Rule 5 – Partnerships and Sole Proprietorships

Partnerships

5.01 A proceeding by or against two or more persons as partners may be commenced using the firm name of the partnership.  O. Reg. 258/98, r. 5.01.

Defence

5.02 If a proceeding is commenced against a partnership using the firm name, the partnership’s defence shall be delivered in the firm name and no person who admits being a partner at any material time may defend the proceeding separately, except with leave of the court.  O. Reg. 258/98, r. 5.02.

Notice to Alleged Partner

5.03 (1) In a proceeding against a partnership using the firm name, a plaintiff who seeks an order that would be enforceable personally against a person as a partner may serve the person with the claim, together with a notice to alleged partner (Form 5A).  O. Reg. 258/98, r. 5.03 (1).

(2) A person served as provided in subrule (1) is deemed to have been a partner at the material time, unless the person defends the proceeding separately denying having been a partner at the material time.  O. Reg. 258/98, r. 5.03 (2).

Disclosure of Partners

5.04 (1) If a proceeding is commenced by or against a partnership using the firm name, any other party may serve a notice requiring the partnership to disclose immediately in writing the names and addresses of all partners constituting the partnership at a time specified in the notice; if a partner’s present address is unknown, the partnership shall disclose the last known address.  O. Reg. 258/98, r. 5.04 (1).

(1.1), (1.1.1) Revoked:  O. Reg. 78/06, s. 6.

Partnership’s Failure to Comply

(2) If a partnership fails to comply with a notice under subrule (1), its claim may be dismissed or the proceeding stayed or its defence may be struck out.  O. Reg. 258/98, r. 5.04 (2).

Enforcement of Order

5.05 (1) An order against a partnership using the firm name may be enforced against the partnership’s property.  O. Reg. 258/98, r. 5.05 (1).

(2) An order against a partnership using the firm name may also be enforced, if the order or a subsequent order so provides, against any person who was served as provided in rule 5.03 and who,

(a) under that rule, is deemed to have been a partner at the material time;

(b) has admitted being a partner at that time; or

(c) has been adjudged to have been a partner at that time.  O. Reg. 258/98, r. 5.05 (2).

Against Person not Served as Alleged Partner

(3) If, after an order has been made against a partnership using the firm name, the party obtaining it claims to be entitled to enforce it against any person alleged to be a partner other than a person who was served as provided in rule 5.03, the party may make a motion for leave to do so; the judge may grant leave if the person’s liability as a partner is not disputed or, if disputed, after the liability has been determined in such manner as the judge directs.  O. Reg. 258/98, r. 5.05 (3); O. Reg. 78/06, s. 7.

Sole Proprietorships

5.06 (1) If a person carries on business in a business name other than his or her own name, a proceeding may be commenced by or against the person using the business name.  O. Reg. 258/98, r. 5.06 (1).

(2) Rules 5.01 to 5.05 apply, with necessary modifications, to a proceeding by or against a sole proprietor using a business name, as though the sole proprietor were a partner and the business name were the firm name of a partnership.  O. Reg. 258/98, r. 5.06 (2).