Executive Summary: Key Legal and Evidentiary Issues

• Court’s power to dispense with Rule 15.01(1) so a corporate plaintiff acting as bare trustee may be represented by a non-lawyer (here, a retired lawyer beneficiary) in the interests of justice.
• Whether Canada Trust, as bare trustee with no financial stake, can properly be represented by Anthony Powell, the plan holder and sole beneficial litigant, despite the general prohibition on non-lawyers representing corporations.
• Impact of access-to-justice concerns where beneficiaries (the Powells) must fund and indemnify counsel but can no longer afford representation, contrasted with policy concerns about unauthorized practice of law and protection of other stakeholders.
• Procedural management issues concerning amendment of parties, validation of service, and ordering the mortgage enforcement action and related action to be tried together.
• Assessment and rejection of the defendants’ request for conditions (including security for costs) tied to any leave for Mr. Powell to represent the plaintiff.
• Residual issue of costs of the motions left open for written submissions, with no monetary amount yet fixed or ordered in the reasons.

Background and parties

This case arises from mortgage enforcement litigation connected to the retirement savings of Anthony Powell and his wife, Joan Powell. They invested their retirement funds through registered plans, advancing those funds to a group of corporate defendants and an individual defendant, Marino Rakovac, and they took mortgage security over various parcels of real property. The mortgages are registered in the name of The Canada Trust Company, which acts only as a bare trustee. The Powells are the plan holders and the sole beneficial owners of the rights under the mortgages, while Canada Trust has no financial interest in the outcome. Under their arrangement with Canada Trust, the Powells are exclusively responsible for retaining, instructing, and paying counsel to conduct any mortgage enforcement proceedings, and they must indemnify Canada Trust for any costs incurred in the litigation. The present action was commenced to enforce the mortgages, alleged to be in default. The defendants in this action are the corporate borrowers and Mr. Rakovac, and Glenrio Financing Limited is named as a subsequent encumbrancer, although it did not appear on these motions. A related proceeding exists in which the corporate defendants and Mr. Rakovac are plaintiffs and the Powells are defendants, concerning the same underlying mortgages.

Procedural posture and the motions before the court

Two motions came before the Ontario Superior Court of Justice. On the plaintiff’s side, Anthony Powell brought a motion seeking four main forms of relief: leave under Rule 15.01(2) of the Rules of Civil Procedure to represent the plaintiff, Canada Trust (a corporation); leave to amend the statement of claim to substitute 1322295 Ontario Ltd. for 13255595 Ontario Ltd.; an order to consolidate this action with the related action or, alternatively, to have them tried together; and an order validating service of the statement of claim. On the defendants’ side, the corporate defendants and Mr. Rakovac brought their own motion, essentially aimed at defeating or restricting Mr. Powell’s motion and, if leave to represent the plaintiff were granted, attaching conditions. They sought dismissal of Mr. Powell’s motion for leave and consolidation, refusal of consolidation or strict safeguards if the actions were tried together, an order delaying the plaintiff’s motion until all encumbrancers (including Glenrio, CRA, and others) were served and proof of service filed, and an order for security for costs, among other procedural protections.

Matters resolved on consent

During the hearing, several aspects of the plaintiff’s motion were resolved on consent. First, the defendants agreed to the amendment substituting 1322295 Ontario Ltd. for 13255595 Ontario Ltd. in the title of proceedings and throughout the statement of claim, and the court granted an order to that effect. Second, the defendants acknowledged that they were served with the statement of claim on November 4, 2025, and indicated they intended to deliver a statement of defence. The court therefore validated service as of November 4, 2025, and ordered that the defendants have 40 days from the hearing date (January 23, 2026) to deliver their defence. Third, Mr. Powell withdrew his request for a formal consolidation order and instead sought only that this action and the related action be tried together. The defendants consented to this alternative, and the court ordered that both actions be tried together, or sequentially one after the other, as the trial judge may direct.

Request for leave for Anthony Powell to represent the plaintiff

The only contested aspect of the plaintiff’s motion was Mr. Powell’s request to represent Canada Trust, the named corporate plaintiff. Ordinarily, Rule 15.01(1) requires that a party acting in a representative capacity (such as a trustee) be represented by a lawyer, and Rule 15.01(2) requires that a corporate party be represented by a lawyer, subject to leave in limited circumstances. In this case, Canada Trust is both a corporation and a trustee acting in a representative capacity pursuant to Rule 9.01(1), so the default rule is that it must appear by counsel. To accommodate Mr. Powell’s role, the court had to consider whether to use Rule 2.03 (which permits the court to dispense with compliance with the rules in the interests of justice) to relax the strict requirement in Rule 15.01(1), and then whether to grant leave under Rule 15.01(2) to allow a non-lawyer to represent the corporation.

Consents and support for Powell’s proposed role

Several key parties supported or did not oppose Mr. Powell’s request. The plaintiff’s existing counsel, Mr. Wellenreiter, consented in writing to an order granting leave to Mr. Powell to represent Canada Trust and expressly took no position on the consolidation or trial-together issue. Corporate counsel for Canada Trust filed a signed document indicating that Canada Trust did not oppose an order granting Mr. Powell leave to act on its behalf and did not oppose the actions being tried together. Ms. Powell also filed a signed consent to Mr. Powell’s representation of Canada Trust and to the trial-together order, and she granted him a power of attorney authorizing him to deal with the registered plans on her behalf. In addition to these consents, the court noted Mr. Powell’s professional background: he was called to the Ontario Bar in 1975, practiced litigation until his retirement in 2019, and had significant trial and procedural experience. His motion materials, factum, supplementary factum, and oral submissions were detailed, cogent, and supported by relevant authority, demonstrating his grasp of the issues.

Defendants’ objections and public policy arguments

The defendants, particularly Mr. Rakovac (who represented himself while the corporate defendants had counsel), opposed Mr. Powell’s request. They argued that the issues in the case were too complex for a non-lawyer; that public policy against the unauthorized practice of law should prevail; and that a non-party lay agent typically faces no personal cost risk, which could undermine procedural integrity and cost deterrence. They further contended there was no evidence of corporate authority from Canada Trust, that Mr. Powell’s dual role would create a conflict of interest, that the integrity of the title process might be affected, and that there was no adequate proof that Mr. Powell could not retain counsel. In the alternative, they requested that if leave were granted it should be subject to conditions, such as limiting Mr. Powell’s authority strictly to representing Canada Trust in its capacity as trustee and requiring trustee approval for any settlement.

Court’s analysis of the rules and access to justice

To resolve the leave issue, the associate justice analyzed the interaction between Rules 15.01, 15.02, and 2.03, and the line of appellate and Superior Court decisions addressing non-lawyer representation of corporations and estates. The court relied on authorities such as Scarangella v. Oakville Trafalgar Memorial Hospital, Selkirk v. Trillium Gift of Life Network, and Preiano v. Cirillo to establish that, in appropriate circumstances, strict compliance with Rule 15.01(1) can be dispensed with where it is necessary in the interests of justice and where concerns about non-lawyers acting for others are mitigated. The court also considered GlycoBioSciences Inc. v. industria Farmaceutica Andromaco S.A. de C.V. and Almos Gold Inc. v. Sterling O&G International Corp., which emphasize that granting leave under Rule 15.01(2) is exceptional and must not normalize non-lawyer representation of corporations. In those cases, factors include the representative’s connection with the corporation, the corporate structure (particularly whether it is closely held), the protection of other stakeholders, the proposed representative’s ability to manage the litigation, and the corporation’s ability to retain counsel.

Unique trust structure and the role of the Powells

The associate justice distinguished this case from typical closely held corporate situations. Canada Trust is not a private corporation owned by the Powells; rather, it is a bare trustee holding legal title to the mortgages for their exclusive benefit. The Powells are the only stakeholders with a financial interest in the enforcement proceedings. They are obliged to retain, instruct, and pay counsel and to indemnify Canada Trust for any litigation costs. Canada Trust itself has no financial stake and does not oppose Mr. Powell’s request. The Powells can no longer afford to pay counsel to continue, raising real access-to-justice concerns if strict compliance with the rules were enforced. Mr. Powell’s demonstrated litigation experience and the quality of his written and oral advocacy further reassured the court that he could competently manage the case and that permitting him to represent the plaintiff would not create undue burdens on the defendants or the court.

Rejection of the defendants’ objections and conditions

After weighing all circumstances, the court rejected the defendants’ arguments. It found that the issues were not too complex for Mr. Powell, particularly given his litigation background and the evidence of his capable advocacy. Any concern about personal cost risk was addressed by the Powells’ obligation to indemnify Canada Trust for costs incurred. The court accepted that the Powells could not afford counsel and noted that Canada Trust, its counsel of record, and Ms. Powell all supported Mr. Powell’s role. The associate justice did not accept arguments regarding unauthorized practice, conflicts, or impacts on title integrity as persuasive in the specific context of this bare trust arrangement and these particular proceedings. The court also declined to impose the conditions proposed by the defendants. It was not referred to authority requiring such conditions, and on the facts, it did not consider those restrictions appropriate.

Ruling on leave and the plaintiff’s motion

In the result, the court exercised its discretion under Rule 2.03 to dispense with the strict requirement in Rule 15.01(1) that a representative party be represented by a lawyer. It then granted leave under Rule 15.01(2) permitting Mr. Powell to represent Canada Trust in its capacity as plaintiff in this action. In doing so, the associate justice emphasized the trust structure, the exclusive financial interest of the Powells, their obligation to bear and indemnify costs, the consents of Canada Trust, its existing counsel, and Ms. Powell, and Mr. Powell’s demonstrated competence. The rest of the plaintiff’s motion had already been effectively resolved on consent: the substitution of 1322295 Ontario Ltd. in place of 13255595 Ontario Ltd., validation of service, and ordering that the present action and the related action be tried together.

Disposition of the defendants’ motion and the question of costs

Once leave for Mr. Powell to represent Canada Trust was granted and the trial-together order was made, the foundation of the defendants’ motion largely fell away. The court dismissed the defendants’ request to deny the plaintiff’s motion or to refuse consolidation and, in light of its ruling on leave, also dismissed the alternate relief requesting various conditions, including security for costs. On the record before the court, there was no basis for ordering security for costs or for adjourning the plaintiff’s motion pending further service on encumbrancers. The associate justice consequently dismissed the balance of the defendants’ motion. The question of costs of these motions was left open. Neither side made oral cost submissions at the hearing. The court invited both parties to file brief written submissions (not exceeding three pages) by a specified date if they wished costs to be addressed. No costs figure was set in the written reasons themselves.

Overall outcome and successful party

Overall, the plaintiff’s position prevailed on the substantive procedural issues. The plaintiff secured leave for Anthony Powell to act in place of counsel for the corporate trustee, obtained the requested amendment to correct a corporate defendant’s name, achieved validation of service with a timetable for the defence, and secured an order for the two related actions to be tried together. The defendants’ efforts to block or condition Mr. Powell’s participation, obtain security for costs, and adjourn the plaintiff’s motion were all rejected. As a result, the successful party on these motions is the plaintiff, The Canada Trust Company as bare trustee for the Powells. However, this decision does not adjudicate the merits of the mortgage enforcement claims or fix any damages, and it does not set a specific dollar amount for costs or any monetary award. The court simply reserved the question of costs for later written submissions; accordingly, the total monetary award, including costs, cannot be determined from this decision.