CITATION: Paquette v. Hemish, 2017 ONSC 4505

COURT FILE NO.: 16-70008

DATE: 2017/07/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Patrick Paquette, plaintiff

AND

Roy Hemish, defendant

BEFORE: Madam Justice H. J. Williams

COUNSEL: Patrick Simon, counsel for the plaintiff

Steven Hemish, brother of the defendant, appearing for the defendant

HEARD: July 21, 2017

ENDORSEMENT

1This was a motion to strike the defendant’s statement of defence and for related relief.

Background:

Background

2The motion arises in the context of an action for damages relating to a unit in a residential building (“the Blake Blvd. property"), which is a co-tenancy governed by a use and occupation agreement.

3In his amended statement of claim, the plaintiff, Patrick Paquette, who owns six of the eight units in the building, pleads that he has paid the common expenses, a share of the utility bills and some other costs relating to the unit owned by the defendant, Roy Hemish. The plaintiff is seeking damages representing reimbursement for the amounts he has paid and for unpaid municipal taxes.

The pleadings:

The pleadings

4The statement of claim was issued on September 21, 2016.

5There was no evidence before me with respect to service of the statement of claim.

6A statement of defence was served on November 3, 2016. The name Steven Hemish appears below the last numbered paragraph of the statement of defence and on its back page. The address for service for Steven Hemish is the unit in the Blake Blvd. property owned by the defendant. The statement of defence describes Steven Hemish as the defendant’s “representative”. It states that Steven Hemish has a power of attorney “at” the unit owned by the defendant and that he has lived in the unit for more than 15 years.

7Steven Hemish is not a lawyer.

The February 24, 2017 motion before Justice Pierre Roger:

The February 24, 2017 motion before Justice Pierre Roger

8Justice Pierre Roger heard a motion on February 24, 2017 and found the statement of defence to be irregular in that there was no evidence that the defendant lacked capacity, no evidence of any power of attorney and no evidence that a litigation guardian had been appointed. Justice Roger noted that if the defendant were incapable or if a power of attorney had been signed, legal representation would be required.

9Justice Roger ordered the defendant to serve the plaintiff with certain documents by certain deadlines:

1. by March 3, 2017, a copy of any applicable power of attorney;

2. by April 14, 2017, a notice of appointment of lawyer under Rule 15.02(2);

3. by April 14, 2017, a draft amended statement of defence to address the irregularities with the November 3, 2016 statement of defence “including that it appears not to be from or to be authorized by the defendant or by a proper litigation guardian”; and

4. by April 14, 2017, if applicable, an affidavit appointing a litigation guardian or any document authorizing anyone to represent the Defendant in this action.

10Justice Roger ordered that, in the event of default in respect of any of the above, the plaintiff could bring a motion, on notice, to strike the statement of defence.

Compliance with the order of Justice Roger:

Compliance with the order of Justice Roger

11The defendant’s brother complied with part of but not all of Justice Roger’s order.

12On March 3, 2017, the defendant’s brother produced a copy of a standard form power of attorney for property which had been signed on June 30, 2012 and registered against the title to the defendant’s unit in the Blake Blvd. property on April 30, 2014.

13With respect to the documents Justice Roger ordered to be produced by April 14, 2017:

(a) No notice of appointment of lawyer was served. Instead, on April 13, 2017, the defendant’s brother provided the plaintiff with a letter from an Ottawa lawyer who, in subsequent correspondence with the plaintiff’s lawyer, made it clear that she had not been retained;

(b) Also on April 13, 2017, the defendant’s brother served a draft amended statement of defence. The draft amended statement of defence did not address the irregularities in the original statement of defence that had been identified by Justice Roger; as mentioned above, Justice Roger had expressed concern that the original statement of defence did not appear to be either from or authorized by the defendant or by a proper litigation guardian. The first paragraph of the draft amended statement of defence stated that the defendant had no knowledge of any of the allegations in the statement of claim, had not lived in Canada for at least 20 years and had never lived in the unit which is the subject of the litigation. The second paragraph of the new pleading read as follows:

I Steven Hemish will be using Power of Attorney for Property with legal advice from a lawyer to defend in this case.

The last paragraph of the draft amended statement of defence stated that the defendant’s brother intended to further amend the pleading to reflect the result of a capacity assessment of the defendant;

(c) Also on April 13, 2017, the defendant’s brother provided the plaintiff’s lawyer with a letter dated April 10, 2017, which appears to have been signed by a Mrs. Gail Hemish. In the letter, Mrs. Hemish identified herself as the defendant’s wife and said that she was in the process of obtaining a letter from the defendant’s doctor to confirm that the defendant has the capacity to instruct a lawyer to deal with the Blake Blvd. property. In the letter, Mrs. Hemish said that this was taking longer and was not as straight forward as hoped;

(d) At the hearing of this motion on July 21, 2017, the defendant’s brother produced a copy of an unsigned document titled “Order Appointing a Deputy for Property and Affairs”, date-stamped February 18, 2016, which appears to appoint a solicitor in Bournemouth, Dorset, U.K. as representative of the defendant. The defendant’s brother said that this order had been sent to the plaintiff’s lawyer by email on July 17, 2017. The order appears to have been issued by the Court of Protection in London. The order states that the court was satisfied that the defendant “lacks capacity to make various decisions for himself in relation to a matter or matters concerning his property and affairs”.

Disposition:

Disposition

14In his oral submissions at the hearing of the motion before me, the defendant’s brother said that the defendant has been living in the United Kingdom, that he had been in a coma and that he had suffered brain damage.

15It certainly appears that as of February 18, 2016, the date of the order of the Court of Protection in London, the defendant would have lacked the mental capacity to defend the plaintiff’s action. In light of Mrs. Hemish’s April 10, 2017 letter, whether the defendant continues to lack capacity is unclear.

16What is clear is that the defendant’s brother has no authority to defend the action on the defendant’s behalf.

17At the hearing of this motion, the defendant’s brother requested additional time to comply with Justice Roger’s order.

18Time will not legitimize the defendant’s brother’s statement of defence.

19Section 1(1) of the Solicitors Act, R.S.O. 1990, c. S. 15 prohibits non-lawyers from representing others in court; section 26.1(1) of the Law Society Act, R.S.O. 1990, c. L. 8 prohibits non-licensees¹ from practising law or providing legal services.

20If the defendant has the mental capacity to defend the action, he may retain a lawyer to represent him or he may defend the action on his own behalf. If the defendant does not have the mental capacity to defend the action, Rule 7.01(1) of the Rules of Civil Procedure (“the Rules”) requires him to be represented by a litigation guardian and Rule 15.01(1) of the Rules requires him to be represented by a lawyer.

21Regardless of whether the defendant has the mental capacity to defend the action, the defendant’s brother cannot rely on a power of attorney to represent the defendant’s interests in court. As Justice Stinson put it in Gagnon v. Pritchard, 2002 CanLII 49419 (ON SC), 58 O.R. (3d) 557 (S.C.J.), to conclude otherwise “would be to grant a license to practise law to anyone who is able to persuade someone else to execute a power of attorney authorizing the former to step into the shoes of the latter in order to conduct litigation. There are sound policy reasons not to pursue that course.”

22For these reasons, I order as follows:

(a) The statement of defence is struck under Rule 2.01(1)(b) and Rule 60.12(b));

(b) As there may be issues with respect to service of the statement of claim, if required, the time for service under Rule 14.08(1) is extended for 90 days from the date of this endorsement;

(c) The plaintiff requested costs against the defendant. It is not clear from the evidence that was before me that the defendant or a person authorized to represent the defendant is even aware of the action. It is the defendant’s brother, a non-party, who has been defending the action. The costs of the motion are reserved to be dealt with on a further motion or by the trial judge;

(d) In the circumstances, compliance with Rule 59.03(1) is waived. A draft order may be sent to me to be signed, through the office of the trial coordinator.

Footnotes

1. 1Under the Law Society Act, a “licensee” is defined as (a) a person licensed to practise law in Ontario as a barrister and solicitor, or (b) a person licensed to provide legal services in Ontario. A “person licensed to practise law in Ontario” and “a person licensed to provide legal services in Ontario” are also defined in the Act.