Court File and Parties
COURT FILE NO.: CV-14-00513334 MOTION HEARD: 20170410 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicola Simpson, Plaintiff AND: Bell Mobility Inc., Paul Anthony Pinillos-Ore and ABO Wireless Solutions Inc., Defendants
BEFORE: Master B. McAfee
COUNSEL: Khanh Kim Le Bui, in person, on behalf of the defendant ABO Wireless Solutions Inc. K. Booth for the defendant Bell Mobility Inc. M. Wilchesky for the plaintiff Nicola Simpson
HEARD: April 10, 2017
Reasons for Decision
[1] This is a motion brought by the defendant ABO Wireless Solutions Inc. (ABO) for leave to be represented by a non-lawyer, Khanh Kim Le Bui (Ms. Bui).
[2] The defendant Bell Mobility Inc. (Bell) opposes the motion. The plaintiff takes no position on the motion.
[3] For the following reasons, the motion is granted.
[4] The applicable Rule is 15.01(2): A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court.
[5] The factors that courts have considered on this type of motion are stated by Justice Boswell in De La Rocha v. Markham Endoscopy Diagnostics Inc., 2010 ONSC 5100 (Ont. S.C.J.) at paragraph 2:
(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;
(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 the 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.
[6] As further stated by Justice Boswell in De La Rocha at paragraph 3,
Ultimately, the court must give effect to what order is in the interests of justice and must pay heed to Rule 1.04, which directs the court to construe the rules so as to ensure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[7] The onus is on Ms. Kim to satisfy the court that leave ought to be granted (Ward v. 1121720 Ontario Ltd. o/a Havcare Investments Inc., 2015 ONSC 3873 (Ont. S.C.J.) at paragraph 5).
(i) Whether the proposed representative has been duly authorized by the corporation
[8] Bell does not dispute that Ms. Bui has been duly authorized by the corporation to act as its legal representative.
(ii) Whether the proposed representative has a connection to the corporation
[9] Ms. Bui is the president, sole officer, sole director and sole shareholder of the corporation. While Ms. Bui may not have been involved in the day to day operation of the corporation, I am satisfied that Ms. Bui has a connection to the corporation in these circumstances.
(iii) Whether the corporation is a closely held corporation
[10] Bell does not dispute that ABO 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
[11] Ms. Bui is the president, sole officer, sole director and sole shareholder of the corporation. There are no current employees. The corporation is no longer operating. I was not referred to any evidence of creditors and other potential stakeholders who may have an interest.
(v) Whether the proposed representative is reasonably capable of comprehending the issues in the litigation and advocating on behalf of the corporation
[12] Bell argues that Ms. Bui is not reasonably capable.
[13] I am satisfied that Ms. Bui passes the not too high threshold required to establish that she is reasonably capable of comprehending the issues in the litigation and advocating on behalf of the corporation.
[14] Ms. Bui was well prepared for the motion, organized, and made submissions in support of the relief requested for approximately 1 hour.
[15] The references in the transcript of Ms. Bui’s cross-examination relied on by Bell in oral argument in support of Bell’s position that Ms. Bui is not reasonably capable imposes too high of a threshold. On cross-examination Bell’s counsel asked Ms. Bui to explain legal concepts such as duty of care, negligence, vicarious liability. Although Ms. Bui will need to become more familiar with these legal concepts, with an opportunity to research and prepare as she researched and prepared for this motion, and having regard to the nature of this action, I am satisfied that she is reasonably capable of comprehending the issues in this action.
[16] Bell also relies in part on the original draft order for this motion submitted by Ms. Bui to the parties in support of its position that Ms. Bui is not reasonably capable. The wording of paragraph 1 of the original draft order required revision. Plaintiff’s counsel provided Ms. Bui with suggested alternative wording that Ms. Bui incorporated into a revised draft order. I am not satisfied that any issues surrounding the draft order support Bell’s position.
[17] Bell also argues that Ms. Bui’s evidence is misleading. Bell relies on the differences between draft audited financial statements and the audited financial statements. Shortly before Ms. Bui’s cross-examination, Bell requested financial statements for ABO. In an effort to comply with Bell’s request on short notice, Ms. Bui provided unaudited statements. Thereafter, when the accountant had sufficient time to comply with the request, audited financial statements were provided. I am satisfied that any differences between the unaudited and audited financial statements have been adequately explained in these circumstances. Ms. Bui was attempting to comply with Bell’s last minute request. I am not satisfied that Ms. Bui intentionally mislead Bell.
(vi) Whether the corporation is financially capable of retaining counsel
[18] With respect to this last factor, I adopt the reasons of Justice Quinn in Lamond v. Smith, [2004] O.J. No. 3225 (Ont. S.C.J.) and as cited by Justice Matheson in Yachtware Marine Services v. Dennis, 2010 ONSC 5575 (Ont. S.C.J.) at paragraph 10:
Impecuniosity may be one reason why leave should be granted in a motion under subrule 15.01(2), but it is not a necessary reason. Frankly, I do not see why the ability or inability to afford a lawyer should be a relevant factor. The court would not question a self-represented individual about his or her finances and I fail to appreciate why the matter should be different with corporations. Some people and companies may think that they have better things to do with their money than to pay lawyers. They may be right; they may be wrong.
The historical reluctance of trial courts to grant leave to a corporation to be represented by a non-lawyer has little merit in the case of a small, one-man company. Therefore, I exercise my discretion in favour of the moving party and grant leave for 1198827 Ontario Inc. to be represented by Mr. Smith.
[19] I do not believe that this is a relevant factor in the circumstances before me where Ms. Bui is the president, sole officer, sole director and sole shareholder.
[20] If I am wrong and this is a relevant factor, I am satisfied that the corporation is not financially capable of retaining counsel. The corporation is no longer in operation. Even if Ms. Bui could borrow money, I am not certain how the corporation could repay her, given that it is no longer in operation.
[21] Bell also argues that given the serious and sensitive nature of the allegations in this action, ABO ought to be represented by a lawyer. I have taken into account the nature of this proceeding when considering whether Ms. Bui is reasonably capable. I was not referred to case law in support of Bell’s submission that the nature of this proceeding prohibits someone who is not a lawyer from representing ABO.
[22] Having regard to the relevant factors and the circumstances of this proceeding, it is in the interests of justice that ABO be granted the leave sought.
Costs
[23] Although ABO was successful on the motion, I award no costs of the motion to ABO, Ms. Bui or any party. Ms. Bui advised on the motion that she was retired. I am not satisfied that Ms. Bui had to forego remunerable employment to prepare for or attend the motion. ABO/Ms. Bui did not bring a costs outline to the motion.
[24] Order to go as follows:
- Leave is granted to the defendant ABO to be represented by Ms. Bui, a non-lawyer.
- There shall be no costs of the motion payable to ABO, Ms. Bui or any other party.
[25] I have signed an original order, as amended.