Canadian Cases on McKenzie Friends

Canadian Cases on McKenzie Friends

Research by Judith M. DaSilva

BRITISH COLUMBIA

1. Hansra v. Hansra, 2015 BCSC 1254 (CanLII) — 2015-08-07 

Supreme Court of British Columbia — British Columbia

business — debt — valuation — buyout — credit

[…]   McKenzie friend for the Respondent: […]

ALBERTA

1. R. v. J.W.S. 2004 ABQB 407 (CanLII) —2004-03-23

Alberta Court of Queen’s Bench—Edmonton , Alberta [reference spelling error “McKenzie]

Criminal law — Offences — Property offences — Possession of breaking instruments — Possession of stolen goods — Procedure — Trial judge’s duties — Where accused unrepresented — Trials — Adjournment.

 […]  [37] The Defendant advised me yesterday that he was going to be assisted or had been assisted in the past, including in front of Justice Sanderman, by a person he called a “friend of the court”, by which the defendant apparently meant someone other than a lawyer who would be participating to assist him.

 [38] This view, perhaps, resembled the notion of a “McKenzie Friend” which is discussed in English jurisprudence[6], or the concept of amicus curiae as known in Canada[7].  […]

2. Schmidt-Paborn v. Lucas, 2005 ABQB 495(Quicklaw)—2005-06-30

Alberta Court of Queen’s Bench—Edmonton, Alberta

Family law — Maintenance and support — Child support — Support guidelines — Calculation or attribution of income — Enforcement of orders — Arrears of maintenance — Reduction or rescission of arrears — Variation or termination

[…] 21 Mr. Schmidt-Paborn’s parents attended at the application with him. Although I explained to Mr. Schmidt-Paborn that because he had attended high school, and appeared not to be mentally or physically handicapped, he should present his own application, although he could ask his father to help him find material; in legal terms, I authorized Mr. Schmidt-Paborn to use his father as a McKenzie friend. Although his parents presumably heard this advice and the reasons therefor, on many occasions, off and on during the course of the hearing, they insisted on speaking for their son. […]

3. Q.A.S. v. C.T.L., 2005 ABQB 495 (CanLII) — 2005-06-30

Court of Queen’s Bench — Alberta

child support — arrears — income — mothers — drug

[…] present his own application, although he could ask his father to help him find material; in legal terms, I authorized Mr. Q.A.S. to use his father as a McKenzie friend. […]

cited by 1 document

4. Milne v. Milne, 2009 ABQB 361 (CanLII) — 2009-06-15

Court of Queen’s Bench — Alberta

property — sheep — marriage — spouse — farm

[…] However, I did allow Ms. Reynolds a “McKenzie friend” to assist her throughout the course of the trial. […]

5. Lameman v. Alberta,

2011 ABQB 396 (CanLII)— 2011-06-24

Court of Queen’s Bench — Alberta

barristers — lawyers — self-represented litigants — inherent jurisdiction — practise

[…] The Alberta Law Reform Institute considered whether the New Rules should allow litigants to be assisted by a “McKenzie friend” adopting the definition of a McKenzie friend as being a   […]   The McKenzie friend’s support may range from a role similar to a legal expert (prompting the litigant to make useful points and representations, and examination of witnesses and giving   […]   The rationale for allowing a McKenzie friend is fairness to self-represented litigants: R. v. Leicester City Justice; ex parte Barrow, [1991] 3 All E.R. 935, cited in CM 12.18   […]

cited by 5 documents CanLII Connects

6. D.W.H. v. D.J.R., 2011 ABQB 608 (CanLII) — 2011-10-12

Court of Queen’s Bench — Alberta

child — parentage — birth — gay — male

[…] [150] In so ordering I am mindful that the Applicant is a self-represented party who was provided assistance through his McKenzie friend. […]

cited by 2 documents

7. Lameman v. Alberta, 2012 ABCA 59 (CanLII) — 2012-03-01

Court of Appeal — Alberta

overseas barristers — lawyers — advocate — unqualified — lawsuit

[…] [8] Subrule (2) of R 2.23 is about a “McKenzie friend” who helps the party silently, but cannot speak: McKenzie v McKenzie [1971] P 33, [1970] 3 All ER 1034 ( […]   So the appellant does not claim to have the overseas barristers come in as McKenzie friends, and he admits that R 2.23(2) is only indirectly relevant. […]

cited by 9 documents CanLII Connects

8. R v Simpson, 2014 ABCA 301 (CanLII) — 2014-09-16

Court of Appeal — Alberta

will — rescheduled — alacrity — heard — single

[…] The Applicant Scott Collier Simpson with McKenzie Friend Mr. Prefontaine […]

9. 908077 Alberta Ltd v 1313608 Alberta Ltd, 2015 ABQB 108 (CanLII)— 2015-02-13

Court of Queen’s Bench — Alberta

represent — inherent jurisdiction — non-lawyer — litigant — corporation

[…] Rather, the Alberta Rules of Court, Alta Reg 124/2010 permits individual self-representation and assistance by a “McKenzie Friend” (from McKenzie v McKenzie [1971] P 33, [1970] 3 All   […] at para 8, 348 DLR (4th) 45 interprets these provisions to mean that in-court non-lawyer representation is restricted to the support functions provided by a “McKenzie Friend”. […]   A McKenzie Friend may be anyone and may assist anyone properly before the court by providing passive in-court support. […]

cited by 5 documents

10. Landmass Dirtworx Ltd v Prairie Mountain Construction (2010) Inc, 2015 ABQB 362 (CanLII) — 2015-06-04

Court of Queen’s Bench — Alberta

person — affidavit — defence — corporation — lawyer

[…] 4. New Rule 2.23 allows any person to provide only silent and passive support in court, provided those activities are restricted to a “McKenzie Friend” role; and […] any assistance by a non-lawyer cannot contravene the Legal Profession Act and assistance is essentially limited (if permitted at all) to those provided by a so-called McKenzie friend. […]

CanLII Connects

11. National Leasing Group Inc v Acme Enterprises Ltd, 2015 ABQB 631 (CanLII) — 2015-10-08

Court of Queen’s Bench — Alberta

lease — company — separate legal personality — corporate — veil

[…] prohibition in section 106 of the Legal Profession Act, RSA 2000, c. L-8 and the absence of any discretionary exemption in the Rules, other than for McKenzie friends.[1 […]   [3] Re O’Connell, Whelan and Watson [2005] EWCA Civ 759, for a thorough review of McKenzie friends and the duties of the Court in another context. […]

MANITOBA

1. The Law Society of Manitoba v. Pollock, 2007 MBQB 51 (CanLII)— 2007-03-08

Court of Queen’s Bench of Manitoba — Manitoba

summary conviction — injunction — agent — self-represented litigant — provisions

[…] [121] Styled in a Notice of Constitutional Question, but also raised during his argument, Mr. Pollock wishes the Court to consider his ability to act as a “McKenzie Friend” notwithstanding   […]   Secondly, the role of the McKenzie Friend was limited to assisting the litigant and giving advice to the litigant, not advancing argument, cross-examining or performing any other functions that   […]   However, if he held himself out to be available as a McKenzie Friend to all and sundry, or proposed to charge a fee for his services, then I believe different   […]

cited by 1 document

ONTARIO

 1. F. v. Wawanesa Mutual Insurance Co., 2006 O.F.S.C.D. 201 (Quicklaw)—2006-12-22

Ontario Financial Services Commission — Ontario

self-represented litigant — proceeding vexatious due to self-rep — arbitration order

[…] D.F., represented herself, assisted by Michael Gillen as a “McKenzie Friend”1 […]

15 I do not find that D.F. intended to unnecessarily prolong the hearing, but in fact her conduct did just that. The question this raises is whether there are any expense implications of an unrepresented person occasioning this type of prolongation of an arbitration hearing.

16 I am not privy to why D.F. did not have legal representation in this arbitration. I do know from the evidence at the hearing that she does have legal representation on at least two other matters which are in litigation. D.F. also claims in her request for arbitration expenses that she should be compensated by Wawanesa for 32 hours of “advice” related to this arbitration which she claims she owes to unnamed lawyers. She also had Mr. Gillen assisting her in the expense hearing, although he stated that he was not on the record but only helping D.F. out for the day. Effectively, he was acting in the capacity of a “McKenzie friend”, as noted above.

17 I find that it is important to make a distinction between a unrepresented applicant who cannot, for whatever reason, find a lawyer or paralegal to represent her in a hearing and decides to fend for herself, and a person who acts without legal representation but clearly is getting advice from lawyers in “off the record” sorts of ways. The latter is in effect an example of “unbundling” legal services, a process that is becoming increasingly common. I find that if a person picks and chooses which legal services they will engage a representative for, then they have to accept the responsibility that goes along with that choice. […]

2. Logtenberg v. ING Insurance Co., 2008 O.J. 3394 (CarswellOnt)—2008-03-28

Ontario Superior Court of Justice

Civil Practice and Procedure

[…] The Defendants/Responding parties consent to the Plaintiff making use of a high back chair during the proceedings and to the aforementioned items 1 to 7. These will be permitted as follows:

  1. The McKenzie Friend (”M.F.”) can assist the Plaintiff in locating the courtroom;
  2. TheM.F.” can assist the Plaintiff in organizing and locating court documents;
  3. TheM.F.” can assist the Plaintiff in the task of note taking during the proceeding;
  4. The M.F.” can quietly prompt the Plaintiff during her submissions and/or quietly signal to the Plaintiff that she should conclude her submissions;
  5. The M.F.” can make his/her own notes during the proceedings;
  6. The “M.F.” can offer suggestions to the Plaintiff during any court recess;
  7. The M.F.” can quietly indicate to the Plaintiff that all points to have been covered in her submissions have/have not been communicated to the court. […]

2. D.F. v. Wawanesa Mutual Insurance Co.,  2008 O.F.S.C.D. 56 (Quicklaw)—2008-04-15

Ontario Financial Services Commission — Ontario

23 Ms. F submits that in his decision the arbitrator made a number of comments that showed bias against her. For instance, she submits that his description of her wanting an extra long mattress because she might marry a tall spouse was outrageous and was based on a tangential remark that was misquoted and taken out of context. Ms. F submits that the arbitrator’s reference to the lawyer who assisted her at the expense hearing as a “McKenzie friend” was insulting and a reflection of his attitude towards her. Ms. F submits that the arbitrator’s comment that she “quite evidently has an artistic temperament” is unclear and was in any event unnecessary.

24 Indeed, the arbitrator did make a number of impressionistic comments in his decision that could have been omitted without affecting the substance of his decision. However, I fail to see any evidence of bias in them. Rather, some of them seem to have been an attempt to personalize

25 Ms. F beyond just being a claimant, such as the “artistic temperament” comment, or his remark that she was quite eloquent and frequently demonstratively emotive in her descriptions of how her life had changed as a result of the automobile accident. I see the reference to the “McKenzie friend” as his attempt to describe the role of counsel who assisted Ms. F without representing her. As for the remark about the bed, if it came from a tangential remark by Ms. F, it was treated equally tangentially, since as discussed below, the arbitrator found the mattress was not reasonable or necessary, whatever its size.

3. Decision No. 1565/08I, 2008 ONWSIAT 2055 (CanLII)— 2008-07-25

Ontario Workplace Safety and Insurance Appeals Tribunal — Ontario

facilitator — legal services — worker s representative — ex5empt — friend

[…] The materials that had been forwarded to the Tribunal in advance of the hearing on behalf of the worker included documents related to the legal concept of a “McKenzie Friend”. […]   There was some suggestion that Ms. Champagne might be appearing as a “McKenzie Friend.” Ms. Shaw referred the Panel to a decision of the Manitoba Court of Queen’s Bench,   […]   It should be noted, however, that the McKenzie Friend doctrine was used in England primarily for proceedings in Family Court, not in criminal or civil matters. […]

4. Galati v. Aviva Canada Inc., 2011 O.F.S.C.D. 5 (Quicklaw)—2011-10-2011

Ontario Financial Services Commission

[…] 28 I also noted that Mr. Di Prima’s role in this proceeding was still uncertain. I referenced specific cases regarding counsel being appointed a “friend of the court” or as a “McKenzie Friend,” and asked for Mr. Di Prima’s submissions, including possible entitlement or liability for legal expenses.

29 My February 9, 2010 letter indicated that Mr. Di Prima’s February 5, 2010 letter, stating only that he would be assisting the Appellant but not formally appearing on the record, did not respond to the specifics of my letter. As Mr. Di Prima had no standing as representative, “friend of the court” or a “McKenzie Friend,” on February 8, 2009 the Appeals Administrator had contacted the Respondent’s counsel and the Appellant directly to set a new appeal hearing date. […]

NOVA SCOTIA

1. R. v. Hillman, 2015 NSSC 359 (CanLII)— 2015-07-22

Supreme Court of Nova Scotia — Nova Scotia

lay representation — indictable — forbid — non-legally trained lay — summary

[…] I have also considered Mr. Hillman’s arguments with respect to the Interpretation Act and also to the issue of ‘McKenzie Friend’ representation as this applies in U.K. family law   […]   I also conclude that McKenzie Friends, do not have a role here in our jurisdiction given the wording and operation of our Criminal Code. […]

NEWFOUNDLAND

1. Fiander v Mills, 2015 NLCA 31 (CanLII) — 2015-06-24

Supreme Court of Newfoundland and Labrador, Court of Appeal — Newfoundland and   Labrador

abuse of process — applications — vexatious — fishery officer — strike

[…] Accordingly, he had no authority to represent the appellant in these proceedings except perhaps as a McKenzie friend. […]

cited by 5 documents

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