Date: 20040630
Docket: T-519-04
Citation: 2004 FC 946
Toronto, Ontario, June 30th, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
BELARUS TRACTOR OF CANADA
Plaintiff
and
ADVANTAGE TRADE GROUP INC., ANDREW SNUR, ANDREY SNURNITSIN,
ANDREY SEMENOV, SEMEN SERGEEV and JANE DOE AND JOHN JOE and
OTHER PERSONS, NAMES UNKNOWN, WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, PRINT, DISTRIBUTE, ADVERTISE, PROMOTE, SHIP, STORE,
DISPLAY OR OTHERWISE DEAL IN UNAUTHORIZED OR COUNTERFEIT
BELARUS PRODUCTS
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Defendants Advantage Trade Group Inc. and Andrey Snurnitsin for an Order allowing the Defendant Andrey Snurnitsin, a non lawyer, to act on behalf of the Defendant Advantage Trade Group Inc. and for an order removing Andrey Snurnitsin as a Defendant.
[2] The underlying action is a trade mark action. The Plaintiff has obtained an Anton Pillar Order.
[3] The Defendant Snurnitsin filed an affidavit in support of the motion. In the affidavit the Plaintiff stated that he was the President of the Defendant Advantage Trade Group Inc. an incorporated company. He stated that he signed contracts on behalf of the company but he did not sign any sales contracts. He also stated that he personally paid bills for the company and that all actions taken by him were made on behalf of the company and not as Andrey Snurnitsin personally.
[4] The Defendants in this motion, have filed a defence to the Statement of Claim.
Issues
[5] 1. Should an Order issue authorizing Andrey Snurnitsin to act on behalf of the Defendant Advantage Trade Group Inc.?
2. Should an order issue removing Andrey Snurnitsin as a Defendant?
Decision and Order
Issue #1: Should an Order issue authorizing Andrey Snurnitsin to act on behalf of the Defendant Advantage Trade Group Inc.?
[6] Rule 120 of the Federal Court Rules, 1998 states:
120. Corporations or unincorporated associations - A corporation, partnership or unincorporated association shall be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave to it to be represented by an officer, partner or member, as the case may be.
[7] In Source Seville Corp. v. Source Personnel Inc. [1995] F.C.J. No. 1658 (Q.L.) (FCTD) Rouleau J. when speaking of former Rule 300(2) of the Federal Court Rules stated at paragraphs 4, 5, 6, 7 and 8:
_ 4 Firstly, the onus of "special circumstances" imposed by Rule 300(2) of the Federal Court Rules is a high onus which requires that clear and unambiguous evidence be before the Court before it will exercise its discretion to grant an exception to the general rule that a corporation shall be represented by a barrister and solicitor. The evidence filed by the Defendant did not meet this high threshold.
_ 5 Secondly, the test of "special circumstances" means circumstances that are unusual, uncommon and exceptional and the result of external forces as distinct from the voluntary acts of the Defendant. There was no evidence of "special circumstances" filed by the Defendant.
_ 6 Thirdly, the two essential pre-conditions, namely (1) that Mr. Kichuk was authorized by the corporation to represent it; and (2) that the corporation was impecunious; were not met by the evidence filed by the Defendant.
...
_ 8 Lastly, to establish "impecuniosity", the Defendant was required to show not only that it did not have sufficient assets itself, but also that it could not raise the necessary funds from its shareholders. There was no evidence before the Court concerning the impecuniosity of the Defendant's shareholders.
The current Rule 120 also calls for special circumstances.
[8] In S.A.R. Group Relocation Inc. et al. v. Canada (Attorney General) (2002), 289 NR 161 (F.C.A.), a case dealing with a corporate defendant seeking to have the president represent it instead of a lawyer, pursuant to Federal Court Rule 120 Strayer J.A. stated at page 164:
...
The ground for seeking such an order is that the applicants can no longer afford to hire a lawyer to represent them.
[2] For the court to make such an order in these circumstances it must be satisfied that the corporations are truly unable to pay for a lawyer and that the person sought to be allowed to represent them has indeed been authorized by the corporations to represent them. (Source Services Corp. v. Source Personal Inc. (1995), 105 F.T.R. 42 (T.D.); NsC Diesel Power Inc. (Bankrupt), Re (1995), 96 F.T.R. 161 (T.D.)). There is no clear evidence here on either point. Further, it is relevant to consider whether the proposed representative would also be a witness, as counsel cannot appear in cases where they are witnesses. (See Kobetek Systems Ltd. v. Canada, [1998] F.T.R. Uned. 9; [1998]1 C.T.C. 308). In the present application for judicial review Susan A. Ryan has filed a purported affidavit (not yet sworn) which indicates she expects to be the principal witness as well as acting in role of counsel. This is another circumstance which militates against the court making an order under Rule 120.
[3] The motion will therefore be dismissed without costs.
[9] The jurisprudence establishes that there must be clear evidence presented by the Defendants to persuade the Court to exercise its discretion to grant an exception and allow the Corporate Defendant to be represented by a person who is not a lawyer. I have reviewed the affidavit filed by the Defendants and there is no reference to the Defendant Advantage Trade Group Inc. not being able to pay for a lawyer. The Defendant Andrey Snurnitsin in oral argument, stated that the company could not afford a lawyer but there is no affidavit evidence to support this argument.
[10] There is no evidence on which I could grant the Defendant's motion to allow him to represent the Defendant Advantage Trade Group Inc. The Defendant has not presented the evidence of "special circumstances" which would allow me to grant his motion. I am however satisfied that he had the Corporate Defendant's authorization to represent it.
[11] The portion of the Defendant's motion to have Andrey Snurnitsin represent the Defendant Advantage Trade Group Inc. instead of a lawyer is dismissed.
Issue #2: Should an order issue removing Andrey Snurnitsin as a Defendant?
[12] The Defendant Andrey Snurnitsin also asks to be removed as a Defendant because he is only an employee of the company and the company is the entity that is carrying on business. A review of the statement of defence (paragraphs 1, 6, 7, and 8) discloses that the Defendants admit that both Advantage Trade Group Inc. and Andrey Snurnitsin are involved in the importing and advertising of the "Belarus" brand of tractors. This is a formal admission by the Defendants which can only be withdrawn with the leave of the Court or the consent, in this case, of the Plaintiff. I am not prepared to allow the Defendant Andrey Snurnitsin to be removed as a Defendant. This portion of the motion is dismissed.
[13] The Plaintiff shall have its costs of the motion.
ORDER
THIS COURT ORDERS that
1. The Defendants' motion to have Andrey Snurnitsin act on behalf of Advantage Trade Group Inc., instead of a lawyer is dismissed.
2. The Defendant's motion to have Andrey Snurnitsin removed as a Defendant is dismissed.
3. The Plaintiff shall have its costs of the motion.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-519-04
STYLE OF CAUSE: BELARUS TRACTOR OF CANADA
Plaintiff
and
ADVANTAGE TRADE GROUP INC., ANDREW SNUR, ANDREY SNURNITSIN, ANDREY SEMENOV, SEMEN SERGEEV and JANE DOE AND JOHN JOE and
OTHER PERSONS, NAMES UNKNOWN, WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, PRINT, DISTRIBUTE, ADVERTISE, PROMOTE, SHIP, STORE,
DISPLAY OR OTHERWISE DEAL IN UNAUTHORIZED OR COUNTERFEIT BELARUS PRODUCTS
Defendants
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 28, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
APPEARANCES BY:
Mr. Peter Kappel
FOR THE PLAINTIFF
Mr. Andrey Snurnitsin
FOR THE DEFENDANTS, ON THEIR OWN BEHALF
Page: 2
SOLICITORS OF RECORD:
Hofbauer Associates
Toronto, Ontario
FOR THE PLAINTIFF
Andrey Snurnitsin
Toronto, Ontario
FOR THE DEFENDANTS, ON THEIR OWN BEHALF
FEDERAL COURT
Date: 20040630
Docket: T-519-04
BETWEEN:
BELARUS TRACTOR OF CANADA
Plaintiff
and
ADVANTAGE TRADE GROUP INC., ANDREW SNUR, ANDREY SNURNITSIN,
ANDREY SEMENOV, SEMEN SERGEEV and JANE DOE AND JOHN JOE and
OTHER PERSONS, NAMES UNKNOWN, WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, PRINT, DISTRIBUTE, ADVERTISE, PROMOTE, SHIP, STORE,
DISPLAY OR OTHERWISE DEAL IN UNAUTHORIZED OR COUNTERFEIT
BELARUS PRODUCTS
Defendants
REASONS FOR ORDER
AND ORDER