documents for the public body turned down the application on the grounds that "disclosure of the requested information would impair the efficiency of a program, plan of action or security system designed for the protection of persons or property." In his capacity as CASD president, the applicant therefore applied to the Commission for review of this decision.
The public body, represented by the Attorney General of Québec, raised a preliminary argument before the Commission, claiming that the application was inadmissible because it was filed in the name of a legal person by an individual, i.e. the CASD president, who was not an advocate or solicitor.
The CASD is a legal person registered in the Québec Enterprise Register. As such, it is normally required to be represented by advocate for the following acts:
to prepare and draw up a notice, motion, proceeding or other similar document intended for use in a case before the courts; (section 128(1)b) of the Act Respecting the Barreau du Québec)
In light of this, the CASD president offered to reapply for access to the information with the public body in his own name, in order to avoid this requirement to be represented by advocate.
The Commission replied that, under article 312 of the Civil Code of Québec, a legal person is represented by its senior officers, unless there are statutory limitations on this power of representation. One of these limitations is set out in Article 128 of the Act Respecting the Barreau du Québec: when the legal person is required to appear in judicial proceedings before a court of justice, the power to represent is the exclusive prerogative of the advocate or solicitor. However, section 129(c) of the same Act provides an exception regarding the power to represent before quasi-judicial organizations such as the Commission, stating that this power can also be exercised by the officers of a public or private body, except for the purposes of pleading, which remains at all times the exclusive prerogative of the advocate:
129. None of the provisions of section 128 shall limit or restrict:
(c) the right of public or private bodies to be represented by their officers, except for the purpose of pleading, before any organization having a quasi-judicial function;
The Commission found that the review application met the conditions of section 129(c) of the Act Respecting the Barreau du Québec, and was therefore exempt from the obligation for a legal person to be represented by advocate for applications filed before a quasi-judicial court. The Ministère de la Sécurité publique's motion for inadmissibility was thus dismissed.
The Commission distinguished this case from two other decisions handed down in the past year, for the reason that, in this case, the person requesting access was not the officer of the legal person it wanted to represent:
(a) the aforementioned case, Hydro-Québec v. W.L.;
(b) a January 22, 2010 decision in Laforest Nova Aqua inc. v. Québec (Ministère du Développement Durable, de l'Environnement et des Parcs), 2010 QCCAI 22.
We would like to add that the Commission could have also referred, for the same reasons, to its February 20, 2009 decision, M…K… v. Ministère de l'Agriculture, des Pêcheries et de l'Alimentation, 2009 QCCAI 39.
This latest decision is therefore a case that applies paragraph 129(c) of the Act Respecting the Barreau du Québec, which stipulates that officers have a legal right to act in the name of a legal person, to represent it and to file proceedings before a quasi-judicial court. This right is limited in that it does not, however, allow for pleading, which remains the exclusive prerogative of the profession of advocate.