Fortin v. Chrétien

Fortin v. Chrétien
Collection
Supreme Court Judgments
Date
2001-07-12
Neutral citation
2001 SCC 45
Report
[2001] 2 SCR 500
Case number
27152
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Civil procedure
Contract
Professional law
Notes
SCC Case Information: 27152
Decision Content
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 m