Appeals arise from claims alleging lawyer negligence and improper conduct while defending a lawyer
The Alberta Court of Appeal has ordered a disbarred lawyer and his son to each provide $48,850 as security for costs of two appeals on the basis that they admitted they were impecunious and their appeals were weak.
The appellants in the present case were the ex-lawyer and his son. After a Law Society of Alberta hearing committee ordered disbarment in July 2016, the ex-lawyer did not exercise his rights under Alberta’s Legal Profession Act, 2000, to appeal the order to the law society’s benchers.
In August 2016, the appellants brought an action against the law society in the then Court of Queen’s Bench of Alberta. They claimed the disbarment was void. They requested the ex-lawyer’s reinstatement as a law society member in good standing and damages for alleged breaches of ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms and common law rights.
The law society successfully applied to strike the proceeding for failure to disclose a cause of action under r. 3.68 of the Alberta Rules of Court, Alta Reg 124/2010. In August 2019, a Court of Queen’s Bench judge dismissed the appellants’ appeal of the order striking their action.
In October 2019, the appellants filed a civil notice of appeal. The registry struck their appeal for failure to file the appeal record within the one-month deadline. Over five months later, the appellants applied to restore their struck appeal.
In Ouellette, et al v Law Society of Alberta, 2021 ABCA 99, an appeal court justice dismissed their application to restore the appeal. The appellants applied for permission to appeal the denial of their application to extend their deadline to appeal and restore their struck appeal. In Ouellette et al v Law Society of Alberta, 2021 ABCA 283, the same appeal court justice dismissed their application.
The proceedings leading to the two appeals that were the subject of the present case involved two sets of defendants. The ex-lawyer filed an action alleging lawyers’ negligence against the first set of defendants and noted them in default.
An application judge set aside this noting in default as a matter of right upon finding a procedural flaw, triable issue, and arguable defence. A chambers judge dismissed an appeal of the application judge’s decision. The first appeal involved in the present case challenged the chambers judge’s decision.
The appellants also filed an action alleging that the second set of defendants acted improperly while defending the lawyer who had complained to the law society about the ex-lawyer.
Both sets of defendants applied for security for costs. An application judge ordered the appellants to post $50,000 in security for costs in the actions against both sets of defendants. The appellants’ appeal of this order did not succeed due to a failure to prosecute.
The appellants failed to post security for costs. Thus, a court order dismissed the ex-lawyer’s action against the first set of defendants and his and his son’s actions against the second set of defendants. The second appeal involved in the present case challenged this dismissal.
Both sets of defendants applied for security for costs in the two appeals. In Ouellette v Der, 2025 ABCA 140, the Court of Appeal of Alberta granted this application. The appeal court found it just and reasonable to order the appellants to post security for costs of the appeals. Otherwise, the appeal court would consider the appeals abandoned under r. 14.67(2) of the Rules of Court.
The appeal court deemed the merits weak in the first appeal involving the first set of defendants. The appeal court deferred to the decisions of the application judge and chambers judge, who comprehensively examined the merits.
The appeal court concluded it was difficult or even impossible to think of any evidence or argument that could displace both judges’ finding that the noting in default was improper.
In reaching this conclusion, the appeal court found that the ex-lawyer was already disbarred when he purported to act for his son, which went against s. 106(1) of the Legal Profession Act and r. 2.23(3)(a) of the Rules of Court. The appeal court added that the first set of defendants appeared to have an arguable defence to the ex-lawyer’s action because they were never his lawyers.
Regarding the second appeal, the appeal court considered how the appellants advanced this appeal and decided that the appellants were improperly attempting a collateral attack on unchallenged court orders.
Specifically, the appeal court found it procedurally questionable for the appellants to fail to appeal the orders dismissing the appeals for failure to prosecute and ordering security for costs and instead appeal the later order dismissing their appeal after they were unable to post security.
