Court File and Parties

COURT FILE NO.: CV-14-1027-00 DATE: 20190503 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 6734111 CANADA INC. c.o.b. as HOME LIFE BUILDERS, Plaintiff Defendant by Counterclaim

AND:

YUEQIN GAO and SHIWEN HAN, Defendants Plaintiffs by Counterclaim

BEFORE: Barnes J.

COUNSEL: Rakesh Mohan for the Plaintiffs, Defendants by Counterclaim David A. Schatzker, for the Defendants, Plaintiffs by Counterclaim

HEARD: January 17, 2019

Endorsement

[1] The plaintiff’s motion for leave to permit Rakesh Mohan to personally represent it is dismissed.

Background Facts

[2] This is a Construction Lien matter. 6734111 Canada Inc. is the plaintiff. There are three construction liens registered against the home of Yueqin Gao and Shiwen Han (“the defendants”). The home has a municipal address of 1198 Garden Road, Mississauga, Ontario (“the property”). The liens are on the property because the plaintiff has been unable to settle the claims of tradespersons.

[3] The plaintiff’s counsel was removed from the record on July 20, 2018. The plaintiff did not comply with an order requiring it to appoint counsel within 30 days. The plaintiff also failed to comply with an order requiring it to answer undertakings and pay costs.

[4] On September 28, 2018, the defendants brought a motion seeking an order striking the action for failure to comply with the orders of the court. The court gave the plaintiff’s another opportunity to appoint counsel within 30 days. The plaintiff failed to comply with this order. The plaintiff is seeking leave to be represented by its Director, Rakesh Mohan; an order granting access to the property and an order allowing the plaintiff to hold discoveries.

[5] Neither party fully addressed the issues of access to property and discoveries, presumably because those matters are contingent on the outcome of the request for leave to have Rakesh Mohan represent the plaintiff.

Law

[6] The plaintiff is a corporation. Unless a court orders otherwise, a corporation’s legal representative must be a lawyer: Rule 15.01(2), Rules of Civil Procedure O.Reg. 575/07, s.6. (Rules) A non-lawyer seeking to represent a corporation must seek leave of the court. In determining whether leave will be granted the court must consider three factors:

1. Whether the person has the authority to make decisions to bind the corporation;
2. Whether the person is competent to fulfill the duties of a litigant under the Rules; and
3. Whether the nature of the action and issues raised are such that it would be unfair to the defendant to have the plaintiff represented by a non-lawyer: Ward v. 1221720 Ontario Ltd., 2015 ONSC 2015, paras. 3-4.

[7] Whether or not a corporation can afford a lawyer is not a factor in determining if leave should be granted: Almond v. Smith, [2004] O.J. No. 3255 (Ont. S.C.J.); Mirashraji v. Circuit Centre [2007] O.J. No. 2373 (Ont. S.C.J.).

Discussion/Analysis

[8] The plaintiff has failed to satisfy the criterion for granting leave to Mr. Mohan to represent the corporate plaintiff.

Authority to bind the corporation

[9] It is not disputed that Mr. Mohan has the authority to make decisions to bind the corporation. He is the founder of the corporation and the sole active director of the corporation.

Competence to fulfill the duties of a litigant under the Rules

[10] Mr. Mohan has a Bachelor of Law degree from the Agra University in India. He obtained this degree in 1988. He has been a Registered Advocate at Delhi Bar Council of India since 1984. He says he has practiced in Delhi courts in various capacities. In 1987, he obtained a Masters in Business Administration (MBA) from the College of Notre Dame in California. It is not disputed that he is not qualified or licenced to practice law in Ontario or in any Canadian Province.

[11] The plaintiff is a closely held corporation with two directors; Mr. Mohan and his spouse. Although the plaintiff is a separate legal entity, as the sole director Mr. Mohan directs its actions.

[12] The focus of the analysis is his competence to fulfill the duties of a litigant under the Rules: See Ward Supra, at paras 3-4. Familiarity with the facts of the case is not the test. The Plaintiff has a history of non-compliance with court orders as follows: 1) failure to comply with court orders to answer undertakings; 2) failure to seek leave for the plaintiff to be represented by a non-lawyer within the time specified by the court; and 3) failure to pay costs ordered by the court. These instances of non-compliance demonstrate Mr. Mohan’s inability to comply with the Rules.

[13] Mr. Mohan brought this motion under the wrong rule, Rule 15.02(1), instead of Rule 15.02(2). The material filed on this motion did not demonstrate an appreciation or understanding of the criteria for granting leave under Rule 15.02(2).

[14] Mr. Mohan submits that he is intimately familiar with the facts of this case. I accept this as fact. He is a founding and active director of the corporate plaintiff. He says that he is legally trained in India, a fact I also accept, however, there is no evidence that he is competent “to fulfill the duties of a litigant under the Rules”. On the contrary, there is evidence of failure to follow court direction and inadequacy of the material filed.

[15] This leads to the conclusion that the plaintiff has failed to demonstrate that Mr. Mohan is competent to fulfill the duties of a litigant under the Rules: Ward Supra at paras. 5-6. This finding resolves the issue on this motion, however, I shall consider the third criterion.

The effect and nature of the action and issues raised

[16] The nature of the action and the issues raised are such that appointing Mr. Mohan as the corporate plaintiff’s representative would be unfair to the defendants.

[17] This case involves litigation under the Construction Lien Act R.S.O. 1990, Chapter C. 30. This legislation creates technical rules, thus the case will have some complexity. There are three sheltered lien claimants. The plaintiff has provided Google searches to demonstrate that some of these claimants are no longer in business. Google search results are insufficient evidence to demonstrate that any of the three lien claimants are no longer in business or have no interest in this action.

[18] The plaintiff’s unfamiliarity with the Rules, the complexity of this case and the plaintiff’s alleged financial difficulty all indicate that representation by a person whose competence to fulfil the duties of a litigant under the Rules is in doubt, will prolong the trial and result in additional costs to the defendants. There is reason to doubt the defendants’ ability to recover any costs because of the plaintiff’s claim of inadequate financial resources. Thus, granting leave will be unfair to the defendants.

Conclusion

[19] The plaintiff has failed to discharge its onus and the motion is dismissed. Should the parties be unable to agree on costs, the defendant shall submit a cost outline within 15 days and the plaintiff shall submit their cost outline in reply within 30 days. Outlines shall be no more than 3 pages.

Barnes J. Date: May 3, 2019