Federal Court Of Canada Finds Parties May Not Appoint Co-Solicitors Of Record As Of Right

On November 9, 2021, the Federal Court of Canada (the Court) in Farmobile, LLC v Farmers Edge Inc., 2021 FC 1200, held that a party may not appoint co-solicitors of record as of right.

At the outset, Farmobile, LLC (Farmobile) was represented by four solicitors at one firm. Two of the solicitors later left to begin a new firm, which Farmobile sought to add as a second solicitor of record. Farmers Edge Inc. (Farmers Edge) opposed and brought a motion to strike out the Notice of Change and Appointment of Solicitor filed by Farmobile.

The Court found that the Federal Courts Rules (the Rules) do not allow a party to have multiple solicitors of record as of right. In addition, the Court cited Texaco Canada Ltd. v Bennett, 1980 CanLII 2703 (NS SC) at para 13, articulating the following general rule:

The authorities cited support the principle that, normally the plaintiff or plaintiffs should be represented on the record by one solicitor, who is responsible for initiating the procedural steps and to whom the defendant and other parties may deliver notices and documents and deal with otherwise in the course of the proceeding, as the person authorized to act for the plaintiff therein. If, for good reason, there is to be a departure from the norm, it should be by special order.

The Court stated that if the Rules were interpreted to permit a party to have co-solicitors of record as of right, “the mischief sought to be avoided by these well-established legal principles would be allowed to occur”. The Court concluded that leave is required to allow Farmobile to have co-solicitors of record and that the onus fell on Farmobile to establish that special circumstances exist to justify granting leave.

In determining whether special circumstances existed, the Court considered the issue that the transferring lawyers were not authorized to access confidential information under the terms of a protective agreement. Furthermore, the Court held that Farmers Edge would not be prejudiced by Farmobile having a second solicitor of record. The Court found no evidence of inconsistent positions, duplication of efforts, or evidence of Farmobile’s counsel's inability to co-operate. The Court therefore concluded that special circumstances existed in this case to justify granting leave to Farmobile to be represented by two solicitors of record.

Ultimately, the Court dismissed Farmers Edge’s motion, granted Farmobile leave to be represented by two solicitors of record, and ordered that Farmers Edge only be required to obtain consent from either one (not both) of Farmobile’s solicitors of record regarding steps in the proceeding. The Court awarded no costs, as the motion raised a novel issue. 

Summary By: Steffi Tran