A Not-so-Lux Dispute
The parties in the appeal in Lux v Lux, 2021 ABCA 413, were engaged in an acrimonious matrimonial property dispute. Their dispute was such that it had already brought them to the Court of Appeal of Alberta (ABCA) once before (Lux v Lux, 2019 ABCA 454) and even involved a rejected application for leave to appeal to the Supreme Court of Canada (Lilian Lux v Erwin Albert Lux, 2020 CanLII 100525 (SCC)). This time was slightly different in that, less than two months before the latest appeal hearing, the respondent died.
Given the latest technicality, the positions of the parties changed. The respondent’s executor and one of his beneficiaries agreed to make the beneficiary the litigation representative of the estate for the appeal. However, the appellant objected to the arrangement on the grounds that she thought an estate’s litigation representative had to be a lawyer (the appellant was self-represented). The appellant also wanted to discontinue the appeal for mootness now that the respondent had passed. The respondent’s estate replied that if the appeal should continue, it wanted the appellant to post security for costs.
Concerning the estate’s litigation representative, the three-justice panel of the ABCA noted the relevant rules in the AlbertaRules of Court (the Rules). Rule 2.15(2) gives courts the discretionary authority to appoint a person as a litigation representative of an estate. Rule 2.11(e) requires an estate in a dispute to have a litigation representative where no personal representative has obtained a grant of probate or administration. Neither rule requires the litigation representative to be a lawyer, so the ABCA appointed the estate’s choice of litigation representative for the appeal.
It is possible that the appellant got the concept of a litigation representative, which is the person who speaks for the party, confused with advocating for a party before a court, which is done by a lawyer. As mentioned, the Rules require the former for an estate. The Legal Profession Act, RSA 2000, c L-8, prohibits anyone but lawyers from doing the latter on behalf of someone else. The ABCA previously found in Chapman Estate v Ramjohn, 2015 ABCA 58, that the Act as written requires estates to be represented by lawyers before court as well.
Concerning the continuation of the appeal, the fact that the respondent died did not affect the appeal. The ABCA found the issues before it were not moot and would be heard on their merits. To save costs, and therefore requiring security for costs, the ABCA proposed dealing with the rest of the appeal through written submissions. If the appellant requested another oral hearing, she would have to provide security.
