COURT FILE NO.: CV-11-5073
DATE: 2022/09/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Denis Leblanc and Ann Carr
Plaintiffs
– and –
The Personal Insurance Company, Knight Piesold LTD., Wagg’s Petroleum Equipment Limited, Golden Environmental Services Inc., Ferns Heating Inc., Merlex Engineering LTD., Ultramar LTD.
Defendants
– and –
Golden Environmental Services Inc.
Plaintiff By Counterclaim
– and –
Denis Leblanc and Ann Carr
Defendant By Counterclaim
Self-represented
Peter C. Card, for the Defendant/Plaintiff by Counterclaim, Golden Environmental Services Inc.
HEARD: In Writing
REASONS FOR DECISION ON MOTION
Ellies R.S.J.
[1] Peter Card moves to be removed as lawyer of record for Golden Environmental Services Inc. (“Golden”) under r. 15.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. At the same time, Ronald Trivett, the sole share holder of Golden, seeks leave to represent the corporation under r. 15.01(2).
[2] For the following reasons, Golden’s motion is dismissed, and Mr. Card’s motion is adjourned for 30 days.
[3] The motion is brought in the context of an action in which the plaintiffs claim $2,000,000 for damages relating to a fuel oil leak from a tank on their residential property in 2009. The plaintiffs allege that Golden was negligent in its attempts to remediate the physical damage caused by the leak, which attempts allegedly included the use of hydrogen peroxide. Golden denies being negligent, crossclaims against a number of co-defendants, and counterclaims against the plaintiffs for roughly $48,000 in unpaid invoices for services rendered.
[4] The claims against all the other defendants have been resolved. Golden’s counterclaim is the only claim remaining.
[5] Rule 15.01(2) requires that a party to a proceeding that is a corporation must be represented by a lawyer, except with leave of the court. Representation is the rule, not the exception.
[6] In Leisure Farm Construction Limited v. Dalew Farm Inc. et al, 2021 ONSC 105, I reviewed the cases relating to requests to allow non-lawyers to represent corporations. I expressed concern with the reasoning behind cases in which courts allowed shareholders to represent small, closely-held corporations on the basis that the corporation is merely the shareholder’s alter ego. I summarized my concerns in para. 15, where I wrote:
With respect, these two consequences — the fact that the court is allowing a non-lawyer to represent another litigant and the fact that the representative does not face the same personal financial consequences that normally inform and constrain litigation decision-making — make the company’s financial ability to hire a lawyer more important than my colleagues in Lamond [v. Smith, 2004 CanLII 6218 (ON SC), 2004 CarswellOnt 3213] and Murphy [v. Stefaniak, 2014 ONSC 4396 (Ont. S.C.)] would suggest. If the company can afford to hire a licensed legal practitioner, then there is no need to ignore the corporate veil and allow the company to be represented by a non-lawyer. If the company cannot afford to hire a lawyer, or has no insurer willing to do so, then at the very least, this should inform everyone involved, including the court, when it comes to determining the access to justice and proportionality issues referred to in r. 1.04 and by my colleague Boswell J. in De La Rocha [v. Markham Endoscopy Diagnostics Inc., 2010 ONSC 5100 (Ont. S.C.)].
[7] Even if I was inclined to follow those cases that have given little or no weight to the consequences referred to above, I would not grant leave to allow Mr. Trivett to represent Golden in this case.
[8] One of the key reasons courts have allowed closely-held corporations to be represented by their shareholders is cost. As Boswell J. wrote in Extend-A-Call v. Granovski, 2009 CarswellOnt 3754 (Ont. S.C.J.), 2009 CanLII 33047, at para. 19:
It is fundamental to integrity of the courts and the reputation of the administration of justice that 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] I have no evidence before me about Golden’s ability to afford a lawyer. The notice of motion simply states that Golden “is unable or unwilling” to meet its present lawyer’s retainer requirements. Mr. Trivett’s affidavit, at para. 7, states only that “either [he] or Golden [have] paid many thousands of dollars in legal fees in these proceedings, and would prefer to avoid further legal expenses if at all possible.”
[10] Mr. Trivett deposes, at para. 8 “that the primary issue remaining is a relatively simple one, i.e. whether or not the plaintiffs are liable to pay Golden on the single remaining invoice rendered to them through their insurer in June 2010.” I do not agree that the issue is simple. Because the plaintiffs allege that Golden was negligent and, therefore, breached its contract with them, the success of the counterclaim likely depends upon whether the remediation of the plaintiffs’ property was successful. In essence, despite the fact that all of the other claims have been resolved, the central issue remains: was the remediation performed correctly? That issue is anything but a simple one.
[11] For these reasons, leave to allow Mr. Trivett to represent Golden is denied. Given my decision in this regard, Mr. Card’s motion will be adjourned for 30 days. Unless the court is advised by Mr. Card that his retainer has been satisfied or a notice of change of lawyer is filed within that time, Mr. Card shall be removed as counsel and Golden’s counterclaim shall be dismissed under r. 15.04(7) for failing to comply with r. 15.04(6).
M. Gregory Ellies R.S.J.
Released: September 9, 2022
COURT FILE NO.: CV-11-5073
DATE: 2022/09/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Denis Leblanc and Ann Carr
Plaintiffs
– and –
The Personal Insurance Company, Knight Piesold LTD., Wagg’s Petroleum Equipment Limited, Golden Environmental Services Inc., Ferns Heating Inc., Merlex Engineering LTD., Ultramar LTD.
Defendants
– and –
Golden Environmental Services Inc.
Plaintiff By Counterclaim
– and –
Denis Leblanc and Ann Carr
Defendant By Counterclaim
REASONS FOR decision ON MOTION
Ellies RSJ
Released: September 9, 2022