Bibaud v. Québec (Régie de l’assurance maladie), [2004] 2 S.C.R. 3, 2004 SCC 35

Mireille Boisvert Appellant

v.

Régie de l’assurance maladie du Québec and

Société de l’assurance automobile du Québec Respondents

and

Eva Petras Amicus curiae

and

Attorney General of Quebec and Barreau du Québec Interveners

Indexed as: Bibaud v. Québec (Régie de l’assurance maladie)

Neutral citation: 2004 SCC 35.

File No.: 29544.

2004: March 17; 2004: June 10.

Present: Iacobucci, Major, Binnie, Arbour, LeBel, Deschamps and Fish JJ.

on appeal from the court of appeal for quebec

Civil procedure — Participation of third parties in action — Voluntary intervention — Scope of requirement of representation by advocate — Request by wife for leave pursuant to art. 208 C.C.P. to aid, assist and represent — Whether art. 208 C.C.P. allows wife to act as attorney for her husband — Code of Civil Procedure, R.S.Q., c. C-25, arts. 61, 62, 208 — Act respecting the Barreau du Québec, R.S.Q., c. B-1, s. 128.

The appellant wished to intervene, pursuant to art. 208 C.C.P., to aid, assist and represent her husband in an action for damages brought by him against the respondents, on the ground that he was incapable of representing himself because of his physical and mental state. She insisted that the purpose of her intervention was not to assert an interest of her own, separate from that of her husband, but to act on his behalf as an advocate would do. The Superior Court dismissed the application to intervene on the ground that, according to art. 62 C.C.P. and s. 128 of the Act respecting the Barreau du Québec, only advocates can plead for another person in the courts. The Court of Appeal denied leave to appeal from that decision.

Held: The appeal should be dismissed.

The legislative framework of the right to act for and represent another in the Quebec courts is set out in the Code of Civil Procedure and in the Act respecting the Barreau du Québec, the provisions of which complement each other. The Quebec legislature has made a legislative choice that, on the one hand, recognizes a physical person's right to represent himself or herself (art. 61 C.C.P.), but, on the other, obliges him or her to use the services of an advocate in acting for another (art. 62 C.C.P. and s. 128 of the Act respecting the Barreau du Québec). Representation by spouses, relatives, in-laws or friends is only allowed in cases falling within the jurisdiction of the small claims division of the Court of Québec (art. 959 C.C.P.). Although art. 208 C.C.P. allows a third party who has a personal interest or whose presence is necessary to “authorize, assist or represent a party who is incapable” to intervene at any time before judgment, this intervention procedure does not alter the rules otherwise applicable to the right to represent another person. Representatives of other persons must themselves be represented in the courts, for acts covered by the monopoly granted to the legal profession, by members of the Barreau in good standing.

In this case, the appellant gave as her sole purpose in intervening the representation of her husband’s interests, through confirmation of her right to plead for him. This application does not correspond to the intervention situations provided for in the Code of Civil Procedure. It is incompatible not only with the legislation governing the exercise of the profession of lawyer and representation in the civil courts of Quebec, but also with protective supervision for incapable persons in Quebec civil law.

Cases Cited

Referred to: Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743, 2001 SCC 51; Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45; Société canadienne d’indemnisation pour les assurances de personnes v. Services de santé du Québec, 1993 3599 (QC CA), [1993] R.D.J. 394; Boucher v. Pelletier, 1984 2836 (QC CA), [1984] R.D.J. 214; G.T.V. Limousine Inc. v. Service de Limousine Murray Hill Ltée, 1988 682 (QC CA), [1988] R.J.Q. 1615.

Statutes and Regulations Cited

Act respecting the Barreau du Québec, R.S.Q., c. B-1 [am. 2001, c. 26], s. 128.

Civil Code of Québec, S.Q. 1991, c. 64, arts. 153 to 297, 2166 to 2174.

Code of Civil Procedure, R.S.Q., c. C-25, arts. 61, 62, 208, 209, 394.1, 959.

Authors Cited

Deleury, Édith, et Dominique Goubau. Le droit des personnes physiques, 3^e éd. Cowansville, Qué.: Yvon Blais, 2002.

Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 1, 4^e éd. Cowansville, Qué.: Yvon Blais, 2003.

Taschereau, Georges. “Matières non contentieuses”, dans Denis Ferland et Benoît Emery, dir., Précis de procédure civile du Québec, vol. 2, 4^e éd. Cowansville, Qué.: Yvon Blais, 2003, 737.

APPEAL from a judgment of the Quebec Court of Appeal dismissing the appellant’s motion for leave to appeal from the Superior Court’s judgment of October 28, 2002 that dismissed her declaration of voluntary intervention. Appeal dismissed.

Mireille Boisvert, on her own behalf.

Denis Semco, for the respondent Régie de l’assurance maladie du Québec.

Jean Renaud, for the respondent Société de l’assurance automobile du Québec.

Eva Petras and Marie-Hélène Dubé, for the amicus curiae.

Jean-Yves Bernard, for the intervener the Attorney General of Quebec.

Louis Masson, Nathalie Vaillant and Annie Chapados, for the intervener Barreau du Québec.

English version of the judgment of the Court delivered by

LeBel J. —

I. Introduction

[1] This appeal raises a problem with respect to the scope of the requirement of representation by an advocate under the Quebec Code of Civil Procedure, R.S.Q., c. C‑25, and the Act respecting the Barreau du Québec, R.S.Q., c. B‑1. The appellant, Ms. Mireille Boisvert, contends that she may intervene to represent her husband, Michel Bibaud, in an action for damages brought by him against the respondents, the Régie de l’assurance maladie du Québec (the “Régie”) and the Société de l’assurance automobile du Québec (the “Société”). The Quebec Superior Court was of the view that her application to intervene should be dismissed. A judge of the Quebec Court of Appeal refused leave to appeal from that decision. Although one must give the appellant credit for the devotion and perseverance with which she has tried to handle her husband’s case, the legislation governing the exercise of the profession of lawyer and representation in the civil courts of Quebec does not allow her to act as attorney for her spouse and her appeal must be dismissed.

II. Origin and Legal Background of Case

[2] The record in this Court contains only limited information about the nature of the dispute between Mr. Bibaud and the respondents and the circumstances leading to the filing of the action for damages, which is still pending in the Superior Court. As I understand it, Mr. Bibaud is not satisfied with the decisions made on his applications to the Société for indemnification, and he considers that they caused him injury, for which he is seeking compensation. After the action was served, the respondents filed motions raising various exceptions to dismiss the action on which the trial court has not yet ruled, in view of the debate that arose regarding the applicant’s representation by his wife.

[3] Mr. Bibaud had filed this action himself, without the aid of a lawyer, as he is allowed to do by art. 61 C.C.P. He could not obtain legal aid. His financial situation did not allow him to hire a lawyer. In any case, he did not want to do so because of a very bad experience with a member of the Bar whose services he had retained in an earlier case.

[4] After the action was filed, the appellant filed a declaration of voluntary intervention pursuant to art. 208 C.C.P. In that pleading, Ms. Boisvert asked to be allowed to represent her husband in the action he had brought. In her submission, her husband was incapable of representing himself because of his physical and mental state, and this was confirmed by a note from his attending physician. Mr. Bibaud was suffering from a painful post-operative syndrome and regularly took cannabis for medical reasons. Essentially, the use of cannabis coupled with the consequences of his medical and physical problems did not allow him to represent himself. Moreover, he had signed a general power of attorney and a mandate in favour of the appellant in anticipation of his being incapacitated. However, the mandate was not homologated as required by art. 2166 of the Civil Code of Québec, S.Q. 1991, c. 64, and so is not executory. In her pleading, the appellant stated that she had assumed control of the family to look after its interests. For these reasons, she asked the Superior Court for leave to present any pleadings connected with her husband’s case and to plead for him. She was accordingly requesting leave to [translation] “aid, assist and represent the plaintiff”. At the hearing held in this Court, the appellant confirmed that the purpose of her intervention was not to assert an interest of her own, separate from that of her husband, but to act on his behalf as an advocate would do.

[5] On October 28, 2002 a judgment of Guibault J. of the Quebec Superior Court dismissed the application to intervene. According to that decision, the sole purpose of the application to intervene was to represent the plaintiff, Mr. Bibaud, not to assert any personal interests. Further, according to art. 62 C.C.P. and s. 128 of the Act respecting the Barreau du Québec, only advocates can plead for another person in the courts. Ms. Boisvert then filed an application for leave to appeal to the Quebec Court of Appeal, which was dismissed by Dalphond J.A. on November 8, 2002. In his opinion, the trial judgment was correct. The appellant obtained leave to appeal to this Court. The Court later appointed an amicus curiae. The Barreau du Québec and the Attorney General of Quebec intervened in the appeal.

III. Relevant Statutory Provisions

[6] The legislative framework of the right to act for and represent another person in the Quebec courts is set out in the Code of Civil Procedure and in the Act respecting the Barreau du Québec, the provisions of which complement each other. Thus, art. 61 C.C.P. recognizes the right of a party to represent himself, but requires that anyone performing the duties of mandatary or required to act on behalf of another do so through an advocate:

61. No one is required to be represented by attorney before the courts, except:

(a) legal persons;

(b) the Public Curator;

(c) trustees, guardians, liquidators, receivers and other representatives of collective interests, when they act in that capacity;

(d) collection agents and purchasers of accounts, concerning the accounts which they are charged with recovering or which they have purchased;

(e) general or limited partnerships and associations within the meaning of the Civil Code of Québec, unless all the partners or members act themselves or mandate one of their number to act;

(f) persons acting on behalf of others under article 59.

Nevertheless, the claim of a legal person, general or limited partnership or association within the meaning of the Civil Code of Québec, to participate in a distribution of funds derived from the sale of property of a debtor or from the seizure or voluntary deposit of his salary, wages or earnings, may be made by any attorney under a general or special power.

Article 62 C.C.P. sets out the general principle that the right to act as attorney in the courts is reserved for advocates, apart from exceptions:

62. The right to act as attorney before the courts is reserved exclusively to advocates, except in the cases set forth in paragraph 7 of section 15 of the Notaries Act (chapter N‑3).

Section 128 of the Act respecting the Barreau du Québec confirms advocates’ monopoly of representation and defines its content more specifically:

128. (1) The following acts, performed for others, shall be the exclusive prerogative of the practising advocate or solicitor:

(a) to give legal advice and consultations on legal matters;

(b) to prepare and draw up a notice, motion, proceeding or other similar document intended for use in a case before the courts;

(2) The following acts, performed for others, shall be the exclusive prerogative of the advocate and not of the solicitor:

(a) to plead or act before any tribunal, except before:

(1) a conciliation officer or an arbitrator of disputes or grievances, within the meaning of the Labour Code (chapter C‑27);

(2) the Commission des relations du travail established by the Labour Code;

(3) the Commission de la santé et de la sécurité du travail established pursuant to the Act respecting occupational health and safety (chapter S‑2.1), a review board established under the said Act or the Workers’ Compensation Act (chapter A‑3), the social affairs division of the Administrative Tribunal of Québec, instituted under the Act respecting administrative justice (chapter J‑3), in the case of a proceeding pertaining to compensation for rescuers and victims of crime, a proceeding brought under section 65 of the Workers’ Compensation Act (chapter A‑3) or a proceeding brought under section 12 of the Act respecting indemnities for victims of asbestosis and silicosis in mines and quarries (chapter I‑7), the Commission d’appel en matière de lésions professionnelles established pursuant to the Act respecting industrial accidents and occupational diseases (chapter A‑3.001) or the Commission des lésions professionnelles established under the said Act;

(4) the Régie du logement established under the Act respecting the Régie du logement (chapter R‑8.1);

(5) the social affairs division of the Administrative Tribunal of Québec, to the extent that the Minister of Employment and Social Solidarity or a body which is his delegatee as regards the application of the Act respecting income support, employment assistance and social solidarity (chapter S‑32.001) is to be represented to plead or act in his or its name;

(6) an arbitration officer, a conciliation officer, a council of arbitration, the construction industry commissioner, a construction industry deputy‑commissioner or an investigator within the meaning of the Act respecting labour relations, vocational training and manpower management in the construction industry (chapter R‑20);

(7) in matters of immigration, the social affairs division of the Administrative Tribunal of Québec, in the case and subject to the conditions set out in the third paragraph of section 102 of the Act respecting administrative justice;

In the case of proceedings in the small claims court under Book VIII of the Code of Civil Procedure, however, art. 959 allows physical persons to “give a mandate to their spouse, a relative, a person connected by marriage or a friend to represent them”.

[7] The Code of Civil Procedure also contains provisions governing the procedure for intervention or participation in a trial by third parties. Article 208 sets out the general principle allowing a third party who has a personal interest or whose presence is necessary to “authorize, assist or represent a party who is incapable” to intervene at any time before judgment. Article 209 then distinguishes aggressive and conservatory voluntary interventions:

208. Any person interested in an action to which he is not a party, or whose presence is necessary to authorize, assist or represent a party who is incapable, may intervene therein at any time before judgment.

209. Voluntary intervention is termed aggressive when the third party asks that he be acknowledged as having, against the parties or one of them, a right which is in dispute; it is termed conservatory when the third party only seeks to be substituted for one of the parties, in order to represent him, or to be joined with such party in order to assist him, either to aid his action or to support his pretensions.

We must now consider whether the application by the appellant to intervene should have been dismissed taking into account this legislative background as well as the provisions governing the status of incapable persons and the existence of procedures for protecting them.

IV. Analysis

A. Nature of Appellant’s Application

[8] To determine the merits of Ms. Boisvert’s application, we must identify its basis and purpose. The appellant argued that art. 208 C.C.P. allowed her to intervene to represent, support and assist her husband. As explained at the hearing, her purpose was not to assert a personal interest separate from that of her husband, but to represent him, to act as his attorney, so as to successfully conclude his action for damages. The basis of the application was, first, the impossibility of obtaining legal aid, and second, his wish not to use an advocate since his earlier dealings with a member of the Bar caused him to lose all confidence in the legal profession. There are thus two very different reasons. The first appears to be economic in nature. The record does not contain much information in this regard. It does not indicate whether Mr. Bibaud was entitled to legal aid or whether legal aid could be given conditionally, subject to the outcome of the action. We only know that an unidentified employee told Ms. Boisvert by telephone that her husband was not eligible. Ms. Boisvert therefore did not rule out the possibility of using the services of an advocate, if legal aid were to cover his or her fees or to provide the services of one of its advocates. It is only if she is unable to obtain legal aid that she rules out any possibility of using advocates, since she has no confidence in private practitioners. The purpose of her application is to obtain confirmation that she may act as advocate for her husband. The application also assumes that the court accepts that her husband is incapable in fact and in law institutes a kind of protective supervision and assistance allowing her to represent him.

B. Whether the Application Should Have Been Dismissed

[9] The appellant’s application comes up against the express requirements of the legislation governing civil procedure in Quebec and representation in the courts. It is also difficult to reconcile with protective supervision for incapable persons in Quebec civil law. From these two standpoints, it is important to note first that the essential structure of civil procedure in Quebec is codified and so legislative in nature (D. Ferland and B. Emery, Précis de procédure civile du Québec (4th ed. 2003), vol. 1, at p. 1; Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743, 2001 SCC 51, at para. 35). Additionally, the question of the legal capacity of physical persons and the nature and conditions for instituting protective supervision for incapable persons comes under the substantive law provisions contained in Title Four of the Civil Code of Québec, arts. 153 to 297, to which may be added the provisions dealing with a mandate granted in anticipation of incapacity, arts. 2166 to 2174 (see, in this regard, É. Deleury and D. Goubau, Le droit des personnes physiques (3rd ed. 2002), at pp. 363 et seq.). The Code of Civil Procedure sets out the procedural system applicable to applications and matters relating to protective supervision for incapable persons and their representation. In particular, the relevant rules are contained in Book VI of the Code of Civil Procedure on non-contentious matters (see G. Taschereau, “Matières non contentieuses”, in Ferland and Emery, supra, vol. 2, at pp. 737 et seq.). Judicial action and discretion in these areas in Quebec depend on this legislative background and must comply with the constraints that it may impose on judicial intervention and imagination.

[10] Where representation in the courts is concerned, the Quebec legislature has made a legislative choice that, on the one hand, recognizes a physical person’s right to represent himself or herself, but, on the other, obliges him or her to use the services of an advocate in acting for another, under arts. 61 and 62 C.C.P. This Court has considered the bases and consequences of this legislative choice, and recognized its importance for the operation of Quebec legal institutions:

The special rules governing the practice of the legal profession are justified by the importance of the acts that advocates engage in, the vulnerability of the litigants who entrust their rights to them, and the need to preserve the relationship of trust between advocates and their clients.

(Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45, at para. 17, per Gonthier J.)

As I noted earlier, representation by spouses, relatives, in-laws or friends is only allowed in cases falling within the jurisdiction of the small claims division of the Court of Québec pursuant to art. 959 C.C.P.

[11] In this regard, the provisions of the Code of Civil Procedure governing interventions do not alter the rules relating to representation in the civil courts. The use of the intervention procedure has certainly evolved as a result of decisions by the Quebec courts. Despite occasional hesitations and conflicts as the case law has developed, the interests recognized are now broadly accepted, including conservatory interventions (see, e.g., Société canadienne d’indemnisation pour les assurances de personnes v. Services de santé du Québec, 1993 3599 (QC CA), [1993] R.D.J. 394 (C.A.); Boucher v. Pelletier, 1984 2836 (QC CA), [1984] R.D.J. 214 (C.A.); G.T.V. Limousine Inc. v. Service de Limousine Murray Hill Ltée, 1988 682 (QC CA), [1988] R.J.Q. 1615 (C.A.); see also Ferland and Emery, supra, vol. 1, at pp. 355-61). In this case, the appellant gave as her purpose in intervening only the representation of her husband’s interests, through confirmation of her right to plead for him. This application does not correspond to the intervention situations provided for in the Code of Civil Procedure. Recourse to a form of intervention does not alter the rules otherwise applicable to the right to represent another person under the Code of Civil Procedure, which must be read and construed coherently and as a whole. As the Superior Court found, these rules meant that Ms. Boisvert’s application had to be dismissed. Representatives of other persons must themselves be represented in the courts by members of the Barreau du Québec in good standing, for acts covered by the monopoly granted to the legal profession.

C. Representation of Incapable Persons

[12] Although there was little discussion of this point in this appeal, I feel it is worth mentioning the problems the appellant’s application presented for the implementation of the principles and rules of Quebec civil law on the capacity of persons. If the application had been allowed on its present basis and in accordance with the conclusions sought, the Superior Court would have placed Mr. Bibaud in the position of a person whose legal capacity is limited and for whom protective supervision has been instituted, without complying with the legal requirements regarding control of the existence of the incapacity, its extent and choice of the appropriate measures. These are not procedural quibbles or trifling matters, but fundamental questions relating to the independence and dignity of individuals. In this area, Quebec civil law rests on a fundamental principle of recognition of the capacity of individuals. Article 154 C.C.Q. states that capacity is the rule and incapacity the exception:

154. In no case may the capacity of a person of full age be limited except by express provision of law or by a judgment ordering the institution of protective supervision.

Incapacity must thus result from the law itself or the institution of protective supervision, which is itself subject to prior authorization by the courts:

[translation]

393. — Legal incapacity, whatever it may be and whatever its extent, is thus a kind of limiting, of reducing, of the legal personality justified by the fact that in reality some persons do not have the means to act effectively and fully. It is therefore up to the law to provide a response to the challenges presented by the weakened position in which such persons or categories of persons find themselves. This response must come from the law. Individuals cannot impose a reduction of legal capacity on themselves, or impose it on their peers. The courts also do not have this power, although since 1990 the law allows them to circumscribe the capacity of certain incapable persons, as we will see in detail in the chapter on protecting persons of full age with diminished capacity. Here again, however, the power is governed by the law and can only be exercised with the most careful attention to legal conditions. Consequently, the incapacity in fact finds its source in the law. It is also because questions of capacity fall outside the purview of individuals that the Code of Civil Procedure provides that the power of the courts to try to reconcile the parties who consent does not apply in matters relating to the capacity of individuals.

(Deleury and Goubau, supra, at para. 393)

[13] With this in view, the Civil Code of Québec provides for various kinds of protective supervision. They seek to minimize the impairment of individual independence as far as possible and allow the courts to tailor protective measures to specific situations and needs. Article 288 C.C.Q. reflects this approach with the tutorship of persons of full age:

288. The court may, on the institution of the tutorship or subsequently, determine the degree of capacity of the person of full age under tutorship, taking into consideration the medical and psychosocial assessment and, as the case may be, the advice of the tutorship council or of the persons who may be called upon to form the tutorship council.

The court then indicates the acts which the person under tutorship may perform alone or with the assistance of the tutor, or which he may not perform unless he is represented.

The institution of the adviser to a person of full age is another illustration of the legislative intention to minimize the impairment of personal freedom:

291. The court appoints an adviser to a person of full age who, although generally and habitually capable of caring for himself and of administering his property, requires, for certain acts or for a certain time, to be assisted or advised in the administration of his property.

[14] The kind of judicial intervention sought by the appellant would not be consistent with the protective mechanisms established by the Quebec legislature in cases of incapacity. There is also no basis for it in art. 394.1 C.C.P. That article allows the court to adjourn a hearing until representation can be provided for a minor or an incapable person, when the court considers it is necessary in a proceeding. It may even appoint counsel for this purpose. There is no need to analyse the interpretation of this provision at length, or to speculate on how it is applied, which is not the subject of this case. Suffice it to say that this provision does not overturn the protective supervision of incapable persons, which is always governed by the Civil Code of Québec. It also does not contradict the principle of representation by advocates. On the contrary, it expressly recognizes it. Thus, despite the appellant’s good intentions and her desire to protect her husband’s interests, her application is not consistent with the fundamental principles and rules of civil procedure and of the civil law in Quebec.

V. Conclusion

[15] For these reasons, I would dismiss the appeal, but without costs.

Appeal dismissed.

Solicitor for the respondent Régie de l’assurance maladie du Québec: Denis Semco, Sillery, Quebec.

Solicitors for the respondent Société de l’assurance automobile du Québec: Gélinas & Associés, Quebec.

Solicitor appointed by the Court as amicus curiae: Eva Petras, Montréal.

Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Sainte-Foy.

Solicitors for the intervener Barreau du Québec: Joli-Cœur, Lacasse, Geoffrion, Jetté, Saint-Pierre, Sillery, Quebec.