COURT FILE NO.: CV-10-400395
DATE: 2023 12 19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALAMOS GOLD INC., Plaintiff
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STERLING O&G INTERNATIONAL CORPORATION, Defendant
AND RE: STERLING O&G INTERNATIONAL CORPORATION, Plaintiff by counterclaim
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ALAMOS GOLD INC., 939610 ONTARIO LIMITED and DENIS FLAMAND, Defendants by counterclaim
BEFORE: Associate Justice Todd Robinson
APPEARING: G. Thawani, representative of the defendant/plaintiff by counterclaim, Sterling O&G International Corporation
V. Toppings and N. Kharouba, for the plaintiff/defendant by counterclaim, Alamos Gold Inc., and the defendant by counterclaim, Denis Flamand
S. Hutt, for the defendant by counterclaim, 939610 Ontario Limited
HEARD: September 14, 2023 (by videoconference)
REASONS FOR DECISION (Leave to be Represented by Non-Lawyer)
[1] Sterling O&G International Corporation (“Sterling”) brings this motion seeking leave for it to be represented by Govind Thawani, Sterling’s sole director, officer, and shareholder. The motion is opposed by Alamos Gold Inc. (“Alamos”) and Denis Flamand. That opposition is supported by 939610 Ontario Limited.
[2] I am satisfied that, having regard to the relevant factors set out in the established case law, and in the circumstances of this case, it is appropriate that Mr. Thawani be granted leave to represent Sterling. Leave is accordingly granted for him to do so.
Analysis
[3] Subrule 15.01(2) of the Rules of Civil Procedure, RRO 1990, Reg 194 provides that a party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court. Sterling has the onus of satisfying me that leave ought to be granted for Mr. Thawani to represent it in the circumstances of this case.
[4] Granting leave for a corporation to be represented by a non-lawyer is a discretionary decision. Each case turns on its facts, but case law has established a number of factors to be considered in these motions. As set out in Extend-A-Call Inc. v. Granovski, 2009 ONSC 33047, at para. 19, and subsequent cases, those factors include the following:
(a) whether the proposed representative has been duly authorized by the corporation to act as its legal representative;
(b) whether the proposed representative has a connection to the corporation;
(c) the structure of the corporation in terms of shareholders, officers and directors and whether it is a closely held corporation;
(d) whether the interests of shareholders, officers, directors, employees, creditors and other potential stakeholders are adequately protected by the granting of leave;
(e) whether the proposed representative is reasonably capable of comprehending the issues in the litigation and advocating on behalf of the corporation; and
(f) whether the corporation is financially capable of retaining a lawyer.
(a) Does Mr. Thawani have a connection to Sterling and what is its corporate structure?
[5] I am satisfied that Mr. Thawani has a clear connection to Sterling and is currently its sole decision-maker. Mr. Thawani’s affidavit supports historic involvement in the business with his parents since he was young. He is currently the sole director, officer, and shareholder of Sterling. Regardless of whether others were previously the shareholder and director, a certificate of revival for Sterling dated June 15, 2023, which was tendered in Mr. Thawani’s reply affidavit, supports that Mr. Thawani is now the sole director and sole shareholder of Sterling. In any event, in his capacities as sole director and officer, Mr. Thawani has day-to-day decision-making authority for the corporation.
(b) Has Mr. Thawani been duly authorized by Sterling to act as its legal representative?
[6] Alamos and Mr. Flamand argue that Mr. Thawani has tendered no evidence that Sterling has authorized Mr. Thawani to act on its behalf other than Mr. Thawani’s bald assertion that he has been authorized. This is an argument of form over substance. Since I am satisfied that the record supports that Mr. Thawani is the sole director, officer, and shareholder of Sterling, I do not view it as necessary to have evidence of any formal corporate resolution or other document made by Mr. Thawani in his corporate capacities authorizing Mr. Thawani in his separate, personal capacity to represent Sterling. Sterling is corporation wholly owned and controlled by Mr. Thawani. I am satisfied that he has authority on behalf of the corporation to authorize himself to act on its behalf in this litigation irrespective of whether any formal authorization has been papered.
(c) Are interests of shareholders, officers, directors, employees, creditors, and other potential stakeholders adequately protected if leave is granted?
[7] Mr. Thawani argues that his own interests are the only interests affected by leave being granted. Nothing before me supports that the interests of any stakeholders are inadequately protected or would be detrimentally impacted if leave is granted for Mr. Thawani to represent Sterling. As its sole director, officer, and shareholder, Mr. Thawani interests are the ones primarily affected and, on the record before me, are the only ones in need of being protected. Mr. Thawani is willing and prepared to act on the corporation’s behalf.
(d) Is Mr. Thawani reasonably capable of comprehending the issues in this litigation and advocating on behalf of Sterling?
[8] Alamos and Mr. Flamand submit that I should have regard to the fact that this is a complex, multi-party lawsuit in which Sterling has counterclaimed against Alamos, Mr. Flamand, and 939610 Ontario Limited for $300 million in damages. They argue that granting leave would compromise fairness, undermine the administration of justice, and prevent the just, most expeditious and least expensive determination of the proceeding, particularly since Mr. Thawani is the key, if not only, witness for Sterling and there are issues of credibility that will need to be decided at trial. I am unconvinced by these arguments.
[9] The quantum of a claim does not itself make it complex. No convincing argument was made for why Mr. Thawani is not capable of comprehending any complexities of this case or advocating for Sterling about them. The fact that Mr. Thawani is a key witness whose credibility will be in dispute is not, in my view, a dispositive factor. If Sterling continues to be represented by a lawyer, then Mr. Thawani will still be entitled to be present at all stages of this proceeding and would be the person instructing that lawyer. I am unconvinced that Mr. Thawani’s role as a witness conflicts with a role representing Sterling directly (as compared with providing all necessary instructions and directions to Sterling’s lawyer).
[10] Alamos and Mr. Flamand sought to draw a parallel to concerns with lawyers acting as advocates and witnesses in the same proceeding. However, in my view, those concerns are more particular to lawyers and stem from the various different professional obligations of lawyers to each of their clients, opposing counsel, and the court. Those concerns are not equivalent when dealing with a non-lawyer in a single-person corporation acting as both advocate and witness.
[11] Mr. Thawani submits that he has been involved in cases in the Manitoba courts on behalf of Sterling and has been involved in all steps of this litigation. I agree with Alamos and Mr. Flamand that there is no cogent evidence on Mr. Thawani’s specific role in the Manitoba proceedings or the nature of those proceedings. I also accept that participating in this action on behalf of Sterling is not the same role or experience as acting akin to a lawyer.
[12] Nevertheless, Mr. Thawani handled himself ably on the motion before me, speaking articulately and showing both an understanding of the relevant factors being argued and appropriate respect to the court and its processes. Although the materials prepared by Mr. Thawani do not fully comply with evidentiary rules and include certain unsubstantiated allegations, I have seen many lawyers prepare similar motion affidavits. Mr. Thawani’s submissions on the motion were, in my view, well-prepared and organized. Mr. Thawani is also sufficiently knowledgeable about this case.
[13] I am unconvinced that examples of late-serving materials, confusion over the motion return date, and failing to confirm this motion on time support that Mr. Thawani is incapable of representing Sterling. Frankly, it is sadly not uncommon for lawyers to fail to comply with timetable orders and the same procedural rules.
[14] In my view, Mr. Thawani has demonstrated that he is capable of comprehending the issues in this litigation and advocating on behalf of Sterling.
(e) Is Sterling financially capable of retaining a lawyer?
[15] I agree with Alamos and Mr. Flamand that there is no evidence supporting that Sterling is financially incapable of retaining a lawyer. The fact that Sterling has been represented in this action by a series of lawyers suggests the contrary. However, I am not satisfied that whether or not Sterling has the finances to retain a lawyer is a relevant factor in this particular motion.
[16] Individuals are able to represent themselves as of right, while corporations are not. However, as stated by Boswell J. in Extend-A-Call Inc., supra, at para. 18, “where the corporation is closely held and there is a sole director, officer and shareholder, it is hard to justify not allowing that individual to represent the company in view not only of the right of individuals to represent themselves, but the prevalence of individuals representing themselves in our courts.”
[17] Sterling is a single-person company. Practically, there is no meaningful difference between such a corporation and an individual. Even if Sterling is financially capable of retaining a lawyer (and on the record there is nothing suggesting otherwise), I see no principled reason to require Sterling to be represented by a lawyer when all other factors favour granting leave to be represented by a non-lawyer and Sterling’s sole director, officer and shareholder, Mr. Thawani, would be entitled as of right to represent himself if he were the named party.
[18] In my view, considering the relevant factors, it is in the interests of justice that Sterling be granted leave to be represented by Mr. Thawani. If that changes or proves to be inaccurate, it will remain open to the court to revisit the issue of leave and potentially revoke it.
Disposition
[19] For the above reasons, leave is hereby granted to Sterling to be represented by the non-lawyer, Mr. Thawani.
Costs
[20] Costs outlines have been exchanged. I encourage the parties to settle costs of the motion. If they cannot agree, then written costs submissions shall be exchanged. Sterling shall serve its costs submissions by January 5, 2024, clearing identifying the quantum of costs requested and against which parties costs are sought. Responding costs submissions shall be served by January 17, 2024. There shall be no reply submissions absent leave of the court. Costs submissions shall not exceed four (4) pages, excluding any offers to settle and case law.
[21] Once served, all costs submissions shall be submitted by email directly to my Assistant Trial Coordinator, Christine Meditskos, with proof of service. Unless exchanged and submitted in accordance with the above, the parties shall be deemed to have agreed on costs.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: December 19, 2023