Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45
Barreau du Québec Appellant
v.
Simon Fortin, Huguette Fortin and Lise Fortin Respondents
and
Jean-Guy Chrétien Mis en cause
and
The Attorney General of Quebec Mis en cause
Indexed as: Fortin v. Chrétien
Neutral citation: 2001 SCC 45.
File No.: 27152.
Hearing and judgment: November 2, 2000.
Reasons delivered: July 12, 2001.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Contracts -- Validity -- Formation of contract -- Respondents entering into contract with Club juridique for non-advocate to perform service of preparing and drawing up legal proceedings for remuneration -- Contract made in contravention of provisions of Act respecting the Barreau du Québec concerning practice of profession of advocate -- Whether contract that contravenes those provisions must be sanctioned by absolute nullity -- If so, whether nullity of contract affects validity of resulting proceedings -- Principle of simple nullity -- Act respecting the Barreau du Québec, R.S.Q., c. B-1, s. 128(1)(b) -- Civil Code of Québec, arts. 1411, 1417.
Barristers and solicitors -- Practice of profession of advocate – Whether provisions of Act respecting the Barreau du Québec concerning practice of profession of advocate are provisions of public order -- Act respecting the Barreau du Québec, R.S.Q., c. B-1, s. 128(1)(b).
Civil procedure -- Right of person to represent self before court -- Respondents entering into contract with Club juridique for non-advocate to perform service of preparing and drawing up legal proceedings for remuneration -- Contract made contrary to provisions of Act respecting the Barreau du Québec concerning practice of profession of advocate -- Whether nullity of contract affects validity of resulting proceedings -- Code of Civil Procedure, R.S.Q., c. C-25, art. 61.
The respondents, who were landowners who believed they were affected by flooding from a neighbouring parcel of land owned by the mis en cause, decided to bring legal proceedings to have the flooding stopped. As they could not afford the services of an advocate and were not eligible for legal aid, they joined the Club juridique and paid an annual membership fee to obtain aid and assistance in pursuing their remedies. D, who was not a member of the Barreau because he had been struck from the Roll of the Order, prepared and drew up the injunction proceedings. The respondents, who knew that D was not an advocate, signed the injunction proceedings and filed them in the Superior Court. The mis en cause moved to dismiss on the ground that the proceedings were drawn up by a person who was not a member of the Barreau, contrary to s. 128(1)(b) of the Act respecting the Barreau du Québec. The Superior Court granted the motion to dismiss and dismissed the respondents’ proceedings. The respondents appealed that decision and the Court of Appeal allowed the application to intervene by the Barreau du Québec. The Court of Appeal reversed the judgment of the Superior Court and authorized the respondents to bring their action, a decision which the Barreau du Québec is now appealing.
Held: The appeal should be dismissed.
A contract that contravenes s. 128(1)(b) of the Act respecting the Barreau du Québec must be sanctioned by absolute nullity. The provisions of that Act relating to the practice of the profession of advocate are provisions of public order in that they are designed to protect the general interest. An agreement entered into in contravention of those provisions is, like all other contracts, governed by the mandatory general provisions relating to the conditions of formation of contracts set out in the Civil Code of Québec. Specifically, art. 1411 provides that the cause of a contract must not be prohibited by law or contrary to public order. Because s. 128(1)(b) is a provision of public order, any agreement whose cause contravenes that provision is contrary to public order. Any contract which does not meet the necessary conditions of its formation may be null (art. 1416 C.C.Q.), and it is absolutely null where, as in this case, the condition is necessary for the protection of the general interest (art. 1417 C.C.Q.).
The nullity of the contract does not affect the validity of the resulting proceedings. The Civil Code of Québec provides for a distinction between the object of an obligation and the object of the contract. The object of the obligation of D and the Club juridique is limited to preparing and drawing up proceedings. The proceeding presented to the courts is a separate juridical act performed by the respondents as litigants representing themselves in accordance with art. 61 C.C.P. This juridical act may be distinguished from the agreement made between the parties in a number of respects. First, this unilateral juridical act is signed by the respondents and expresses their sole intention of exercising their rights, and is not the result of a bilateral agreement. Since it is a judicial act, it does not have the essentially private nature of a contract, and it has a public dimension once it is presented to the court. Lastly, it may be distinguished from the agreement for drawing up the legal proceeding in that its specific object is the representation of the respondents’ rights before the courts. Under art. 61 C.C.P., a person representing himself may present the necessary proceedings to exercise his rights and remedies.
In this case, if the proceedings that were produced as a result of this null act are to stand, it will not be by application of the concept of partial nullity, but because of the principle of simple nullity, which holds that the nullity of an act cannot extend to other distinct juridical acts. Extended nullity occurs only exceptionally. It applies to other juridical acts only when the two acts are closely connected and were made by the same parties for a common purpose. The nullity of the agreement for preparing and drawing up proceedings does not necessarily have an impact on the validity of the proceeding presented to the court by the respondents, which was a distinct juridical act. The nullity of that agreement therefore cannot affect the validity of the proceedings presented to the court in a legal action. Applying the principle of simple nullity of the agreement for drawing up legal proceedings in civil law is perfectly consistent with the intent expressed by the Quebec legislature when it enacted art. 61 C.C.P. to enable a party to represent himself. A provision of this kind cannot be rendered ineffective by the provisions of the Act respecting the Barreau du Québec, no matter how prohibitive they may be. In fact, the legislature has not provided any penalty in the legislation in question for a litigant who obtains the assistance of a person who is not a member of the Barreau for drawing up and preparing his legal proceedings, although it has expressly done so on other occasions. The Act aims rather to punish persons who are not members of the Barreau who perform acts reserved for advocates. In the absence of an express legislative provision, a litigant who makes the mistake of using the services of such persons cannot be penalized. In no respect, however, can they replace an advocate.
It is a mistake to believe that access to justice in Canada is furthered by allowing people to use proceedings prepared or drawn up by persons who are not members of the Barreau, or persons who have been struck off the Roll as a result of a breach of professional standards, and who claim to be capable of providing good quality services. On the contrary, it may often be adverse to litigants’ own interests to exercise that freedom. As an officer of the court, the advocate plays an essential role in our justice system, in representing the rights of litigants before the courts, but also at the preceding stage of settling disputes.
Cases Cited
Referred to: Gagnon v. Prévost, Sup. Ct. Terrebonne, No. 700-12-019558-923, May 13, 1996; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Pauzé v. Gauvin, [1954] S.C.R. 15; Garcia Transport Ltée v. Royal Trust Co., [1992] 2 S.C.R. 499; In re Réserves du Nord (1973) Ltée: Biega v. Druker, [1982] C.A. 181; Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 142 D.L.R. (3d) 512, [1982] C.S. 1146; Cass. civ. 1re, December 16, 1992, Bull. civ. X, No. 316; Cass. civ. 2e, March 11, 1992, Bull. civ. III, No. 79; Millette v. 2862-2678 Québec Inc., Sup. Ct. Laval, No. 540-05-002176-968, November 27, 1996; Dubé v. Beaulieu, C.Q. Beauharnois, No. 760-22-000024-979, June 25, 1997; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
Statutes and Regulations Cited
An Act respecting the Barreau du Québec, R.S.Q., c. B-1, ss. 2, 15(2), 56, 122, 123, 128(1)(a), (b), (c), 128(2), 129, 132 to 140.
By-law respecting accounting and trust accounts of advocates, R.R.Q. 1981, c. B-1, r. 3.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 9, 1373, 1385 to 1417, 1419, 1422, 1438, 1699 et seq., 2085.
Code de la consommation (France), art. L. 311-21.
Code of Civil Procedure, R.S.Q., c. C-25, arts. 61, 62.
Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1, ss. 2.02, 2.05, 2.06, 3.02.11.
Consumer Protection Act, R.S.Q., c. P-40.1, s. 116.
Professional Code, R.S.Q., c. C-26, ss. 12, 23, 26, 40, 45 to 55.1, 87, 88, 89, 90, 94(i), 116 to 161.1, 188.
Regulation respecting entry on the Roll of the Order of Advocates, R.R.Q. 1981, c. B-1, r. 8.
Regulation respecting professional training of advocates, R.R.Q. 1981, c. B-1, r. 7.
Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, (1994) 126 O.G. II, 4691.
Regulation respecting the procedure of the professional inspection committee of advocates, R.R.Q. 1981, c. B-1, r. 10.
Authors Cited
Barreau du Québec. École du Barreau. Collection de droit 1999-2000, vol. 1, Barreau et pratique professionnelle, ch. X. Cowansville, Qué.: Yvon Blais, 1999.
Baudouin, Jean-Louis, et Pierre-Gabriel Jobin. Les obligations, 5e éd. Cowansville, Qué.: Yvon Blais, 1998.
Buckingham, Donald E., et al. Legal Ethics in Canada -- Theory and Practice. Toronto: Harcourt Brace Canada, 1996.
Canadian Bar Association. Code of Professional Conduct. Ottawa: Canadian Bar Association, 1988.
Héron, Jacques. “Réflexions sur l’acte juridique et le contrat à partir du droit judiciaire privé” (1988), 7 Droits 85.
Heymann, Philip B., and Lance Liebman. The Social Responsibilities of Lawyers: Case Studies. Westbury, N.Y.: Foundation Press, 1988.
Lluelles, Didier, avec la collaboration de Benoît Moore. Droit québécois des obligations, vol. 1. Montréal: Thémis, 1998.
MacKenzie, Gavin. Lawyers and Ethics: Professional Responsibility and Discipline, vol. 1. Scarborough, Ont.: Carswell, 2000 (loose-leaf updated 2001, release 1).
Martin de la Moutte, Jacques. L’acte juridique unilatéral: essai sur sa notion et sa technique en droit civil. Paris: Imprimerie Bernard Frères, 1951.
Mazeaud, Henri, et Léon, Jean Mazeaud et François Chabas. Leçons de droit civil, t. II, vol. 1, Obligations -- théorie générale, 9e éd. Paris: Montchrestien, 1998.
Moore, Benoît. “De l’acte et du fait juridique ou d’un critère de distinction incertain” (1997), 31 R.J.T. 276.
Picod, Yves. Répertoire de droit civil, t. VII, 2e éd. “Nullité”. Paris: Dalloz, 2001.
Pineau, Jean, Danielle Burman et Serge Gaudet. Théorie des obligations, 3e éd. Montréal: Thémis, 1996.
Private Law Dictionary and Bilingual Lexicons, 2nd ed. Editorial Committee: Paul-André Crépeau et al. Cowansville, Qué.: Yvon Blais, 1991.
Québec. Ministère de la Justice. Comité de révision de la procédure civile. Document de consultation. La révision de la procédure civile. Ste-Foy, Qué.: Le Comité, 2000.
Simler, Philippe. La nullité partielle des actes juridiques. Paris: Librairie générale de droit et de jurisprudence, 1969.
Veaux, Daniel. “Contrats et obligations -- Nullité ou rescision des conventions”, Juris-Cl. civil, Fasc. 50, no 84.
Woog, Jean-Claude. Pratique professionnelle de l’avocat, 3e éd. Paris: Gazette du Palais: Litec, 1993.
APPEAL from a judgment of the Quebec Court of Appeal, [1998] Q.J. No. 4010 (QL), setting aside a judgment of the Superior Court. Appeal dismissed.
François Folot, for the appellant.
Simon Fortin, Huguette Fortin and Lise Fortin, on their own behalf.
Written submissions only by Maurice Warren for the mis en cause Chrétien.
English version of the judgment of the Court delivered by
Gonthier J. —
I. Introduction
1 The respondents are persons representing themselves before the courts in accordance with art. 61 of the Code of Civil Procedure, R.S.Q., c. C-25 (“C.C.P.”). However, they sought the advice of a person who was not a member of the Barreau du Québec for preparing and drawing up their injunction proceedings against the mis en cause Jean-Guy Chrétien, contrary to s. 128(1)(b) of the Act respecting the Barreau du Québec, R.S.Q., c. B-1 (“A.B.”). The main issue raised in this Court is whether the nullity of the contract that the respondents entered into with this person, who is not an advocate, affects the validity of the resulting proceedings.
2 At the hearing on November 2, 2000, McLachlin C.J., for the Court, delivered a judgment from the bench in this appeal. She held that the Club juridique had no right to be made a party to this case, having regard to the order of the Court of Appeal directing the respondents to [translation] “strike the name Le Club juridique from their solemn declaration and strike Le Club juridique as mis en cause from their pleadings”. She then dismissed the appeal, with reasons to follow. These are the reasons for that decision.
II. Facts
3 The facts are not in dispute. In October 1996, the respondents owned three parcels of land that they had inherited from their father. As they believed they were affected by flooding from a neighbouring parcel of land owned by the mis en cause, Jean‑Guy Chrétien, they decided to bring legal proceedings for the purpose of having this flooding stopped. Because they could not afford the services of an advocate and were not eligible for the legal aid provided by the government of Quebec, they decided to join the Club juridique, an association founded by Yvon Descôteaux, a former advocate who had been struck off the Roll of the Order in 1990, to obtain aid and assistance in pursuing their remedies. For this purpose they each paid an annual membership fee of $50. Mr. Descôteaux prepared and drew up the injunction proceedings he considered to be necessary at that point to protect the rights of the respondents, who were aware that Mr. Descôteaux is not an advocate. Nonetheless, they ordered the appropriate documents, which they signed themselves and then had stamped and filed with the Superior Court on October 21, 1996. At all of the times in issue, the respondents represented themselves before the courts.
4 On November 13, 1996, the mis en cause Chrétien filed a motion to dismiss the motion for an interlocutory injunction and action for a permanent injunction presented by the respondents, on the ground that those proceedings, in all probability and as ascertained, had been drawn up by a person not entered on the Roll of the Order of the Barreau du Québec, contrary to s. 128(1)(b) A.B. In the alternative, he sought to have the Club juridique removed from the case on the ground that it had no legal interest.
5 On November 22, 1996, Goodwin J. of the Superior Court granted the motion to dismiss filed by the mis en cause Chrétien and dismissed the respondents’ application for an interlocutory injunction and action for a permanent injunction, rights reserved. On December 10, 1996, the respondents appealed that decision to the Quebec Court of Appeal. On June 6, 1997, the Court of Appeal allowed the application to intervene filed by the appellant, the Barreau du Québec, for the purpose of supporting and defending the application of the Act respecting the Barreau du Québec. The mis en cause Chrétien then advised the Court of Appeal that he would not submit argument, since in his view the issue was really between the respondents and the appellant. On December 3, 1998, the Court of Appeal, unanimously reversed the decision of the Superior Court from the bench, thus authorizing the respondents to bring their action: [1998] Q.J. No. 4010 (QL). On October 14, 1999 the appellant was granted leave to appeal to this Court, [1999] 3 S.C.R. v.
III. Relevant legislation
6 Professional Code, R.S.Q., c. C-26
26. The members of an order shall not be granted the exclusive right to practise a profession except by an act; that right must not be granted except in cases where the acts done by these persons are of such a nature and the freedom to act they have by reason of the nature of their ordinary working conditions are such that for the protection of the public they cannot be done by persons not having the training and qualifications required to be members of the order.
188. Every person who contravenes a provision of this Code or the Act or letters patent constituting an order is guilty of an offence and is liable to a fine of not less than $600 nor more than $6 000.
Code of Civil Procedure, R.S.Q., c. C-25
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.
. . .
62. The right to act as attorney before the courts is reserved exclusively to advocates, except in the cases set forth in paragraph e of section 9 of the Notarial Act.
Act respecting the Barreau du Québec, R.S.Q., c. B-1
122. (1) A person shall become disqualified from practising the profession of advocate and shall lose his status of member of the Bar when:
(a) (paragraph repealed);
(b) he holds a position or an office incompatible with the practice or dignity of the profession of advocate;
(c) he is provided with a tutor, a curator or an adviser;
(d) he assigns his property or an order of sequestration is made against it under the Bankruptcy and Insolvency Act.
123. (1) Every person who has become disqualified from practising the profession of advocate who, directly or indirectly, practises alone or with an advocate, or who advertises or represents himself as an advocate shall be liable to the penalties provided in section 132 in addition to those provided in section 156 of the Professional Code.
(2) A judicial proceeding taken by a person who has become disqualified from practising as an advocate shall be invalidated by the sole fact of such disqualification only if the client for whom it has been taken so requests or if it is established that he was aware of such disqualification.
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;
(c) to prepare and draw up an agreement, petition, by‑law, resolution or other similar document relating to the incorporation, organization, reorganization or winding-up of a corporation governed by federal or provincial laws respecting companies, or the amalgamation of several corporations or the surrender of a charter.
(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:
129. None of the provisions of section 128 shall limit or restrict:
. . .
(b) the rights specifically defined and granted to any person by any public or private law;
132. Notwithstanding any law to the contrary and without limiting the scope of this act, whoever practises the profession of advocate without being entered on the Roll is guilty of an offence and is liable to the penalties provided in section 188 of the Professional Code.
Civil Code of Québec, S.Q. 1991, c. 64
1385. A contract is formed by the sole exchange of consents between persons having capacity to contract, unless, in addition, the law requires a particular form to be respected as a necessary condition of its formation, or unless the parties require the contract to take the form of a solemn agreement.
It is also of the essence of a contract that it have a cause and an object.
1411. A contract whose cause is prohibited by law or contrary to public order is null.
1416. Any contract which does not meet the necessary conditions of its formation may be annulled.
1417. A contract is absolutely null where the condition of formation sanctioned by its nullity is necessary for the protection of the general interest.
1422. A contract that is null is deemed never to have existed.
In such a case, each party is bound to restore to the other the prestations he has received.
1438. A clause which is null does not render the contract invalid in other respects, unless it is apparent that the contract may be considered only as an indivisible whole.
The same applies to a clause without effect or deemed unwritten.
IV. The Courts Below
A. Quebec Superior Court
7 Goodwin J. took the view that it had been clearly demonstrated that the impugned proceedings had been prepared and drawn up by Yvon Descôteaux, the founder and mandatary of the Club juridique, which the respondents joined by paying $50 each for a membership card. It was also established that Mr. Descôteaux was a former advocate who was struck off the Roll of the Order of the Barreau du Québec and that the respondents were aware of that fact. Thus, in view of the decision of Journet J. of the Superior Court in Gagnon v. Prévost, Sup. Ct. Terrebonne, No. 700-12-019558-923, May 13, 1996 (which held that a proceeding prepared in contravention of the Act respecting the Barreau du Québec must be dismissed), the motion to dismiss should be granted and the motion for an interlocutory injunction and action for a permanent injunction should be dismissed, rights reserved.
B. Quebec Court of Appeal (Brossard and Rousseau-Houle JJ.A. and Biron J. (ad hoc), [1998] Q.J. No. 4010 (QL)
8 The Court of Appeal began by pointing out that the laws establishing professional standards are laws of political and moral public order, in that they were enacted to protect the general public interest. The parties to an agreement cannot defeat these laws or avoid their application in any manner, and a contract made in contravention of a provision of public order is absolutely null. In this case, there is no doubt that the contravention of s. 128(1)(b) A.B. must be sanctioned by absolute nullity, since a mandate that is null cannot be confirmed and a prohibitive rule that was enacted to protect social order and the administration of justice has been broken.
9 However, the real issue is whether the nullity may be merely partial. With respect to contracts, art. 1438 of the Civil Code of Québec (“C.C.Q.”) provides that a clause which is null does not render the contract invalid in other respects, unless it is apparent that the contract may be considered only as an indivisible whole. Divisibility may also result from the nature of the obligations or the legislature’s objectives. Similarly, although arts. 1411 and 1413 C.C.Q. create a presumption of the invalidity of a juridical operation that contravenes a prohibitive law, that presumption may be rebutted where it appears that the legislature’s objectives require that the nature, circumstances and effects of that juridical operation be examined. In certain cases, the courts have also refused to extend the meaning of the illegal practice of a profession to include incidental juridical operations.
10 In this case, art. 61 C.C.P. allows the respondents to represent themselves. They are not prohibited from obtaining assistance and advice from persons who are not members of the Bar, provided that no mandate is given to those persons to represent them before the courts. Accordingly, s. 128(1)(b) cannot be interpreted as prohibiting those acts. The legislature cannot have intended that the protection granted under s. 61 C.C.P. to persons who are unable to retain the services of an advocate should be turned against them. Thus, despite the fact that the contract of mandate between the respondents and the Club juridique is absolutely null, the validity of the proceedings brought by the Fortin family must be recognized. The Court of Appeal also held that other remedies could be exercised by the Bar against the mandatary of the Club juridique for contravening the Act.
V. Analysis
A. Validity of the Contract Between the Parties
1. Act respecting the Barreau du Québec: Objective of Public Protection
11 For many years, the Quebec legislator has made the practice of certain professions subject to restrictions and various control mechanisms. The Professional Code, R.S.Q., c. C-26 (“P.C.”), which was first enacted in 1973, now governs the 44 professional orders constituted under the Act. It establishes a body, the Office des professions du Québec, whose function is to see that each order carries out the mandate expressly assigned to it by the Code, which is the principal reason for the existence of the order: to ensure the protection of the public (ss. 12 and 23 P.C.). In pursuing this fundamental objective, the legislature has granted the members of certain professions the exclusive right to perform certain acts. Under s. 26 P.C., the exclusive right to practise a profession “must not be granted except in cases where the acts done by these persons are of such a nature and the freedom to act they have by reason of the nature of their ordinary working conditions are such that for the protection of the public they cannot be done by persons not having the training and qualifications required to be members of the order”.
12 The legal profession is one such profession. Section 128 A.B. provides that 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 for use in a case before the courts, or (c) to prepare and draw up an agreement, petition, by‑law, resolution or other similar document relating to the incorporation, organization, reorganization or winding-up of a corporation, while only an advocate may plead or act before any tribunal, except those listed in s. 128(2)(a).
13 In return for this monopoly, the legislature has imposed a number of obligations and responsibilities on the people who perform these exclusive acts. The Barreau du Québec is responsible for the implementation of, compliance with and enforcement of those rules. In that regard, the Barreau ensures the quality of its members’ professional training, including the conditions under which they complete their training period, and verifies their capacity to undertake and continue to practise their profession (s. 94(i) P.C., s. 15(2) A.B., and Regulation respecting professional training of advocates, R.R.Q. 1981, c. B-1. r. 7). It has the privilege of issuing, refusing, withdrawing or suspending the permit to practise the profession and entry on the Roll of the Order and, in particular, it has established a system of professional inspection for that purpose (ss. 40, 45 to 55.1 and 90 P.C., Regulation respecting entry on the Roll of the Order of Advocates, R.R.Q. 1981, c. B‑1, r. 8, and Regulation respecting the procedure of the professional inspection committee of advocates, R.R.Q. 1981, c. B-1, r. 10).
14 The Barreau has also adopted a code of ethics governing the general and special duties of the professional towards the public, his clients and his profession, particularly the duties to discharge his professional obligations with integrity, refrain from acts that are derogatory to the dignity of the profession, refrain from incompatible responsibilities and avoid conflicts of interest, and respect professional secrecy (s. 87 P.C. and Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1).
15 In addition, the Barreau has established a conciliation and arbitration procedure for the accounts of members of the Order which may be used by persons having recourse to the services of the members to challenge the amount of fees demanded (s. 88 P.C. and Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, (1994) 126 O.G. II, 4691). It determines terms and conditions for custody and disposition of sums of money held in trust by advocates for the account of their clients and establishes an indemnity fund to be used to repay amounts of money used for improper or illegal purposes (s. 89 P.C. and By‑law respecting accounting and trust accounts of advocates, R.R.Q. 1981, c. B-1, r. 3).
16 Lastly, to ensure compliance with the standards imposed by law and the Code of ethics of advocates, the Barreau has established a committee on discipline that is responsible for dealing with every complaint made against a professional, investigating their conduct and imposing penalties ranging from a reprimand to a fine or permanent striking off the Roll of the Order (ss. 116 to 161.1 P.C.).
17 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. In Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at p. 335, Estey J. explained as follows the need to regulate the professional activity of members of the Bar (cited with approval in Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 888) as follows:
There are many reasons why a province might well turn its legislative action towards the regulation of members of the law profession. These members are officers of the provincially‑organized courts; they are the object of public trust daily; the nature of the services they bring to the public makes the valuation of those services by the unskilled public difficult; the quality of service is the most sensitive area of service regulation and the quality of legal services is a matter difficult of judgment.
As persons in whom public trust is invested, advocates play a very special role in the community when they perform these acts reserved to them (see R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at paras. 2 and 31). It is the vocation of the Barreau, which, so to speak, makes up for litigants’ lack of knowledge and oversees the quality of the professional services provided, to preserve this relationship of trust.
18 In doing this, the Barreau tends to protect the public not only against improper acts by its members, but also against non-members who provide no assurance of competence, integrity, confidentiality or independence. The Code of ethics of advocates and the provisions relating to fees or defalcation of amounts of money and to the management of complaints by the committee on discipline apply only to members of the Barreau. That is why it is important to deter others from performing acts that are reserved for advocates, by applying penalties. In this case, the respondents admit that they used the services of Mr. Yvon Descôteaux, a person who is not a member of the Barreau, for preparing and drawing up their proceedings. What therefore are the consequences for the parties of their having done this?
2. Penalties Applicable to Contraventions of the Act respecting le Barreau du Québec
19 A person who contravenes the mandatory provisions of s. 128 A.B. is liable, first, to criminal penalties. Division XIV of the Act respecting the Barreau du Québec contains various provisions prohibiting the illegal practice of the profession of advocate (ss. 132 to 140 A.B.). Under s. 132 A.B., whoever practises the profession of advocate without being entered on the Roll of the Order is guilty of an offence and is liable to the penalties provided in s. 188 P.C., which consist of a fine of not less than $600 nor more than $6 000. Although these remedies are still available and have been regularly used by the Bar in the past against the Club juridique and its mandatary, that is not the subject of this case.
20 Furthermore, a penalty may also be imposed in respect of an agreement made in contravention of the Act respecting the Barreau du Québec by applying civil law principles. The respondents and the Club juridique, represented by Mr. Descôteaux, entered into a contract for the provision by a non‑advocate of a service consisting of preparing and drawing up legal proceedings for remuneration, in the form of an annual membership fee. That contract, like all other contracts, is governed by the mandatory general provisions relating to the conditions of its formation set out in the Civil Code of Québec: arts. 1385 to 1415. Specifically, art. 1411 C.C.Q. provides that the cause of a contract must not be prohibited by law or contrary to public order.
21 Public order consists of certain social prohibitions restricting the contractual freedom of the parties. Those prohibitions point to the fact that there are general interests that go beyond individual interests and that the parties must respect (art. 9 C.C.Q.). The test for distinguishing between laws of public order and other types of laws is to be found in the fact that the legislature is concerned with the public, as opposed to merely private, interest. I share the opinion of the Court of Appeal that the provisions of the Act respecting the Barreau du Québec relating to the practice of the profession of advocate are provisions of public order, in that they are designed to protect the general interest. Academic opinion is unanimous in this regard. In their textbook on obligations, Justice Baudouin and Professor Jobin are of the view that the laws organizing professional corporations are in the nature of political and moral or directive public order (as opposed to economic or protective public order), in the same way as the laws relating to the administration of justice, the organization of government, administrative and fiscal legislation and penal statutes. They all have a common purpose: to protect [translation] “all the institutions that form the basis of the rules of the game in society”: J.-L. Baudouin and P.-G. Jobin, Les obligations (5th ed. 1998), at p. 157, No. 133. (See also J. Pineau, D. Burman and S. Gaudet, Théorie des obligations (3rd ed. 1996), at p. 255, No. 165, and D. Lluelles, with B. Moore, Droit québécois des obligations (1998), vol. 1, at pp. 663-64, Nos. 2028 to 2030).
22 The courts have also considered this issue. In Pauzé v. Gauvin, [1954] S.C.R. 15, at p. 19, this Court said that the Architects’ Act, R.S.Q. 1941, c. 272, was enacted to protect the general interest and ensure that truly skilled professionals are made available to the public so that buildings are properly constructed. That position was reiterated in Garcia Transport Ltée v. Royal Trust Co., [1992] 2 S.C.R. 499. At p. 524, L’Heureux‑Dubé J., for the Court, noted that the courts have consistently held that laws establishing professional standards are of public order, even though, in one aspect, they protect a limited group within society. In re Réserves du Nord (1973) Ltée: Biega v. Druker, [1982] C.A. 181, deals more specifically with the provisions of the Act respecting the Barreau du Québec. In that case, L’Heureux‑Dubé J.A., as she then was, held that an agreement made in contravention of s. 56 A.B., which prohibited an advocate from acting for a trustee in bankruptcy if in the two years prior to the bankruptcy he had represented the debtor, in order to avoid conflicts of interest, was invalid. At p. 191, she said:
[translation] The Act respecting the Barreau du Québec, including the regulations made thereunder (s. 22), which were enacted for the purpose of protecting the public, contain mandatory and prohibitive provisions and also penalties (s. 48). The exclusive practice of a profession is a matter of public order. Subsequently, the Architects’ Act and the Civil Engineers’ Act have on many occasions been considered to be statutes of public order, as being for the protection of the public Pauzé v. Gauvin. . . .
23 Any agreement whose cause contravenes s. 128(1)(b) A.B. is therefore contrary to public order. Pursuant to art. 1416 C.C.Q., any contract which does not meet the necessary conditions of its formation may be null. It is absolutely null where the condition of formation sanctioned by its nullity is necessary for the protection of the general interest (art. 1417 C.C.Q.); it is relatively null where the condition of formation sanctioned by its nullity is necessary for the protection of an individual interest (art. 1419 C.C.Q.). In view of the imperatives associated with protection of the public to which the Act respecting the Barreau du Québec responds, and to which I referred earlier, the provisions of that Act relating to the performance of exclusive acts could only have been enacted for the purpose of protecting the general interest. Therefore, a contract which contravenes that Act must be sanctioned by absolute nullity.
24 The appellant argues that in the event of nullity, whether relative or absolute, the contract is deemed never to have existed and the parties are bound to restore to each other the prestations they have received. In its view, it therefore necessarily follows that the proceedings resulting from a null contract must be restored to the Club juridique, thus preventing the respondents from using them before a court to exercise their rights. Accordingly, the main question that this Court must now answer is whether the nullity of this contract affects the validity of the resulting proceedings.
B. The Effects of the Nullity or Validity of the Proceedings Resulting from a Null Contract
25 As the maxim holds, “Quod nullum est, nullum producit effectum”: what is void is of no effect. However, reality is often much more complex. We must therefore assess what this nullity means in time and space. First, a null contract produces no legal effects for the future. Furthermore, its past effects are erased, since the contract is deemed never to have existed, and the parties to the agreement must be restored to the condition in which they were before they entered into the agreement, pursuant to the principles of restitution of prestations set out in the Civil Code of Québec (arts. 1422 and 1699 et seq.).
26 Second, the question of what this nullity means may also be considered in terms of extent or space. It is then a matter of determining whether a juridical act will be null in whole or only in part (partial or complete nullity), or whether the nullity of the juridical act will have an impact on the fate of other juridical acts (simple or extended nullity): Y. Picod, Rép. civ. Dalloz, t. VII, “Nullité”, at paras. 93 to 102. Before applying these concepts to this case, we need to examine the definition of the object of the parties’ reciprocal obligations.
1. Object of the Obligations
27 The Civil Code of Québec, reiterating what we have been told by the learned French and Quebec authors, indicates that there is a distinction between the object of the obligation, which is the prestation that the debtor is bound to render to the creditor and which consists in doing or not doing something (art. 1373 C.C.Q.), and the object of the contract, which refers to the juridical operation envisaged by the parties as a whole and not in terms of each of its elements (art. 1412 C.C.Q.). The simplicity of the contract made by the parties in this case may occasionally create the impression that these two concepts overlap and become the same thing. However, it is appropriate to distinguish them.
28 The object of the obligation contracted by Mr. Descôteaux and the Club juridique is the provision of a service involving preparing and drawing up proceedings. In other words, they agreed, in exchange for financial consideration (the obligation contracted by the respondents), to provide the respondents with a certain quantity of advice and knowledge regarding the drawing up of proceedings. The analogy between this and a contract of employment is worth noting. By entering into a contract of employment, an employee undertakes for a limited period to do work for remuneration, according to the instructions of another person (art. 2085 C.C.Q.). The object of the employee’s obligation is therefore the provision of labour and not the result of that labour. Similarly, the proceeding, as such, is merely the tangible expression of the knowledge that was transmitted to the respondents. It is the product of the service rendered by the Club juridique.
29 The proceeding filed by the respondents is in fact a distinct juridical act. [translation] “The fact that a proceeding is a juridical act is not debated and is not really debatable”: J. Héron, “Réflexions sur l’acte juridique et le contrat à partir du droit judiciaire privé” (1988), 7 Droits 85. While there may be fine academic distinctions regarding the definition of a juridical act, any legal proceeding is a unilateral juridical act, since it is the expression of the will of the person who created it and of that person’s desire for certain legal effects to be produced. See J. Martin de la Moutte, L’acte juridique unilatéral: essai sur sa notion et sa technique en droit civil (1951); B. Moore, “De l’acte et du fait juridique ou d’un critère de distinction incertain” (1997), 31 R.J.T. 276; Baudouin and Jobin, supra, Nos. 40-41; Private Law Dictionary and Bilingual Lexicons (2nd ed. 1991), “juridical act”.
30 This juridical act may be distinguished from the agreement made between the parties in a number of respects. First, it is signed by the litigant and expresses that person’s sole intention of exercising his rights, and is not the result of a bilateral agreement. Since it is a judicial act, it also does not have the essentially private nature of a contract, and it has a public dimension once it is presented to the court. Lastly, it may be distinguished from the agreement for drawing up the legal proceeding, in that its specific object is the representation of the litigant’s rights before the courts. On this point, it is worth noting that the respondents not only personally signed their proceedings and had them stamped and filed in the Superior Court, but also represented themselves before the court. The Act in fact makes this distinction between preparing and drawing up proceedings and representation before the courts, which is done, inter alia, by presenting juridical acts such as these.
31 In Quebec, as I noted earlier, preparing and drawing up proceedings for others are the exclusive prerogative of the practising advocate (or solicitor) under to s. 128(1)(b) A.B. A legal proceeding may therefore be prepared and drawn up by a person who is representing himself before the courts and who may do so on his own behalf pursuant to art. 61 C.C.P.
32 Representation before the court amounts to a second step. At that stage, the proceeding is no longer merely meant for use before the courts, but is in fact presented to the courts. This second step is also governed by various legal provisions. For example, s. 128(1)(b) A.B. has no application to representation. At that stage, arts. 61 and 62 C.C.P. and s. 128(2) A.B. come into play. Section 128(2) A.B. provides that to plead or act before any tribunal, when performed for others, is the exclusive prerogative of the advocate (except before certain listed tribunals). Article 62 C.C.P. confirms that the right to act as attorney before the courts is reserved exclusively to advocates: Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 142 D.L.R. (3d) 512, [1982] C.S. 1146 (Deschênes C.J.). Article 61 C.C.P. may also apply. Under that article, a person representing himself may present the necessary proceedings to exercise his rights and remedies. Representation includes both written and oral submissions. Therefore, a person who represents himself may also submit proceedings in the form of written pleadings.
33 Accordingly, the object of the obligation of Mr. Descôteaux and the Club juridique is limited to preparing and drawing up proceedings, and the proceeding presented to the court is a separate juridical act performed by the respondents as litigants representing themselves in accordance with art. 61 C.C.P. Having clearly defined the object of the parties’ obligations, I shall now determine the extent of the nullity of the agreement for the preparation of the proceedings.
2. Partial or Complete Nullity
34 In this case, the Court of Appeal held that the agreement between the parties was absolutely null, but the nullity might be only partial. While the court did not rely directly on art. 1438 C.C.Q., it found there to be some analogy with that article. Under that provision, a clause which is null does not render the contract invalid in other respects, unless it is apparent that the contract may be considered only as an indivisible whole. A contract will found to be indivisible when the invalid clause was an essential element of the contract under the objective meaning of the contract or the meaning intended by the contracting parties.
35 Pauzé v. Gauvin, supra, is an example case in which partial nullity was applied by this Court. In that case, the respondent, who was a civil engineer and a member in good standing of the Corporation of Professional Engineers of Québec, claimed the value and price of the professional services he had rendered to the appellant: preparing plans and specifications and supervising the erection of a building. The appellant refused to pay on the ground that the agreement between the parties was null because it was contrary to s. 12 of the Architects’ Act which provides that plans or specifications may only be furnished by architects. Taschereau J., for the majority, held that the contract was based on unlawful consideration and contrary to public order. However, the nullity should apply only to the preparation of the plans and specifications for compensation and not to the supervision of the work, since those were two independent and different functions, one of which was reserved for architects, and the other of which could also be performed by another person. The Court was therefore of the opinion that what had to be done was to limit the contract, which contained two clauses, to its lawful portion, rather than to uphold or nullify the entire contract. The part relating to the supervision of the work could therefore be the subject of an action for performance, while the part relating to the plans and specifications was null.
36 This situation has now been incorporated into the Civil Code of Québec by art. 1438. In his doctoral thesis, Professor Simler explains that true partial nullity consists solely of deleting a clause or material part of a particular juridical act from that act, without doing away with the entire act: P. Simler, La nullité partielle des actes juridiques (1969), at pp. 7‑8. See also D. Veaux, “Contrats et obligations — Nullité ou rescision des conventions”, Juris-Cl. civil, arts. 1304 to 1314, Fasc. 50, No. 84.
37 It is my view that art. 1438 C.C.Q. has no application in this case. What we have here is not a contract with a number of distinct objects; there is only one object: the provision of a service by Mr. Descôteaux and the Club juridique to the respondents in consideration for payment of an annual membership fee. Rather, the contract between them is null in its entirety, and as a result the agreement as a whole is null. If the proceedings that were produced as a result of this null act are to stand, it will not be by application of the concept of partial nullity, but because of the principle of simple nullity, which holds that the nullity of a contract has no impact on the fate of other contracts or juridical acts.
3. Simple or Extended Nullity
38 As a rule, the nullity of an act cannot extend to other distinct juridical acts: H., L. and J. Mazeaud and F. Chabas, Leçons de droit civil, t. II, vol. 1, Obligations -- théorie générale (9th ed. 1998), at para. 329‑2; Picod, supra, at paras. 99 to 102. However, an act may by its nature be incidental to another, or they may be genuinely interdependent, in which case the nullity of one results in the nullity of the other. This doctrine of the accessory applies to security interests, for example. The nullity of the principal contract may also extend to the credit contract used to finance it. This is the case in Quebec under s. 116 of the Consumer Protection Act, R.S.Q., c. P-40.1, which provides that a consumer who has used the net capital of a contract for the loan of money to make full or partial payment for the purchase or the lease of goods or services may, if the money lender and the vending or leasing merchant regularly work together with a view to the granting of loans of money to consumers, plead against the money lender any ground of defence that he may urge against the vending or leasing merchant. (See the French equivalent: art. L. 311‑21 of the Code de la consommation; and the following decisions of the Cour de cassation: Cass. civ. 1re, December 16, 1992, Bull. civ. X, No. 316, and Cass. civ. 2e, March 11, 1992, Bull. civ. III, No. 79.) However, other than in specific legislation so providing, extended nullity occurs only exceptionally. It applies to other juridical acts only when the two acts are closely connected and were made by the same parties for a common purpose.
39 The Supreme Court has only rarely considered this principle. In Pauzé v. Gauvin, supra, it declined to apply the principle of extended nullity, which it regarded as part of the theory of the accessory, and instead applied partial nullity. In so doing, however, it confirmed the existence of the principle in Quebec law. At p. 20 of his reasons, Taschereau J., for the majority, stated:
[translation] The appellant submits, on the other hand, that the supervision of the work is incidental to the contract for the preparation of the plans, and that the nullity associated with the latter also vitiates the former. I cannot accept that argument. There is no doubt that in certain cases the nullity of the principal contract, which exists in isolation and on its own, results in the nullity of the accessory contract which can exist only if it is connected with the principal contract. This is the case with a pledge, suretyship or hypothec that is attached to a loan agreement: accessorium sequitur principale. (Planiol and Ripert, Vol. 6, No. 44; Mignault, Vol. 5, pp. 187‑88; Pothier, No. 14.) [Emphasis added.]
40 Although it mistakenly relied on the concept of partial nullity, the Court of Appeal in this case was also of the opinion that the courts had sometimes declined to extend the nullity of a contract to other incidental juridical operations when those operations were not closely connected to the contract. In fact, the nullity of the agreement between the parties in the instant case, the object of which was the preparing and drawing up of proceedings, does not necessarily have an impact on the validity of the proceeding presented to the court by the respondents, which was a distinct juridical act. The parties to the two juridical acts are not identical; the proceeding is a unilateral juridical act of the litigant, and it may be distinguished by this fact from the agreement, which is a meeting of minds. In addition, as I noted earlier, while the agreement is an exclusively private matter, subject to the requirements of public order, the juridical act takes on a particular public dimension when it is filed with the court. Lastly, while the purpose of the proceeding is to enable the litigant to exercise his or her rights at the representation stage, the agreement comes into play only at the initial preparation stage.
41 Applying the principle of simple nullity of the agreement for drawing up legal proceedings in civil law is perfectly consistent with the intent expressed by the Quebec legislature when it enacted art. 61 C.C.P. Article 61 is an integral part of a statute enacted to regulate the proper administration of justice in Quebec. It is found in Book I, Title III of the Code, which contains a set of fundamental rules that apply to all legal actions; these include rules concerning the interest, quality and capacity that the parties must have in order to bring an action, and various provisions that apply to the attorneys who may represent them. Article 61 provides that a party may represent himself: “No one is required to be represented by attorney before the courts” (emphasis added). It is therefore only exceptionally that a person must use the services of an attorney: for instance, where that person is a legal person, an association or a partnership. Article 61 most certainly establishes a right of access to the courts for all litigants who have the characteristics necessary for that purpose.
42 A provision of this kind cannot be rendered ineffective by the provisions of the Act respecting the Barreau du Québec, no matter how prohibitive they may be. They should rather be regarded as part of the framework provided by the Code of Civil Procedure, and interpreted in such a way as to allow art. 61 to retain its meaning and effect. A litigant therefore cannot be prevented from exercising his rights on the ground that he has obtained the assistance of a person who is not a member of the Barreau; it would be a grave restriction on the ability of a litigant to exercise his right to represent himself, for which the legislature has made provision in the Code of Civil Procedure, if that were the case.
43 In that regard, in a working paper prepared for the Minister of Justice in February 2000, the committee that had been established to review civil procedure in Quebec also stressed the importance of facilitating access to the courts by litigants representing themselves pursuant to art. 61. In the opinion of the committee, the right to be a party to an action without being represented requires for its implementation that members of the public have access to the appropriate resources to enable them to act for themselves: Quebec Department of Justice, La révision de la procédure civile, Document de consultation du comité de révision de la procédure civile, February 2000, at p. 11.
44 I also note that in the relevant legislation the legislature has not provided any penalty for a litigant who obtains the assistance of another person for drawing up and preparing his legal proceedings, although it has expressly done so on other occasions, for instance where a litigant has received advice from a disqualified person. Section 123(2) A.B. provides that a judicial proceeding taken (that is, drawn up, prepared or signed, but also presented to the court) by a disqualified person (defined in s. 122 as an advocate who holds an incompatible position or office, is provided with a tutor or assigns his property) for another person shall be invalidated by the court if the client so requests or if it is established that the client was aware of such disqualification. No such penalty is provided, in the Act respecting the Barreau du Québec or in other statutes, in respect of proceedings drawn up for others by anyone other than a disqualified person, which proceedings are in a way the fruit of a null contract, even if the litigant who made the contract was acting with full knowledge. This is especially true in the case of a juridical act by the litigant himself, that is, one which is signed by that person and filed for his own purposes.
45 Thus, while it is clearly illegal for a person who is not a member of the Barreau to practise the profession of advocate or to perform any of the acts reserved for advocates, the respondents cannot be reproached for exercising their rights on the same basis as any other litigant. The main reason for the existence of the Act respecting the Barreau du Québec and its various regulatory provisions is to protect the public from persons who are not entered on the Roll of the Order who claim to be capable of providing good quality services. It is therefore hardly surprising that the Act does not impose penalties on litigants and aims rather to punish persons who are not members of the Barreau who perform acts reserved for advocates. In the absence of an express legislative provision, a litigant who makes the mistake of using the services of such persons cannot be penalized. In Millette v. 2862‑2678 Québec Inc., Sup. Ct. Laval, No. 540-05-002176-968, November 27, 1996, Bergeron J. stated a similar view at p. 3:
[translation] Once again, as I said earlier in discussion, or during the argument, I find it hard to believe that a Court could penalize an applicant, whether or not acting in good faith, who has obtained assistance to draw up his proceedings from someone who does not have the right under the Act respecting the Barreau du Québec to do so. Otherwise, I have noted some examples, an action that was brought a few days before the prescription date could be dismissed, thereby depriving a litigant of a potentially valid remedy because he made the mistake of consulting the Club juridique or a certain Mr. Descôteaux.
I do not think that any section of the Act respecting the Barreau du Québec provides that documents prepared by persons who are not eligible to do so affect the proceeding to the point that the action must be dismissed or, as in the cases referred to earlier, that the applications must be dismissed.
46 In another case identical to the one that is the subject of this appeal, Dubé v. Beaulieu, C.Q. Beauharnois, No. 760-22-000024-979, June 25, 1997, Judge Boyer of the Court of Québec aptly summarized the spirit of my remarks. In that case, the applicant had made a motion to dismiss the defence on the ground that it had been drawn up by the mandatary of the Club juridique. Judge Boyer was of the opinion that the contract of mandate the parties had entered into for drawing up the proceedings was absolutely null because it was contrary to public order. However, the nullity of the contract had no impact on the fate of the proceedings filed with the court. Furthermore, no right or remedy should be taken away from a litigant who has consulted a person who is not a member of the Bar. At pp. 5‑6 of his judgment, he said the following:
[translation] This principle [public order] having been recognized, the Court believes, however, that a distinction must be made in this case between an illegal contract of mandate ad litem and the pleading itself, which is a juridical act resulting from an illegal act. It is difficult to imagine that the Court could not strip all legal effect from the mandate ad litem which contravenes political public order or directive public order, in other words the general interest. The Court must in fact raise the issue ex officio where the parties do not and prevent the offender from continuing to act.
On the other hand, the pleading itself is the result of an illegal act: the preparation of a proceeding. This is an act for which the offender may indeed deserve to be penalized, but it cannot be annulled. The court believes, as Anthime Bergeron J. of the Superior Court said in his decision, striking the defence from the record would have the effect of penalizing the defendant rather than protecting her as a member of the public. The prohibitive aspects of the Act respecting the Barreau du Québec and the Professional Code are aimed at penalizing the illegal practice of a profession rather than punishing the offender’s clientele.
47 In conclusion, I am therefore of the opinion that the nullity of the agreement for drawing up the proceedings cannot affect the validity of the proceedings presented to the court in a legal action. The proceedings are not only a separate juridical act by the litigant himself, but also the tangible expression of that person’s right to represent himself in matters relating to the administration of justice, as provided by the Code of Civil Procedure.
4. Access to Justice
48 In concluding, I would like to add a few words regarding access to justice. This very important principle was central to the respondents’ argument before this Court and in the lower courts. In their view, dismissing the proceedings on the ground that they were drawn up with the assistance of the Club juridique infringes their right of access to the justice system. There is no doubt that what art. 61 C.C.P. does, inter alia, is to recognize the situation of certain litigants who are too well off to qualify for public legal assistance but not well enough off to pay for the services of an advocate. Often, the option of consulting an advocate is not available to them. Article 61 enables them to represent themselves and to present the proceedings that are needed in order for them to be able to exercise their rights and remedies. Recognition of that reality must not, however, be confused with access to justice. It is a mistake to believe that access to justice in Canada is furthered by allowing people to use proceedings prepared or drawn up by persons who are not members of the Barreau, or persons who have been struck off the Roll as a result of a breach of professional standards, and who claim to be capable of providing good quality service. On the contrary, it may often be adverse to litigants’ own interests to exercise that freedom.
49 Accordingly, the essential role that the advocate is called upon to play in our society cannot be overemphasized. Advocates are officers of the court. By their oath of office, they solemnly affirm that they will fulfill the duties of their profession with honesty, integrity and justice and will comply with the various statutory provisions governing the practice of that profession, to which I referred extensively in the first part of these reasons. Section 2 A.B. is the statutory expression of the public function performed by advocates before the courts. Pursuant to s. 2.06 of their Code of ethics of advocates, advocates have a duty to serve justice and to uphold the authority of the courts. They must therefore perform their professional obligations with integrity and preserve the impartiality and independence of the court. See Quebec Department of Justice, supra, p. 16, “L’avocat”, and Canadian Bar Association, Code of Professional Conduct (1988), ch. XIII, “The Lawyer and the Administration of Justice”, p. 59.
50 In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 187‑88, McIntyre J. explained the importance of the function performed by advocates in relation to the courts as follows:
It is incontestable that the legal profession plays a very significant — in fact, a fundamentally important — role in the administration of justice, both in the criminal and the civil law. I would not attempt to answer the question arising from the judgments below as to whether the function of the profession may be termed judicial or quasi-judicial, but I would observe that in the absence of an independent legal profession, skilled and qualified to play its part in the administration of justice and the judicial process, the whole legal system would be in a parlous state. In the performance of what may be called his private function, that is, in advising on legal matters and in representing clients before the courts and other tribunals, the lawyer is accorded great powers not permitted to other professionals. . . . By any standard, these powers and duties are vital to the maintenance of order in our society and the due administration of the law in the interest of the whole community.
51 In the collective imagination, the advocate therefore embodies, first and foremost, the trial lawyer who defends his client’s rights. He embodies the defence of liberty and is the custodian of the secrets of the law and procedure that enable him to win his cases. This function, which is referred to as judicial, does indeed represent part of the work of certain advocates, but it is by no means the only or the most important work they do. In fact, the judicial function is in a way merely [translation] “incidental to the legal function”. This aspect of the advocate’s function, which is public and more flamboyant, has simply overshadowed his primary legal function: J.-C. Woog, Pratique professionnelle de l’avocat (3rd ed. 1993), at p. 8.
52 In a book that presents various points of view regarding the professional ethics of the legal profession, some authors suggest a fuller moral conception of the “responsible lawyer”. This approach suggests that apart from the adversarial role that may have been assigned to the advocate, he is a person who performs various counselling functions in the best interests of his client, his profession and the administration of justice in general: D. E. Buckingham, J. E. Bickenbach, R. Bronaugh and the Honourable Bertha Wilson, Legal Ethics in Canada — Theory and Practice (1996), foreword by the Honourable Mr. Justice Frank Iacobucci. At pp. 97 and 143, they write:
Popular culture has gone a long way in convincing us that legal work is what happens in the courtroom, specifically the criminal courtroom. . . . This type of confrontation between two parties, each with a trained advocate pressing his or her claim, is the typical manifestation of what is often called the adversarial system of law. . . .
. . .
[We should] expand the traditional paradigm to one that is consistent with and allows for a fuller moral conception of what it means to be a lawyer and a person. . . . The “role” of the lawyer is actually many roles in one -- several professional and several personal roles. . . .
Every lawyer functions in several personal roles apart from the role of being a lawyer. These roles make us, at one time or another, child, spouse, mother or father, friend, leader, and citizen. In addition, as lawyers, the professional role makes us, often in the course of a day, adviser to a client, advocate for a client in court, lobbyist, negotiator, employer or employee, or partner.
53 Thus, contrary to popular belief, not only will a good advocate not foment dissension and promote disputes between parties, he will seek to reconcile opposing interests in order to avoid the ultimate confrontation of a trial. He will be called on to play the role of moderator, negotiator and conciliator. Indeed, it is his duty to facilitate a rapid solution to disputes and to avoid fruitless or frivolous actions: ss. 2.02, 2.05 and 3.02.11 of the Code of ethics of advocates, and Canadian Bar Association, supra, ch. IX, “The Lawyer as Advocate”, p. 35. Thus, whenever it is appropriate to do so, the advocate must discuss alternative dispute resolution methods (mediation, conciliation and arbitration) with his client, and must properly advise the client regarding the benefits of settling disputes. He may also hold discussions with the opposing party and negotiate a resolution of the dispute between the parties: Barreau du Québec, Collection de droit 1999‑2000, vol. 1, Barreau et pratique professionnelle, ch. X, “Les devoirs envers l’administration de la justice”, by P.‑G. Guimont, at pp. 97‑110. See also P. B. Heymann and L. Liebman, The Social Responsibilities of Lawyers: Case Studies (1988); G. MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline (loose-leaf), vol. 1.
54 Thus, while it is highly commendable to promote access to justice, and while it is true that providing litigants with the option of representing themselves and presenting the proceedings they consider appropriate reflects recognition of litigants’ free agency and is to some extent an appropriate approach to take, it cannot be said that it is an end in itself. Every day, the courts across Canada contribute to some degree to enhancing access to justice. For example, they ensure that constitutional guarantees, including the right to the assistance of an interpreter and the right to use the official language of one’s choice in proceedings before them, are enforced. The registrars of those courts also provide litigants with invaluable technical assistance, and judges persons who are not represented by advocates with direction and guidance in exercising their rights. In no respect, however, can they replace an advocate. As an officer of the court, the advocate plays an essential role in our justice system, in representing the rights of litigants before the courts, but also at the preceding stage of settling disputes. It would therefore be desirable for all litigants to be able to retain the services of an advocate, irrespective of their financial situation.
VI. Disposition
55 For the foregoing reasons, the appeal is dismissed, the appellant being ordered to reimburse to the respondents their disbursements throughout.
Appeal dismissed.
Solicitors for the appellant: Flynn, Rivard, Montréal.
Solicitors for the mis en cause Chrétien: Warren & Ouellet, Thedford-Mines.