SCP Metrasse, Bui & Associés v. Chinh, 2015 ONSC 66

COURT FILE NO.: CV-13-00486080

DATE: 20150115

SUPERIOR COURT OF JUSTICE - ONTARIO

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, August 15, 2014 and December 16, 2014

AMENDED ENDORSEMENT

[1] Tran Quoc Chinh and Bui Thi Linda (“Ms. Bui”) (together, the “Defendants”) bring this motion for summary judgment to dismiss the action brought by the Plaintiff Partnership, SCP Métrasse, Bui & Associés (the “Plaintiff Partnership”), because it lacks a valid cause of action and because the claims are statute barred by reason of the expiration of the applicable limitation periods.

[2] The Defendants are spouses of one another. The Plaintiff Partnership was registered in 2013.

[3] Well before the hearing of this motion, the Defendants advised the Plaintiff Partnership that it must amend its claim because the Plaintiff Partnership has no right of action against the Defendants. The claims made by the Plaintiff Partnership do not relate to the usual business of the partnership nor do they belong to the partnership itself.

[4] The Defendants submit that the alleged causes of action raised in the statement of claim belong only to Mr. Bui Duy Thinh (“Mr. Bui”), a partner of the Plaintiff Partnership. The other partners have alleged no cause of action, but rely instead on their familial relation to Mr. Bui.

[5] The father of Ms. Bui and Mr. Bui passed away in France without a will. Mr. Lefeuvre, a notary in France, administered the father’s estate.

[6] The Defendants submit that all real and personal properties of the father lawfully passed to his widow Françoise Bui in usufruct for the duration of her life. Their fourteen children, including Ms. Bui and Mr. Bui, do not receive their share of the inheritance until after the mother passes away (that is, assuming they have accepted their inheritance).

[7] The Defendants provided the Court with the expert evidence of Ms. Jordane Crispel, a French lawyer and expert in French succession law. Ms. Jordane Crispel submitted that, according to French law, neither Mr. Bui nor Ms. Bui is an executor, liquidator, or person administering their father’s estate. Rather, Mr. Lefeuvre is the estate administrator.

[8] In 2004, Mr. Bui commenced various actions in France, Quebec, and Ontario, against his mother and siblings concerning the administration of his father’s estate.

[9] Mr. Bui commenced a lawsuit in the Ontario Superior Court of Justice (CV-13-471701) against Mr. Philippe Sackoun, a French lawyer who represented the other beneficiaries and the mother against Mr. Bui in a French action relating to the title of a real property in Paris. Justice Brown dismissed the Ontario lawsuit for want of jurisdiction simpliciter: Thinh v. Philippe, 2013 ONSC 7395.

[10] In those proceedings, Mr. Bui obtained an order from Master Glustein for the production of certain documents from Mr. Sackoun. In her decision, Justice Brown quashed Master Glustein’s order and declared it a nullity. Notwithstanding Justice Brown’s decision, some of the purported causes of action raised before the Court in the case at bar relate to Mr. Sackoun’s alleged non-answer to Master Glustein’s quashed interlocutory production order.

[11] On September 17, 2014, this Court made a ruling with respect to the issues raised regarding the Plaintiff Partnership’s status to bring this action: SCP Metrasse, Bui & Associés v. Chinh, 2014 ONSC 5056. Mr. Bui and Mme. Monique Metrasse (“Mme. Metrasse”), both individual partners of the Plaintiff Partnership, requested that this Court amend the pleadings to add themselves as individual Plaintiffs.

[12] The Court instructed Mr. Bui and Mme. Metrasse to bring that motion before a Master before the continuation of the hearing before the Court. They did not follow this instruction, despite having ample opportunity to do so. At the continuation of the hearing, they argued that no amendment to the pleadings was necessary on the basis that the Plaintiff Partnership was formed to take care of the interests of their family.

[13] A partnership is defined in s. 2 of the Partnership Act, R.S.O. 1990, c. P.5., as “the relation that subsists between persons carrying on a business in common with a view to profit.” A proceeding can be commenced in the name of the partnership, but “a partnership is not a legal entity with the capacity to sue” [Ontario Civil Practice, 2014, Garry Watson and Michael McGowan (Carswell: 2014) p. 374; citing Bell Canada v. Plan Group Inc., 2012 ONSC 42]. A partnership is not “distinct from the persons, the partners, who comprise the partnership” [The Law of Civil Procedure in Ontario, 1ed, Paul Perell and John Morden (LexisNexis: 2010) p. 238 (“Perell”); citing Sadler v. Whiteman, [1910] 1 K.B. 868 at 889]. However, the rule allowing proceedings to be brought in the name of the partnership “does not authorize individual partners to sue in the name of the partnership when they are advancing their own individual claims” [Perell p. 239; Journey's End Toronto Hotel Number One Partnership v. Deloitte & Touche L.L.P., 2006 3479 (ON SC), [2006] O.J. No. 500 (Ont. S.C.J.)].

[14] Mr. Bui and Mme. Metrasse submit that the Plaintiff Partnership was formed to take care of the interests of the partners’ family unit, it does not follow on that basis alone that the individual claim of one partner thereby becomes a partnership claim. The Court has already alerted Mr. Bui to the fact that his individual claim against the Defendants cannot be brought in the name of the Plaintiff Partnership on the sole basis of the fact that he is a partner. However, Mr. Bui did not amend his statement of claim accordingly and did not provide evidence to persuade the Court that the claim could be properly brought in the Plaintiff Partnership’s name.

[15] The test for summary judgment in Ontario is described in Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). The test is affirmed in the seminal Supreme Court of Canada case Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”), para. 47: summary judgment must be granted whenever there is no genuine issue requiring a trial.

[16] At para. 49 of Hryniak, the Supreme Court held:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[17] The test for summary judgment is met in the present case. The Plaintiff Partnership’s claim is dismissed for want of a valid cause of action against the Defendants.

[18] Given this finding, the Court does not need to rule on the Defendants’ limitation period argument. However, it should be noted that the Court accepts the submissions of the Defendants with respect to their expiration of the limitation period defence. If the Court had found that the statement of claim did disclose a valid cause of action, the Court would have dismissed the Plaintiff Partnership’s claim because of the expiration of the applicable limitation periods.

Costs

[19] The Defendants have been successful on this motion as the Plaintiff Partnership’s claim has been dismissed. The Defendants are therefore entitled to a cost award. If the parties are unable to agree on the cost award, they may make brief written submissions as follows:

The Defendants’ costs submissions must be delivered by 12:00 p.m. on January 23, 2015; and the Plaintiff Partnership’s costs submissions must be delivered by

12:00 p.m. on January 30, 2015. In accordance with what the Rules provide, the submissions should not exceed three pages in length.

Pollak J.

Date: January 15, 2015