BNP Paribas (Canada) v. Bartlett Investments Limited et al, 2011 ONSC 3611

CITATION: BNP Paribas (Canada) v. Bartlett Investments Limited et al, 2011 ONSC 3611 BNP Paribas (Canada) v. Donald S. Bartlett Investments Limited et al. Court File No. 46926/90 Parties: D. Bartlett Sr, for himself J. Sirivar, counsel for the plaintiff D. Bartlett Jr, for himself REASONS FOR DECISION These are my reasons for the dismissal of the motion by the defendant, Donald Bartlett Sr (“Sr”), in which he seeks leave of the court torepresent the defendant, Donald S. Bartlett Investments Limited (“Investments”). The motion is opposed by the plaintiff and by thedefendant, Donald Barlett Jr (“Jr”).

The motion is brought pursuant to r. 15.01(2) of the Rules of Civil Procedure. The court considers a number of factors including whetherthe moving party is a senior officer or a director of the corporation, whether the moving party has been authorized by the corporation tobring the motion and assume responsibility for the litigation, the complexity of the action, whether it is unfair to the parties to the actionif the corporation is represented by a non-lawyer and whether the proposed representative is capable of discharging the duties of thecorporation as a litigant. See 419212 Ontario Ltd. v.

Astrochrome Crankshaft Toronto Ltd. (1991), (ON SC), 3 OR(3d) 116 (Gen Div) at para. 13. I dismissed the motion for the primary reason that there is no evidence to support that Sr is properly authorized by Investments to bringthe motion or to represent its interests in the litigation. It is also clear that the corporate governance of Investments is a live issue and, in particular, as to which of Sr and Jr controlsInvestments. Investments is a corporate entity of which the individual defendants to this action are equal shareholders, at least as of thedate of the hearing of the motion.

Counsel for the individual defendants, save Sr and Jr, advised the court that they intended to surrendertheir shares in Investments. Thus, Sr and Jr would appear to be the remaining shareholders of Investments. They are embroiled inlitigation commenced by Sr in 2004 as to the validity and enforceability of a loan agreement and security pledged in support thereof. Itis pursuant to this security, as I understand matters, that Jr alleges that he retains the voting rights in Investments.

It is inappropriategiven the uncertain state as to which of Sr and Jr controls Investments to confer rights and obligations upon Sr, who may possibly takesteps and make decisions that are contrary to the legitimate interests of Investments and to the detriment of Jr. Additionally, I am concerned that there exists a conflict of interest as between Sr and the remaining individual defendants, all of whomare shareholders of Investments. The shareholders, save Sr and Jr, are the sisters and spouse of Sr. They claim that Sr exerted duressand undue influence when they executed guarantees.

Sr is adverse in interest to Jr in the 2004 litigation. It is simply unacceptable thatSr would in these circumstances be granted leave to represent the interests of Investments. I am also concerned that the order, if granted, would be unfair to the plaintiff and the remaining defendants. Sr resides outside of thisprovince and that distance has negatively impacted the conduct of the case, resulting in missed filings, missed hearing dates andconsequent delays.

It was clear to the court that Sr relied heavily on the services and assistance of a person in Toronto, whose preciserelationship was unclear, to attend to filings and other tasks with the court. I am not at all confident that Sr is capable of discharging theobligations of Investments as a litigant. I have issued the order respecting the disposition of the motion.

Master M. Jean Sproat June 8, 2011