ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-108480
DATE: 20130806

BETWEEN:

J.C. Nature Source Health Centre Inc.
Plaintiff

– and –

ISO Renovation Design, Wen Hui Shi, Yi Lin
Defendants

Raymond Young, Agent for the Plaintiff

Kin-Bun Ng, for the Defendants

HEARD: July 16, 2013

REASONS FOR DECISION

EDWARDS j.

[1] The defendants seek an order that would strike out the plaintiff’s statement of claim or alternatively, an order staying the action pending the filing by the plaintiff of a notice of appointment of lawyer, as required by Rule 15.01(2) of the Rules of Civil Procedure (the “Rules”). The plaintiff seeks an order allowing it to represent itself, utilizing the services of Raymond Young. At the time that the motion was heard, I released an endorsement that denied the plaintiff the right to be represented through the services of Mr. Young and provided the plaintiff sixty days within which to obtain legal counsel and to file a notice of appointment of lawyer. What follows are my reasons.

The Facts

[2] The genesis of the dispute relates to a design renovation project contract entered into between the parties on August 25, 2011. A dispute arose with respect to the performance of the contract and as such the defendants in the within action commenced a small claims court action against the plaintiff on March 2, 2012. At that time, the defendants had retained the services of a paralegal by the name of Rohit Kumar Singh. Correspondence between the parties culminated in a letter dated February 13, 2012 from Raymond Young & Associates (“Young”) to Rohit Kumar Singh in which Young responds on behalf of “my client”. Nowhere in Young’s letter of February 13, 2012 does he refer to his status with the plaintiff J.C. Nature Source Health Centre Inc. (the “plaintiff”) as being an officer or a director.

[3] On January 16, 2013 Mr. Ng, who appeared as counsel on the motion before me, sent a letter to The Law Society of Upper Canada (the “Law Society”) requesting that the Law Society conduct an investigation to determine whether or not Young was providing legal services and, as such, committing an offence under the Law Society Act[^1]. The investigation by the Law Society is ongoing as of the date of the hearing of this motion.

[4] The corporation profile obtained through the Ontario Ministry of Government Services (the “Ministry”) establishes that as of January 14, 2013, the plaintiff was incorporated on June 2, 2011 and that there were two directors, Jie Chen and Jian Ping Ding and that Li Ju Jiang was an officer/general manager, as well as treasurer.

[5] In the plaintiff’s motion material was an affidavit sworn by Young dated July 4, 2013. In Young’s affidavit he swears that he is a director of the plaintiff. Also filed in support of the plaintiff’s motion was an affidavit by Jie Chen in which she swears that Young is a director and also occupied the position of general manager. The sworn statements of Young and Chen are in sharp contrast to the corporation profile report obtained from the Ministry as of January 14, 2013.

[6] With the affidavits of Young and Chen deposing that Young was a director of the plaintiff, counsel for the defendants obtained an updated corporate profile from the Ministry as of July 5, 2013, which only shows Jie Chen and Li Ju Jiang as directors and Li Ju Jiang as general manager/officer. Again, the corporate profile obtained from the Ministry as of July 5, 2013, one day after the affidavits sworn by Young and Chen, is in sharp contrast to their sworn evidence that Young was both a director and general manager of the plaintiff.

[7] On July 9, 2013, the plaintiff filed what is described as a supplementary motion record to which was attached yet a further Ministry corporation profile report of the plaintiff which is dated July 9, 2013. For the first time, the corporation profile report shows Young as a director (although he is not shown as the general manager). The position of general manager is still shown as being occupied by Liu Ju Jian.

[8] Attached to the motion material filed by the defendants was advertising material that would suggest that Young holds himself out as providing legal services. At Tab H of the defendants’ supplementary motion record is what would appear to be a form of advertisement that has been translated from Chinese into English. The heading of the advertisement shows “Young Zhi Wen Legal Service Office” and beneath the aforesaid heading there is reference to various types of legal services such as: “Writing Testament (Will), Divorce By Consent, Adoption, Changing Name, Real Estate Transaction Contract.” In response to a question that I posed to Young, he confirmed that the name “Young Zhi Wen” was one in the same as Raymond Young. Mr. Young maintained, during the course of argument, that the advertisement was something that he had put in place at a point in time when he was hoping to refer legal work to a lawyer. This statement is in sharp contrast to further evidence filed by the defendants, in the form of a photograph taken of the store front operation where Young operates out of at Unit 1E15, 4675 Steeles Avenue East, Toronto. The photograph was taken on July 9, 2013 and purports to show the type of legal services that Young can provide.

[9] Young maintained, during the course of his argument, that the advertisement shown in the photograph was something that he had requested his landlord to take down a considerable period of time ago.

The Issue

[10] The question before this court is whether or not the plaintiff should be allowed to avoid the requirements of Rule 15 of the Rules that require a corporation be represented in this court only through the services of a lawyer, unless this court directs otherwise. Fundamentally, the issue is whether or not the plaintiff should be allowed to be represented by Young.

[11] The court was provided with little information with respect to the nature of the plaintiff corporation but for the purposes of this motion, I am prepared to assume that it is likely a relatively small corporation with relatively few shareholders. I was also provided with no information with respect to the financial wherewithal of the plaintiff to instruct and retain counsel. Fundamentally, on a motion where a corporation seeks to be represented through a representative of the corporation, it is incumbent upon the corporation to put before the court the nature of the corporation; the financial ability or inability of the corporation to instruct and retain counsel; and the ability of the individual who will in fact be speaking on behalf of the corporation. With the benefit of such evidence, the court can then determine whether or not the individual who would be representing the corporation has the ability to understand and advocate on behalf of the corporation’s interests on the issues that are raised in the proceeding before the court.

[12] The distinction between a corporation representing itself and an individual representing himself or herself has been reviewed in a number of decisions of this court. In Lamonde v. Smith (2004) 2004 6218 (ON SC), 11 C.P.C. (6th) 104, Quinn J. noted that the rationale for Rule 15.01 of the Rules is not readily apparent. Quinn J. went on to note that where a corporation is closely held and there is a sole director, officer, and shareholder, it is hard to justify not allowing that type of an individual to represent the company, given the fact that individuals have the right to represent themselves.

[13] In two fairly recent decisions of Boswell J. in Extend-A-Call Inc. v. Dimitri Granovski et al., 2009 33047 (ONSC) and De La Rocha v. Markham Endoscopy Diagnostics Inc. 2010 ONSC 5100, Boswell J. set forth a number of relevant factors that the court should consider when confronted with a motion under Rule 15.01(2) of the Rules. These factors are as follows:

(i) Whether the proposed representative has been duly authorized by the corporation to act as its legal representative;

(ii) Whether the proposed representative has a connection to the corporation;

(iii) The structure of the corporation in terms of shareholders, officers and directors and whether it is a closely held corporation;

(iv) Whether the interests of shareholders, officers, directors, employees, creditors and other potential stakeholders are adequately protected by the granting of leave;

(v) Whether the proposed representative is reasonably capable of comprehending the issues in the litigation and advocating on behalf of the corporation. The Court should not impose too high a threshold at this stage, given that the courts abound with self-represented litigants of varying skills. The proposed representative should, however, be reasonably capable of comprehending the issues and articulating the case on behalf of the corporation; and

(vi) Whether the corporation is financially capable of retaining counsel. Access to justice has been a concern troubling courts at all levels in Canada for some considerable time. It is fundamental to integrity of the courts and the reputation of the administration of justice that parties have reasonable access to our courts. If the refusal to grant leave would effectively bar a corporation from access to justice, this factor should be given considerable weight.

[14] In considering the factors set forth by Boswell J., I am not satisfied based on the evidentiary record that this court has adequate information to properly consider whether or not the corporation should be allowed to be represented by one of its representatives. Fundamentally, however, this court is of the view that Young should not be given the right to represent the corporation. Young has filed misleading evidence with this court, in the form of his affidavit of July 4, 2013, in which he deposes he is a director of the plaintiff. The public filings with the Ministry established that as of the date that he swore his affidavit, he was not a director of the plaintiff. The affidavit sworn by Jie Chen on July 4, 2013, presumably drafted by Young, deposes that Young is not only a director but also the general manager of the plaintiff. This evidence is again in sharp contrast to the public filing with the Ministry that shows as of the date that Jie Chen swore her affidavit, Young was not a director, nor was he a general manager. Even as of the date when the motion was argued, Young was not shown as the general manager of the plaintiff, as the corporate profile as of July 9, 2013 only showed Young as a director, not as general manager.

[15] The question of whether or not Young is in violation of the Solicitors Act[^2] and the Law Society Act is an issue that ultimately the Law Society will have to decide. The evidence filed on this motion, however, leads me to the conclusion that, in the absence of compelling evidence to the contrary, Young in fact has and continues to hold himself out as someone providing legal services. The letter that Young wrote on February 13, 2012 is not the type of letter that one would have expected someone in Young’s so-called position as a director to have written on behalf of the plaintiff. Rather, Young refers, on a number of occasions in his letter to “my client” and perhaps most significantly in paragraph 3 states:

Prior to the beginning of the work, Mr. Shi must post a CASH BOND of $60,000.00 (sixty thousand) with this office…

[16] I am satisfied, based on the evidentiary record before this court, that if the plaintiff was entitled to utilize the services of Young to represent itself before this court, effectively the court would be endorsing Young to provide legal services for which he is neither licensed to practice law in the Province of Ontario nor licensed to provide paralegal services in the Province of Ontario. Effectively, this court would be endorsing a course of conduct that is prohibited by statute. For these reasons, I am denying the plaintiff the right to be represented by Young and have ordered that the plaintiff deliver a notice of appointment of lawyer within sixty days failing which, the statement of claim shall be struck out and the action dismissed.

Justice M.L. Edwards

Released: August 6, 2013

[^1]: R.S.O. 1990, c. L.8.
[^2]: R.S.O. 1990, c. S.15.