Burry v. Eastern Regional Integrated Health Authority

Date: 20100309 Docket: 09/59 Citation: 2010 NLCA 18 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: TERRY W. BURRY AND MARTHA RAE BURRY AND MARK A. BURRY INTENDED APPELLANTS AND: EASTERN REGIONAL INTEGRATED HEALTH AUTHORITY (ERIHA) RESPONDENT Coram: Roberts, Mercer and White, JJ.A. Application Heard: March 9, 2010 Decision Rendered: March 9, 2010 (Orally) Memorandum of Disposition Filed: March 12, 2010 Terry W. Burry and Martha Rae Burry: Self represented Counsel for the Respondent: Paul McDonald Page: 2 MEMORANDUM OF DISPOSITION Roberts, J.A.: [1] This is an application by the Respondent (Eastern Health) for an order to strike out the Intended Appellants’ (the Burrys) Application for Leave to Appeal filed on July 7, 2009 or, alternately, to refuse leave. [2] The Application for Leave was filed by Mr. Terry Burry, purportedly on behalf of all the Intended Applicants, requesting this Court to hear an appeal from a decision of the Honourable Justice Alphonse Faour dated July 25, 2009 in matter 2006 01 T4501. The Order of Justice Faour was in response to an Interlocutory Application (Inter Partes) filed on behalf of Eastern Health, invoking rule 5.07 of the Rules of the Supreme Court of Newfoundland and Labrador, 1986 and seeking the following relief: (i) That the within proceeding be stayed until Martha Rae Burry and Mark A. Burry confirm in writing to the Court and to the solicitors for Eastern Health that each of them will be representing themselves in person, with a stated address for service for each; or, alternately (ii) That the within proceeding be stayed until it is confirmed in writing to this Honourable Court and to the solicitors for Eastern Health, by a solicitor, that the Burrys are being represented by a solicitor. [3] Rule 5.07 states as follows: (1) Any person, whether or not that person sues as a Trustee or personal representative or in any other representative capacity, may commence, carry on or defend a proceeding in the Court by a solicitor or in person. (2) A body corporate may not commence, carry on or defend a proceeding otherwise than by a solicitor. The rule does not expressly permit an individual to commence, carry on or defend a proceeding in court on behalf of another person. [4] Justice Faour dismissed the application of Eastern Health and granted the Burrys leave to amend their Reply to Demand for Particulars dated December 12, 2007 in order to confirm that each of the Burrys was representing himself or herself and to provide addresses for service. [5] The original Reply to Demand for Particulars stated: Page: 3 1. The Plaintiff, Terry W. Burry, is self represented. 2. The Plaintiff, Martha Rae Burry, is represented by Terry W. Burry. 3. The Plaintiff, Mark A. Burry, is represented by Terry W. Burry. [6] The amendment to the Reply to Demand for Particulars was not made by the Burrys, as Mr. Terry Burry had indicated to Justice Faour would be done, and up to the time of Eastern Health’s current application to strike or to refuse leave was filed on February 23, 2010, no action had been taken by the Burrys to have their Application for Leave set down for hearing. [7] The Court heard from Eastern Health and from Mr. Terry Burry. The Court explained to Mr. Burry that what he was seeking to raise on appeal, i.e., his right to represent his wife and son, was not the subject of Justice Faour’s Order. Justice Faour did not in fact deny Mr. Burry the right to represent his wife and son; he merely gave him leave, following discussion with him and noting his apparent consent, to amend his pleadings to reflect self-representation for all three plaintiffs. The issue of representation of Martha Burry and Mark Burry will only be engaged if Mr. Burry continues to refuse to amend his pleadings in accord with the leave that was granted and Eastern Health were to make a further application in the Trial Division challenging Mr. Burry’s right to represent his wife and son. Consequently, there could be no appeal at this time on that issue. [8] The Court, in those circumstances, struck the Notice of Application for Leave to Appeal and awarded taxed costs on the Application to Eastern Health. [9] We would also note in passing that although rule 5.07(2) specifically prohibits a corporation from being represented by someone other than a solicitor, it is silent on the issue of whether an individual could be represented by someone other than a solicitor. Section 76 of the Law Society Act, 1999, SNL 1999, c. L-9.1, may, nevertheless, have relevance to that issue. The implications of rule 5.07 and s. 76 were not engaged on the current application and it would be inappropriate to express an opinion thereon at this time. _______________________________ D. M. Roberts, J.A.