CITATION: Sae-Bin Im v. BMO Investorline Inc., 2017 ONSC 95
COURT FILE NO.: CV-15-533145
DATE: 20170104
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sae-Bin Im, Plaintiff
AND:
BMO Investorline Inc., CIBC Investor Services Inc., TD Waterhouse Canada Inc., Canadian Securities Administrators, Investment Industry Regulatory Organization of Canada and Minister of Finance, Canada, Defendants
BEFORE: Madam Justice Kristjanson
COUNSEL: Sae-Bin Im, Self-represented Plaintiff
No Submissions from the Defendants
HEARD: In Writing
ENDORSEMENT
[1] Mr. Sae-Bin Im is seeking leave to discontinue an action pursuant to Rule 23.01(2), on the grounds that he is under a disability. Mr. Im states that the causes of the claim took place on July 24, 2013, and he issued a Notice of Action July 24, 2015, but did not serve the Statement of Claim within 30 days. Mr. Im states that he was originally going to move for consent to file a Statement of Claim beyond the 30 day period, but that “upon further research” he has determined that proceeding by way of application and discontinuing the action “facilitates the just, most expeditious and least expensive disposition of the proceeding.”
[2] It is clear that Mr. Im does not understand the legal and procedural consequences of discontinuing a claim based on events which took place in July, 2013, and attempting to start a fresh application in 2017.
The Respondents
[3] Mr. Im has filed an affidavit of service indicating that all of the defendants were served within the 14 day period required under Rule 37.12(4). None of the defendants have filed materials on this motion. Under that Rule, the defendants were entitled within ten days of receipt of the motion materials to file written materials, and to file a notice requiring oral argument (subsection 5). None of them did so.
Responsibility to the Self-Represented Litigant
[4] None of the defendants have filed materials, and the motion has been brought in writing. This puts the court in a difficult position, given that Mr. Im is self-represented. I have carefully considered my obligations toward the self-represented plaintiff. Judges have a responsibility to ensure that self-represented persons are provided with fair access and equal treatment by the courts, and to facilitate access to justice. There are limits to the assistance which a judge may provide: a judge must always remain neutral and impartial, and balance fairness to all the parties. A judge cannot become an advocate, provide legal advice, advance new arguments for the self-represented litigant or advise on strategy.
[5] On the other hand, the Canadian Judicial Council’s “Statement of Principles on Self-Represented Litigants and Accused Persons”, which are advisory in nature, state that:
Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.
Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented parties. (emphasis added)
The Principles also state that a judge may “provide information about the law” in appropriate circumstances.
[6] Mr. Im is about to make a “critical choice”, based on a clear misunderstanding of the law and procedure. In the circumstances, I believe that I have a responsibility as a judge to explain the relevant law and its implications, remaining sensitive to the interests of the respondents.
[7] The respondents chose not to participate in the motion, as is their right. If Mr. Im brings a motion to extend time for filing of the Statement of Claim, the respondents have all of their rights and may oppose that motion. Failing to advise Mr. Im of the procedural issues and the critical choice, however, would in my view have led him to relinquish a potentially important right based on a misunderstanding of the relevant law and its implications, and procedural choices available to him.
[8] I explain the relevant law and procedure relating to the critical choice facing Mr. Im in the next section.
My Explanation to Mr. Im About His Critical Choice
[9] Mr. Im, you commenced a proceeding by way of Notice of Action in July, 2015, but you failed to file a statement of claim within 30 days. You have sought, but did not obtain, consent of all the defendants to file the statement of claim beyond the thirty day period. You understand that you have the right to make a motion to a court under Rule 14.03(3) for leave to file a late statement of claim.
[10] However, your materials on this motion say that based on your further research, you have decided to change your approach, since in your view an application would be a more expeditious means to resolve the claim. Therefore, you have come to court seeking leave to discontinue your action so that you can start an application against the same parties, based on the events of July, 2013, which is when you say the cause of action arose.
[11] You should be aware that there is a limitation period which will likely prevent you from being able to proceed with a new application. From your materials, it is clear that you understand something about statute-barred claims and limitation periods, but it is not clear whether you understand that a limitation period also applies to applications. Limitation periods are something you should obtain legal advice about, but generally in Ontario, the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B provides that in most cases, a proceeding shall not be commenced more than two years after the day on which the claim is discovered. Since you say the claim was discovered in July, 2013, if you were to start a new application in 2017, your claim would likely be prevented from proceeding because the limitation period has expired.
[12] Without in any way commenting on the likely success of a motion, it is important for you to recognize that you have an existing right, in the action you have commenced, to apply to a court for leave to file a statement of claim late, under Rule 14.03(3). If you discontinue your present action, you will lose this existing procedural right.
[13] In addition, there is another procedural avenue you should be aware of, if you are now of the view that an application is the appropriate route. If you bring a motion to extend time for filing the statement of claim, and it is granted, you could then apply to convert the action to an application.
[14] Therefore, the decision you make now about whether to apply to a court for leave to late-file the claim, or instead to discontinue the claim completely and commence an application, is a critical choice.
[15] You are encouraged to seek the advice of a lawyer on this issue. You may also go to the Pro Bono Law Ontario Office on the main floor at 393 University Avenue and show them this decision, to see if they can provide you with additional legal information that will help you make this critical choice.
[16] I also note that you have sought leave from this court to discontinue your action pursuant to Rule 23.01(2), as a person under a disability. You state in your affidavit that you are on long-term disability, and provide evidence regarding your LTD insurer. However, the meaning of a person under a disability for the purposes of court proceedings is different than disability for insurance purposes. Section 1.03 of the Rules provide that disability means that a person “is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding.”
[17] Essentially, a disability under the rules means that a person is incapable of managing property, or incapable of making personal care decisions. Section 6 of the Substitute Decisions Act, 1992 deals with incapacity to manage property. It says that a person is incapable of managing property if the person “is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” Section 45 of the Substitute Decisions Act, 1992 deals with incapacity for personal care, and says that “a person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
[18] There is nothing in the materials that you have filed that indicates you are incapable of managing property or personal care. Therefore, there is nothing to indicate to me that you are a person under a disability within the meaning of the Rules of Civil Procedure.
[19] Therefore, Mr. Im, you do not require leave of the court to discontinue your action and attempt to proceed by way of application. However, I have explained the relevant law and its implications to you, and recommend that you receive further information from a lawyer or from Pro Bono Law Ontario before you make that critical choice.
[20] As you are not disabled, you do not require leave to discontinue this action. Therefore, I decline to grant leave to discontinue the action. You must now make the choice whether to discontinue the action and commence an application, or to proceed with a motion for late filing of a statement of claim.
[21] This matter has been in abeyance for years. I direct that if you decide to bring a motion to extend time for filing the statement of claim under Rule 14.03(3), you must serve and file that motion no later than February 6, 2017. That motion should be brought before a master and not before a judge. You must comply with the Rules, and provide affidavit evidence in a motion record to support the motion.
[22] I direct that if you decide to discontinue the action and bring an application, you must do so no later than February 6, 2017.
[23] The motions office is directed to provide this endorsement to all of the defendants.
Kristjanson J.
Date: January 4, 2017