SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-00486080
DATE: 20140917
RE: SCP Metrasse, Bui & Associés, Plaintiff
AND:
Tran Quoc Chinh and Bui Thi Linda, Defendants
BEFORE: Pollak J.
COUNSEL:
Bui Duy Thinh and Monique Metrasse, self-represented partners of the Plaintiff
Chadi Yehia, for the Defendants
HEARD: May 5, 2014 and August 15, 2014
ENDORSEMENT
[1] The Motion for Summary Judgment brought by the Defendants was adjourned to ensure both; that the partnership SCP Metrasse, Bui & Associés, had been properly served, and that each partner was adequately self-represented at the hearing. Mr. Bui and Mme. Metrasse, two of the three partners comprising SCP Metrasse, Bui & Associés, attended both hearings.
[2] One of the main arguments submitted by the Defendants in their Motion for Summary Judgment is that the Plaintiff does not claim to have any of the alleged rights set out in its Statement of Claim (“Claim”). Rather, the Plaintiff is making allegations on behalf of its partners in their individual capacities. The Defendants submit that on that basis alone the Motion for Summary Judgment must succeed and the Claim must be dismissed.
[3] The Defendants advised Mr. Bui of this argument well in advance of the hearing on May 5, 2014. When the Court advised Mr. Bui and Mme. Metrasse at this hearing that this argument would be successful, Mr. Bui asked the Court to amend the Plaintiff’s Claim by substituting as plaintiffs the names of the partners in place of the partnership. The Defendants objected to this request and submitted that the two individual partners in attendance could not speak for the partnership because they are not lawyers.
[4] At the continuation of the hearing on August 15, 2014, Mr. Bui and Mme. Metrasse requested that the Court consider a “Motion de jonction des parties essentielles” (hereafter referred to as “Motion to Amend”) pursuant to Rule 5.03(1) in the Rules of Civil Procedure.
[5] In this Motion to Amend, the Plaintiff seeks to add as plaintiffs in the Claim some of its partners, pursuant to Rule 5.03(1). The Plaintiff did not request substitution of the partners’ names for the partnership name pursuant to Rule 5.04(2), which is what Mr. Bui requested at the previous hearing.
[6] Mr. Bui and Mme. Metrasse submitted an affidavit signed by Mr. Bui in his capacity as the president, director, and treasurer of SCP Metrasse, Bui & Associés. In this affidavit (which is also signed by the three partners, Bui Duy Thinh, Metrasse Monique and Bui Metrasse Alexander), the partners of the Plaintiff partnership state that they have no objection to the request for joinder of necessary parties to this claim.
[7] The Defendants objected to the relief sought in this Motion to Amend and again argued that the two individual partners, who are not lawyers, could not act on behalf of the partnership.
[8] A Master has jurisdiction to hear the Motion to Amend. The Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region (Effective July 1, 2014) states:
G. Motions which must be brought before a Master
A master has jurisdiction to hear any motion in a proceeding except those specified in rule 37.02(2). Masters’ motions must be made to a master.
Unless the relief requested in the motion is within the exclusive jurisdiction of a judge, a motion returnable by attendance or in writing must be made to “the Court” and heard by a master.
Judges may refuse to hear any motion that is within the jurisdiction of a master.
[Emphasis added.]
[9] The Court anticipated that the Plaintiff would have brought a motion before a Master such that at the continuation of the hearing on August 15, 2014, the parties could have continued with the Motion for Summary Judgment with which the Court is seized. At the first hearing of the Motion for Summary Judgment, the Defendants presented their argument in chief and the Plaintiff was to present its oral argument in chief. Notwithstanding the adjournment to deal with the issues to which I have referred, the Plaintiff did not bring its Motion to Amend before a Master. Rather, the Plaintiff brought it before this Court.
[10] In the afternoon of the hearing on August 15, 2014, in order to expedite the hearing, the Defendants changed their submissions and indicated that they would consent to the Motion to Amend brought by the Plaintiff. However, they maintained their argument that the partnership would need to be represented by a lawyer.
[11] In an effort to accommodate the interests of the parties, the Court heard submissions on how to best resolve the issues that have arisen. The Court was unable to make a ruling at the hearing and reserved its decision on the following issues:
(1) Was Mr. Bui entitled to self-represent the partnership, at the hearings of June 18, 2014 and August 15, 2014 of the Motion for Summary Judgment?
(2) Can two of the three partners bring a Motion to Amend the Claim without the third partner's presence but with his affidavit consenting to the amendment?
[12] The Defendants submit that Mr. Bui and Mme. Metrasse cannot represent the interests of the Plaintiff without hiring a lawyer. Rule 15.01(2) provides that, without leave of the court, a corporation that is party to a proceeding “shall be represented by a lawyer.” There is no equivalent rule applicable to partnerships. The Defendants submit that the same requirement ought to apply to a partnership, pointing to Rule 120 of the Federal Court Rules, (SOR/98-106), which requires that a partnership be represented by a lawyer.
[13] Rule 15.01(1) provides that a party to a proceeding who “acts in a representative capacity shall be represented by a lawyer.” This raises the issue of whether a partner acting in the name of a partnership is acting in a “representative capacity.”
[14] A partnership is defined, under section 2 of the Partnerships Act:
- Partnership is the relation that subsists between persons carrying on a business in common with a view to profit, but the relation between the members of a company or association that is incorporated by or under the authority of any special or general Act in force in Ontario or elsewhere, or registered as a corporation under any such Act, is not a partnership within the meaning of this Act. R.S.O. 1990, c. P.5, s. 2. [Emphasis added.]
[15] The Business Names Act, R.S.O. 1990, Ch. B.17, requires that the partnership be registered with the Ontario Ministry of Government Services to carry on business and to “maintain a proceeding in a court in Ontario in connection with that business.”
- …(3) No persons associated in partnership shall carry on business or identify themselves to the public unless the firm name of the partnership is registered by all of the partners. 1994, c. 27, s. 72 (2).
[16] The evidence is that there are three partners registered in the Business Names Report brought before the Court: Thinh Duy Bui, Alexander Bui Metrasse, and Monique Metrasse. The Partnerships Act, R.S.O. 1990, c. P.5, provides that each partner can make decisions binding the firm and that each partner is bound by acts done in the firm name:
Power of partner to bind firm
- Every partner is an agent of the firm and of the other partners for the purpose of the business of the partnership, and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he or she is a member, bind the firm and the other partners unless the partner so acting has in fact no authority to act for the firm in the particular matter and the person with whom the partner is dealing either knows that the partner has no authority, or does not know or believe him or her to be a partner. R.S.O. 1990, c. P.5, s. 6.
Partners bound by acts on behalf of firm
- An act or instrument relating to the business of the firm and done or executed in the firm name, or in any other manner showing an intention to bind the firm by a person thereto authorized, whether a partner or not, is binding on the firm and all the partners, but this section does not affect any general rule of law relating to the execution of deeds or negotiable instruments. R.S.O. 1990, c. P.5, s. 7.
[17] On the basis of the above-noted legislation, the Court finds that Mr. Bui and Mme. Metrasse can make decisions on behalf of the Plaintiff.
[18] Section 1(1) of the Solicitor’s Act, R.S.O. 1990, c. S.15, prohibits practicing law without a license:
UNAUTHORIZED PRACTICE
Penalty on persons practising without being admitted as solicitors
- (1) Subject to subsection (2), if a person commences, prosecutes or defends in his or her own name, or that of any other person, any action or proceeding without having been admitted and enrolled as a solicitor, he or she is incapable of recovering any fee, reward or disbursements on account thereof, and is guilty of a contempt of the court in which such proceeding was commenced, carried on or defended, and is punishable accordingly. R.S.O. 1990, c. S.15, s. 1; 2013, c. 17, s. 27 (1).
[19] However, this prohibition does not apply to “a party to the proceeding” (s. 1(2)(a)). On this basis, I find that Mr. Bui and Mme. Metrasse are representing themselves as partners and are not acting in a representative capacity for other members of the partnership.
[20] As I have discussed above, the Court heard submissions on the best way to proceed so that the Motion to Amend could be dealt with and the hearing of the Motion for Summary Judgment could proceed. It was necessary to adjourn the Motion for Summary Judgment to December 16, 2014, and I believe that the best way to proceed is to have the Plaintiff’s Motion to Amend heard by a Master.
[21] This Court cannot make a ruling on the Motion to Amend as the parties will be requested to make further submissions to address issues that have arisen. Firstly, it may be redundant to name as plaintiffs both the partnership and the partners of which the partnership is comprised [Garry Watson and Michael McGowan, Ontario Civil Practice (Carswell: 2014), at p. 375]. The partnership is a relationship between partners. It is not a separate legal entity distinct from the partners.
[22] If the Master grants the Plaintiff’s Motion to Amend to add both Mr. Bui and Mme. Metrasse individually as plaintiffs, a potential conflict of interest could arise. Can Mr. Bui continue to represent the partnership if he is also an individual plaintiff?
[23] On the basis of my above findings, I therefore direct that the parties resolve the Motion to Amend before a bilingual Master, so that they will be in a position to continue the Motion for Summary Judgment on December 16, 2014. If the Motion to Amend cannot be heard and decided by a bilingual Master before December 16, 2014, I direct the Defendants to contact my assistant, after consulting with Mr. Bui and Mme. Metrasse, to find an appropriate date for the continuation of the Motion for Summary Judgment.
[24] Costs of this hearing are reserved to the disposition of the Motion for Summary Judgment.
Pollak J.
Date: September 17, 2014