Court File and Parties

COURT FILE NO.: CV-18-00611674 MOTION HEARD: 20190409 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Sykes and Stephanie Sykes, Plaintiffs AND: All Tech Mechanical Ltd., Defendant

BEFORE: Master B. McAfee

COUNSEL: Hossein Assadpour, In Person, for the Defendant Patricia M. Hill, Counsel for the Plaintiffs

HEARD: April 9, 2019

Reasons for Decision

[1] This is a motion brought by the defendant corporation for leave to be represented by Hossein Assadpour, a non-lawyer.

[2] The plaintiffs oppose the motion.

[3] For the reasons that follow, leave is granted to the defendant to be represented by Hossein Assadpour, a non-lawyer.

[4] The applicable Rule is Rule 15.01(2) of the Rules of Civil Procedure:

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] This is a subrogated claim brought pursuant to the Simplified Procedure. The claim arises as a result of a basement flood. The day prior to the flood, the defendant attended at the plaintiffs’ home to conduct repairs to the boiler. The defendant denies any negligence and pleads in part that the cause of the loss is a manufacturer’s defect.

[6] Notwithstanding Rule 76.04(1)2 the plaintiffs cross-examined Mr. Assadpour on his affidavit delivered in support of this motion. Mr. Assadpour attended the cross-examination by agreement.

[7] The statement of claim was issued on December 27, 2018. The statement of defence is dated February 21, 2019. The defendant proceeded with this motion early in the proceeding.

[8] In exercising its discretion pursuant to Rule 15.01(2), 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, citing Extend-a-Call v. Granovski, [2009] O.J. No. 2711:

(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.

[9] 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.

[10] The onus is on the defendant 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 will now turn to the factors.

(i) Whether the proposed representative has been duly authorized by the corporation

[11] The defendant is the sole officer, sole director and sole shareholder of the defendant. I am satisfied that Mr. Assadpour is duly authorized by the corporation.

(ii) Whether the proposed representative has a connection to the corporation

[12] Mr. Assadpour is the sole officer, sole director and sole shareholder of the corporation. There are no other employees. I am satisfied that Mr. Assadpour has a connection to the corporation in these circumstances.

(iii) Whether the corporation is a closely held corporation

[13] As Mr. Assadpour is the sole officer, sole director and sole shareholder of the corporation, I am satisfied that the corporation 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

[14] Mr. Assadpour is the sole officer, sole director and sole shareholder of the corporation. There are no other employees. 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

[15] When requested by plaintiffs’ counsel, Mr. Assadpour agreed to be cross-examined on his affidavit. He did not refuse any questions on his cross-examination. He complied with the undertaking given on his cross-examination that took place only five days prior to the motion. Although I did not permit Mr. Assadpour to “walk in” the documents, he brought the documentation to the hearing as plaintiffs’ counsel requested.

[16] Mr. Assadpour has obtained assistance from LawHelpOntario at 393 University Avenue, Toronto.

[17] Mr. Assadpour was well prepared for the motion, organized and made submissions in support of the relief requested. His conduct on the motion was respectful of the court process.

[18] I am satisfied that Mr. Assadpour passes the not too high threshold required to establish that he is reasonably capable of comprehending the issues in the litigation and advocating on behalf of the corporation.

(vi) Whether the corporation is financially capable of retaining counsel

[19] With respect to this last factor, I adopt the reasons of Justice Quinn in Lamond v. Smith (Ont. S.C.J.) at paragraph 10 and as cited in De La Rocha at paragraph 4. Justice Quinn held that impecuniosity may be one reason why leave should be granted, but it is not a necessary reason. Justice Quinn did not see why the ability to afford a lawyer should be a relevant factor. Justice Quinn states that “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.”

[20] I am not satisfied that this is a relevant factor in the circumstances before me. If I am wrong and this is a relevant factor, I am satisfied that the corporation is financially incapable of retaining counsel. The evidence before me is that the only asset owned by the corporation is a 2010 or 2011 cargo van worth approximately $3,000. and some tools. While Mr. Assadpour owns a condominium in his personal capacity, there is a mortgage on title. His evidence on cross-examination was that the defendant had insurance until two or three months before the incident in question. Mr. Assadpour was injured in an accident and had to cancel the defendant’s insurance coverage because he could not afford it.

[21] Having regard to the relevant factors and the circumstances of this proceeding, it is in the interests of justice that the defendant be granted the leave sought.

Costs

[22] The defendant did not seek costs of the motion. The plaintiffs only sought costs of the motion if the plaintiffs were successful on the motion. There shall be no costs of the motion.

Summary of Order

[23] Order to go as follows:

1. Leave is granted to the defendant to be represented by Mr. Assadpour, a non-lawyer.
2. There shall be no costs of the motion.

Master B. McAfee Date: April 10, 2019