ordered">Introduction

Who is the client when a nonprofit organization becomes involved in litigation? The question appears elementary. Corporations, including nonprofit entities, are distinct legal persons; they act through authorized agents; and counsel is retained on the client’s behalf by those empowered to do so. Yet in practice—particularly at the intersection of criminal complaint-making and civil dispute—the identity of the “client,” the authority of the purported agent, and the status of the complainant are frequently conflated. The result is a recurring but under-examined problem: legal processes proceed on the appearance of institutional action without clear proof that the institution has, in fact, authorized that action.

Canadian doctrine is clear at a high level. A corporation is separate from its directors and officers, who owe duties to the corporation and act as its agents (see, e.g., Peoples Department Stores Inc (Trustee of) v Wise). Acts are attributable to the corporation only where performed by those with authority to bind it (Canadian Dredge & Dock Co v The Queen). At the same time, solicitor–client privilege protects communications between lawyer and client, but not the underlying facts of the relationship, including the identity of the client (Descôteaux v Mierzwinski; R v Campbell). These principles, taken together, suggest a straightforward inquiry: when legal action is initiated in the name of an organization, the court should be able to identify both the client and the source of authority.

In practice, however, that inquiry is often bypassed. In criminal proceedings, an individual may approach police, provide documents, and present concerns as those of an organization, yet appear at trial merely as a witness—without any scrutiny of whether they were authorized to speak for the entity. In civil litigation, a statement of claim may be issued in the corporation’s name, with courts focusing on formal standing while leaving unexamined the internal authorization by which the action was commenced. Where governance is contested or informal—as is frequently the case in nonprofit organizations—the risk is not theoretical. Individuals may act in circumstances of disputed leadership, incomplete records, or ambiguous mandates, effectively constructing an “organizational voice” that is neither verified nor verifiable.

This article identifies and analyzes what it terms the “authority gap”: a situation in which legal proceedings are initiated or shaped in the name of an organization without demonstrable authorization at the time of initiation, and courts proceed without resolving that threshold issue. The authority gap is not merely a matter of internal corporate governance. It raises concerns about evidentiary reliability, the integrity of the solicitor–client relationship, and the fairness of proceedings in which one party appears to speak with institutional legitimacy that may not exist.

The problem is particularly acute in the nonprofit sector. Unlike closely regulated corporate environments, nonprofits often operate with informal practices, uneven record-keeping, and reliance on volunteer directors. Board resolutions may be undocumented; roles may shift without formal transition; and disputes over leadership may coexist with ongoing legal action. In this context, the assumption that an individual’s conduct reflects the will of the organization becomes especially fragile.

This article will proceed in five parts. Part I sets the introduction; Part II sets out the doctrinal baseline, distinguishing between client identity, corporate authority, and the scope of solicitor–client privilege. Parts III and IV examine, respectively, the treatment of organizational complainants in criminal law and the conflation of standing and authority in civil litigation. Part V situates the problem within the governance realities of nonprofit organizations. Part VI develops the concept of the authority gap and demonstrates its doctrinal and practical consequences. Part VII proposes a limited doctrinal response: where authority is put in issue, courts should permit focused, non-privileged inquiry into the existence of authorization and the identity of the client, sufficient to distinguish personal from corporate acts. The article concludes that authority is not a mere internal matter, but a precondition to the legitimacy of legal action taken in the name of an organization.

By clarifying the relationship between identity, authority, and representation, the analysis aims to restore a basic but essential question to its proper place at the threshold of litigation: who, in law, is speaking?

Who Is the Client? Corporate Authority and the Authority Gap