CITATION: Ward v 1121720 Ontario Ltd. o\a Havcare Investments Inc., 2015 ONSC 3873

COURT FILE NO.: CV-14-514552

DATE: 20150625

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert H Ward, Plaintiff

AND:

1121720 Ontario Ltd. o\a Havcare Investments Inc., Defendant

BEFORE: Carole J. Brown

COUNSEL: Dave A. Messam, for the Responding Party Plaintiff

Carolyn Krebs, seeking leave to represent the Moving Party Defendant

HEARD: June 17, 2015

ENDORSEMENT

[1] The defendant brings this motion to obtain an Order granting Carolyn Krebs leave to represent the defendant corporation in this matter, and an order granting an extension of time to file a defence.

[2] The action, brought by the plaintiff who allegedly suffered injuries in a slip and fall on January 19, 2014 on premises owned and operated by the defendant, was commenced October 21, 2014. The defendant was served November 4, 2014 and brought a motion returnable April 28 for leave to have Ms. Krebs represent the defendant. That motion was adjourned to June 17. At the motion, materials were, in the words of the court, "wholly inadequate for this court to make a proper determination in this matter".

[3] Pursuant to rule 15.01(2) of the Rules of Civil Procedure, the Corporation shall be represented by a lawyer except with leave of the court. In exercising its discretion pursuant to rule 15.01(2) to grant leave to a non-solicitor to represent the Corporation, factors to be considered by the court include:

a. The internal situation of the Corporation and whether the person seeking to represent the Corporation in court is a senior representative of the Corporation who has been duly authorized by the Board of Directors, who themselves are properly elected;

b. The nature of the action and the issues, and whether it would be seriously unfair to the opposite party to have the case presented are defended by a non-solicitor; and

c. Whether the proposed corporate representative will be able to properly carry out the duties of a litigant under the rules.

[4] In addition, the court should consider:

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

b. Whether the proposed representative should be reasonably capable of comprehending the issues and articulating the case on behalf of the Corporation; and

c. Whether the Corporation is financially capable of retaining counsel.

Extend-A-Call Inc. v Dmitri Granovski Et al (2009) 33047

De la Roche v Markham Endoscopy Diagnostics Inc. (2010) ONSC 5100

[5] The onus lies with the Corporation to justify granting such leave. It is incumbent on 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: JC Nature Source Health Center Inc. v Iso Renovation Design (2013) O.J. No. 4349.

[6] In determining whether leave should be granted, I have taken into consideration the cases set forth above, as well as DM Urban-Scape Property Developments Ltd. v Body Blitz Spot East Inc. (2014) ONSC 1616. In that decision, the court set forth examples of conduct to justify refusal of the court to grant leave, including (i) inadequate materials filed; (ii) failure to follow court direction; (iii) evasive answers in previous court matters.

[7] In the present case, there is no sufficient evidence adduced by the defendants as regards the factors set forth at paragraphs 3 and 4, above.

[8] Carolyn Krebs in her amended motion record states that she is a part owner of the Corporation and that she has been a director of the defendant Corporation since 1995, involved in the daily management of the Corporation. She states that she can represent the Corporation. In this regard, she states that she has appeared on behalf of the defendant Corporation in landlord and tenant hearings, Small Claims Court and Ontario Superior Court matters, as well as before the Human Rights Tribunal of Ontario.

[9] As regards the factors to be considered, despite the fact that this motion was adjourned in order for the defendant to provide adequate supporting documentation, the plaintiff has provided documentation to establish that she is an administrator and director of the Corporation, but has provided no evidence as to whether she has been duly authorized by the Board of Directors who themselves are properly elected. There is no evidence as to who comprises the Board of Directors.

[10] Further, there is no evidence before this Court to establish the financial ability or inability of the Corporation to instruct and retain counsel. As set forth above in DM Urban-Scape Property Developments Ltd. v Body Blitz Spot East Inc., supra, lack of such evidence and a failure to produce relevant financial documentation can be taken as an assumption that the Corporation indeed has the financial means to retain counsel. There is no evidence in this case to suggest otherwise.

[11] Moreover, while the defendant indicates that she has been before tribunals and courts on numerous occasions, having been granted leave to represent the defendant, this evidence is not before the court, other than her statement in her affidavit and two cases which she has included in her motion record. As she acknowledges, most of her appearances to date have been before tribunals and Small Claims Court, the rules of which do not include a rule similar to 15.01(2).

[12] She has also included two cases from this court, Tarrington v Havcare Investments Inc and MacIsaac v Havcare Investments Inc., which granted her leave to represent the Corporation. Both cases were unopposed and there is no evidence before me of the nature or scope of the evidence before those courts in support of those motions.

[13] I have also reviewed the case of A.B. v Havcare Investments Inc. (2014) HRTO 1087, a decision rendered by the Human Rights Tribunal of Ontario, and relied on by counsel for the plaintiff. Ms. Krebs admits that she requested a reconsideration of that decision, which did not vary the decision, and now intends to appeal to the Divisional Court, but has not done so. While I have considered that decision, is only one of numerous factors considered and is not central to my decision.

[14] Based on the adjudicator's decision, it appears that Ms. Krebs conduct of the matter, inter alia, caused unnecessary delays and expense. Based on the evidence before me, the lack of evidence set forth at paragraph 10 and 11 above, as well as the fact that the defendant, having been given a chance to provide additional supporting documentation in order to seek leave pursuant to rule 15.01(2), still failed to do so. This strongly suggests to me that the corporate representative will be not unable to properly carry out the duties of the litigant pursuant to the rules. It further suggests to me that Ms. Krebs will not be able to properly represent the Corporation, such that it would not be in the interest of the shareholders, officers, directors, employees, creditors and other potential stakeholders of the defendant to grant such leave.

[15] Based on all of the foregoing, I deny such leave and dismiss the defendant's motion. The defendant is to name counsel to represent it within 30 days. The statement of defence is to be served within 90 days of the release of this decision.

Carole J. Brown

Date: June 25, 2015