Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

January 28, 2019

FILE NO.:

DM 157842A

AMENDED DECISION ISSUED ON: February 6, 2019

Moving Party:

Municipal Property Assessment Corporation, Region 15

Respondents:

Neil Huddlestone and Pauline Huddlestone

Respondent:

Municipality of the Town of Oakville

Property Location:

1267 Dorval Drive, Unit 7

Municipality:

Town of Oakville

Roll Number:

2401-030-300-10902-0000

Appeal Number:

3253763

Taxation Year:

2017

Hearing Event No.:

702887

Legislative Authority:

Rule 61, Assessment Review Board Rules of Practice and Procedure, made under section 25.1 of the Statutory Powers Procedure Act

Heard:

October 18, 2018 in Toronto, Ontario

APPEARANCES:

Parties

Counsel⁺/Representative

MPAC

David Cowling⁺ and Mattison Chinneck⁺

Town of Oakville

Dennis Y. Perlin⁺

Neil Huddlestone and Pauline Huddlestone

Robert Baranowski

DISPOSITION OF THE BOARD DELIVERED BY DIRK VANDERBENT AND JEAN-PAUL PILON

Amended pursuant to Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2017

DISPOSITION OF MOTION

BACKGROUND

1The hearing of this summary proceeding appeal commenced on March 9, 2018. At the outset of this hearing, the Municipal Property Assessment Corporation (“MPAC”) proposed that its representative, Raj Rakhra, would testify as witness on MPAC’s behalf. The Appellants objected. The Town of Oakville (“the Municipality”) was present for this appearance. The presiding Members adjourned the hearing, giving directions that this preliminary matter be heard by way of motion before a different panel of the Assessment Review Board (the ‘Board’) to answer the following question:

Do the Rules (of the Assessment Review Board) preclude someone other than a representative who is licensed by the Law Society of Ontario as a paralegal from acting as both an advocate and a witness at a proceeding before the Board?

2On consent of the parties, the presiding Members gave the following directions for the hearing of the motion: (i) MPAC is the moving party and the Municipality and the Appellants are respondents to the motion; and (ii) the parties are required to first file written submissions, to be followed by an oral hearing of the motion;

3For the reasons below, the Board concludes that MPAC’s representative may act as both a representative and a witness in the hearing of this appeal.

RELEVANT LEGISLATION, BY-LAWS AND RULES

4Sections 2 and 25.1 of the Statutory Powers Procedure Act, R.S.O. 1990 c. S.22 (the ‘SPPA’) provide:

Amended pursuant to Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2017

2. This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

25.1 (1) A tribunal may make rules governing the practice and procedure before it.

(2) The rules may be of general or particular application.

(3) The rules shall be consistent with this Act and with the other Acts to which they relate.

(4) The tribunal shall make the rules available to the public in English and in French.

(5) Rules adopted under this section are not regulations as defined in Part III (Regulations) of the Legislation Act, 2006.

5Rules 3, 4, 5, 6, and 12 to 15 of the Board’s Rules of Practice and Procedure (the ‘Rules’) provide:

Definitions

3. “representative” means a person authorized under the Law Society Act or its By-Laws to represent a person in a proceeding before the Board;

Interpretation

4. These Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.

Proportionality

5. These Rules shall be applied in a manner proportionate to the importance and complexity of the issues in a proceeding and with a view to resolving appeals within the four year cycle.

Issues Not Dealt With in these Rules

6. Where these Rules are silent on any issue the Board may make whatever procedural orders or directions are required to effectively and efficiently adjudicate a proceeding.

REPRESENTATIVES

Appearance in Person or by Authorized Representative

12. In any proceeding:

a. a party or participant may appear in person or by representative;

b. a representative who is not licensed by the Law Society of Upper Canada must provide the Board with written confirmation of their authority to provide legal services; and

c. a party or participant must notify the Board, and all other parties and participants to the proceeding, of any changes in representation.

Removal of Representative

13. A representative of any party or participant may only be removed as representative if:

a. the party or participant issues a notice pursuant to Rule 12(c); or

b. the Board removes the representative by order.

Advocate and Witness

14. A representative that is licensed with the Law Society of Upper Canada as a paralegal may appear at a hearing event as both an advocate and a witness:

a. in a proceeding that is a summary proceeding; or

b. in a proceeding that is a general proceeding with leave of the Board.

Notices to Representative

15. Notice to a representative is deemed to be notice to the party or participant represented.

6Subsections 26.1(5) and 62 of the Law Society Act, R.S.O. 1990, c. L.8 as provide:

Exception, non-licensee practising law or providing legal services

26.1 (5) A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.

62 (2) The by-laws made under this section shall be interpreted as if they formed part of this Act.

7Section 70 of the Legislation Act, 2006, S.O. 2006, c. 21, Schedule F provides:

70. Tables of contents, marginal notes, information included to provide legislative history, headnotes and headings are inserted in an Act or regulation for convenience of reference only and do not form part of it.

8By-law 4, made under subsections 62(0.1) and (1) of the Law Society Act, R.S.O. 1990, c. L.8 provide, in part, as follows:

In-house legal services provider

30. 1. An individual, other than a Canadian law student or an Ontario paralegal student, who,

i. is employed by a single employer that is not a licensee or a licensee firm,

ii. provides the legal services only for and on behalf of the employer, and

iii. does not provide any legal services to any person other than the employer.

9Rule 4.04 of the Law Society’s Paralegal Rules of Conduct provides that:

4.04 (1) A paralegal who appears as advocate shall not testify or submit his or her own affidavit evidence before the tribunal unless

(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or

(b) the matter is purely formal or uncontroverted.

ISSUE

10In order to better understand the issue to be addressed in this Motion, it is necessary to first provide a brief description of the legal regime that regulates who may act as a party’s representative in a proceeding before the Board, and how this relates to the question as to whether a representative may also act as a witness in proceedings.

11Pursuant to the provisions of the Law Society Act, the Law Society of Ontario (formerly the Law Society of Upper Canada) (“Law Society’) is authorized to pass a by-law licensing those classes of persons who may act as a representative. It did that, passing By-Law 4 which provides that lawyers and paralegals who meet the Law Society’s qualifications, as well as a few other narrow classes of persons, are licensed to act as a representative. As a result, in Ontario no person may act as a representative unless he or she is licensed by the Law Society to do so, or is made exempt from this requirement.

12The Law Society has issued Professional Rules of Conduct (for lawyers) and Paralegal Rules of Conduct for paralegals. Each of these sets of Rules of Conduct speak to the question as to whether a lawyer/paralegal may act as both a representative and a witness in a proceeding.

13It is also important to note that By-Law 4 also provides exemptions to the licensing requirement, in other words, some classes of person may act as a representative even if they are not licensed by the Law Society (“Unlicensed Representatives”). The Law Society does not regulate the conduct of these persons. There are several classes of persons who are exempt from licensing, but for purposes of this Motion, it necessary to refer to only two of them: (i) in-house legal services providers who are employees of a single employer that is a party to a proceeding; and (ii) a friend or family member of a person who is a party to a proceeding. There are some additional conditions in order to qualify for these exemptions, but they need not be mentioned here as they are not germane to issue before the Board in this Motion.

14As noted above, the Law Society’s Rules of Conduct address whether licensed persons (i.e. a lawyer or a paralegal) may act as both a representative and witness in a proceeding. For paralegals, the relevant provision is Rule 4.04 (1) (a), which provides that a paralegal may do so, if this is permitted under a tribunal’s rules of procedure. In the case of the Board, Rule 14 provides this permission. It is not disputed by the parties that Rule 14 refers only to paralegals. Therefore, paralegals may act as both representative and a witness in a summary proceeding.

15Rule 14 does not refer to Unlicensed Representatives. On the other hand, the Board’s Rules do not otherwise expressly prohibit Unlicensed Representatives from acting as both a representative and a witness. The Rules are, in fact, silent on this point.

16In summary, the issue to be addressed in this Motion is whether the Board’s Rules should be interpreted to permit Unlicensed Representatives to act as both a representative and a witness in a proceeding.

REASONS FOR DISPOSITION OF MOTION

MPAC’s Submissions

17MPAC’s argument, framed in natural justice principles, is that parties appearing before the Board should be able to choose their legal representatives, and that only clear and unequivocal language should constrain that right. MPAC submits that there is nothing in the Board’s Rules, the Law Society Act or By-Law 4 which precludes an Unlicensed Representative from playing the dual role of both representative and witness.

18Specifically, MPAC submits that Rule 14 is not restrictive or prohibitive. Instead, MPAC asserts that the purpose of Rule 14 is to provide the permission required under the Paralegal Rules of Conduct to allow a paralegal to perform the dual role. MPAC maintains, therefore, that Rule 14 is permissive only, and does not prevent other classes of representatives from performing the dual role. In support of this interpretation, MPAC relies on Rule 4, which requires that the Rules be interpreted liberally to ensure the just, most expeditious and least expensive determination in every proceeding. MPAC argues that allowing an Unlicensed Representative to perform the dual role is consistent with the Board’s goal of reducing cost and delay set out in Rule 4.

19MPAC also relies on Rule 5 which requires that the Rules be applied in a manner that is proportionate to the importance and complexity of the issues before the Board. MPAC asserts that summary proceedings are not complex, and that narrowing the class of persons who may perform the dual role would result in additional cost and delay. MPAC further notes that if Rule 14 restricts permission to perform the dual role to only a paralegal, then parties who want their representatives to play the dual role would be forced to retain a paralegal, often at increased cost, and thereby be deprived of the opportunity to choose an Unlicensed Representative.

20MPAC submits that when interpreting Rule 14, the Board should not merely consider the plain meaning of this Rule, but must also consider the scheme of the Board’s Rules, their object, and the Board’s intention in drafting the Rule. In support of this submission, MPAC relies on the Supreme Court of Canada decision in Rizzo & Rizzo Shoes (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at paras. 21, 41 and 42. MPAC also asserts that administrative tribunals are required to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly. In support of this submission, MPAC relies on Rasanen v. Rosemount Instruments Ltd., (1994), 19 OR (3d) 267 (CA).

21MPAC argues that interpreting Rule 14 to bar non-paralegal representatives would be illogical and incompatible with the Rules and purpose of the Board.

22Finally, MPAC argues that the Board is not bound by its own decision in Eidlitz v. Municipal Property Assessment Corp., Region 15, 2018 CanLII 12499 (ON ARB) (‘Eidlitz’). In support of this submission, MPAC refers to the well-established principle that, although the Board must strive for consistency within its decisions, the Board is not bound by other Board or tribunal decisions.

MPAC’s Requested Remedies

23MPAC requests that the Board find that the Rules do not preclude someone other than a representative licensed by the Law Society as a paralegal from acting as both an advocate and witness in a summary proceeding before the Board. MPAC also requests that the Board release a practice direction outlining the same determination or, alternatively, that a practice direction be issued saying that Board Members shall grant leave for such representation absent exceptional circumstances.

Municipality’s Submissions

24The Municipality concurs with MPAC’s submissions. The Municipality also relies on an affidavit of one of its employees, an assessment review officer who is also a paralegal. This affiant states in his affidavit that there would be an impact on municipal resources if Unlicensed Representatives could not perform the dual role and that such a determination would also impact self-represented parties wanting to have family members represent them.

25The Municipality also responded to the Appellants’ assertion that if Unlicensed Representatives are permitted to act as witnesses, their conduct as witnesses could not be challenged as the conduct of an Unlicensed Representative is not regulated by the Law Society. The Municipality emphasizes that the Board could address any witness conduct issues by applying evidentiary principles and determining the weight to be given to a witness’ evidence.

Municipality’s Requested Remedies

26The remedies requested by the Town were the same as those requested by MPAC, except it also requests that any practice direction make clear that Unlicensed Representatives who wish to be both a representative and a witness in a proceeding before the Board must still comply with By-Law 4 of the Law Society Act with respect to the provision of legal services.

Appellants’ Submissions

27The Appellants’ position is that the Rules do not permit an assessor, who is not a paralegal, to appear at a hearing event as both a representative and a witness in a proceeding.

28The Appellants’ argue that the Board does not have the jurisdiction to interpret the provisions of the Law Society Act and By-law 4, in particular, as they relate to whether MPAC’s property assessors may provide legal services without a license. The Appellants submit that only the Law Society can determine whether an MPAC property assessor may provide legal services as an Unlicensed Representative who falls within the class of in-house legal services provider.

29The Appellants submit that Rule 14 is not ambiguous and does not require interpretation. They argue that an amendment to Rule 14 would be required if the Board wishes to allow assessors to act as representatives and witnesses.

30The Appellants further argue that MPAC employs paralegals and that the other parties provided no evidence that requiring its paralegals to attend Board hearings would result in additional cost. They argued that paralegal representation would be consistent with Rule 4 as expeditious and inexpensive representation because it would be more likely that paralegals would manage hearings expeditiously and efficiently.

31The Appellants assert that MPAC’s paralegals are involved in the pre-hearing process leading up to a hearing and, therefore, it would be reasonable for them to be required to attend hearings as representatives for MPAC.

32The Appellants also submit that it would be a violation of natural justice and procedural fairness to allow assessors to act as representatives and witnesses, and that to do so would lead to an abuse of the Board’s process. In support of this submission, they refer to the Paralegal Rules of Conduct, which do not apply to MPAC’s property assessors who are not paralegals, emphasizing that there would be no recourse to the Law Society in the event of misbehavior either as a representative or when acting as a witness.

33The Appellants also submit that the Board should follow its own ruling in Eidlitz and emphasize that the parties to that proceeding have neither requested a review of that decision, nor have they appealed it.

34The Appellants argue that summary appeals are not necessarily simple proceedings. Furthermore, they maintain that MPAC has frequently in the past instructed paralegals to appear as representatives along with assessors who appear as witnesses.

35The Appellants’ representative argues that, in order for an Unlicensed Representative to act as witness, Rule 14 would have to expressly provide permission to do so.

36The Appellants submit that assessors cannot qualify for the exemption in By‑law 4 as individuals who act for a single employer, emphasizing that the subtitle for s. 30 of the By-Law is “in-house legal services provider”. The Appellants observe that MPAC employs paralegals to provide such in-house legal services which therefore precludes MPAC’s property assessors from also performing this role. The Appellants further assert that MPAC’s property assessors also provide legal advice to members of the public when asked to do so. They argue that these assessors do not meet the criteria under s. 30 to qualify as an in-house legal services provider.

The Appellants’ Requested Remedies

37The Appellants request that the Board find that an MPAC property assessor who is not a paralegal cannot appear as a representatives in a proceeding before the Board, or, if they can, that they are not permitted to perform the additional role of acting as both representative and witness in the same proceeding before the Board. In the event that the Board finds otherwise, the Appellants’ request that the Board amend Rule 14 to confirm this ruling.

Findings

38The Board first addresses the Appellant’s submission that the Board does not have the jurisdiction to consider and interpret the Law Society Act or By-Law 4. The Board does not accept this submission. In Tranchemontagne v. Ontario (Director, Disability Support Program) 2006 SCC 14, [2006] 1 SCR 513, the Supreme Court of Canada held that statutory tribunals are empowered to decide questions of law and are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly before them. The Board finds that it is clear in this case that the statutory regulation of who may act as representative, and whether a representative may also testify as a witness, is part of the whole law which the Board must consider in deciding this Motion.

39The Board next addresses the Appellant’s submission that property assessors who are employed by MPAC cannot be in-house legal services providers. “In-house legal services providers” is the subtitle to s. 30 of By-law 4, however the actual definition of this class of persons refers to an employee of a single employer who provides legal services only for and on behalf of the employer and not to any other person. The Appellants do not dispute that MPAC’s property assessors are employed by MPAC as a single employer, but they allege that MPAC’s property assessors provide legal services to the public. MPAC disputes this allegation. The Board does not accept the Appellants’ submission because the Appellants have provided no evidence to support it. The Appellants also rely on the wording of the s. 30 subtitle, arguing that this wording supports their interpretation that a single employer who employs both a paralegal and other employees must choose its paralegal to act as its representative. The Board does not accept this submission either for two reasons. The first is that s. 70 of the Legislation Act provides that headings are inserted in an act or regulation for convenience or reference only and do not form part of it. While By-Law 4 is not an act or regulation, it has been passed pursuant to the Law Society Act. For this reason, the Board does not consider this subtitle when interpreting s. 30 of By-Law 4. Secondly, the Board notes that the Appellants’ submission is essentially that By-Law 4 regulates not only who may act as a representative, but who a single employer may choose to act as its representative. As noted by MPAC and the Municipality, the general principle is that a person has the right to choose a representative. The Board finds that there is nothing in By-Law 4 or the Law Society Act which addresses this right to choose, let alone place restrictions on this right.

40The Board now turns to the interpretation of Rule 14. The Appellants argue that Rule 14 is unambiguous and does not require interpretation. In other words, if the intent of this Rule was to include Unlicensed Representatives, then Rule 14 would expressly say so. However, the Board must also interpret Rule 14 in the context of its apparent purpose as well as in the context of the purpose of the Rules overall. The Board must also interpret Rule 14 in a manner that is harmonious with the other Rules.

41The Board accepts that, on its face, Rule 14 provides that only a paralegal may appear as both a representative and a witness. However, the Board finds that it is clear that the purpose of Rule 14 is to respond to the requirement in Rule 4.04 of the Paralegal Rules of Conduct, which dictates that paralegal may not perform the dual role unless a tribunal’s rules must expressly provide that a paralegal may do so. There is nothing in Rule 14 to suggest any other purpose for this Rule and neither it, nor any other Board Rule, expressly prohibits an Unlicensed Representative from performing the dual role. However, it must also be noted that the Board’s Rules, the Law Society Act and By-Law 4 are all silent on whether an Unlicensed Representative may perform the dual role.

42As the Board’s Rules are silent on this point, the Board, pursuant to Rule 6, may make whatever procedural orders or directions that are required to effectively and efficiently adjudicate this proceeding. In making this determination, the Board has considered the following three points.

43First, the Board emphasizes that, while there may be an ongoing debate whether any representative should be permitted to act as a witness, this is not the issue before the Board in this motion. Here, the question is solely whether an Unlicensed Representative may also perform the dual role.

44Second, a party has a right to choose his, her or its representative, but this right is not absolute. Pursuant to By-Law 4, this person may be an Unlicensed Representative. The Board finds that this right to select a representative would be restricted to some degree, in that a party who otherwise wishes to retain an Unlicensed Representative would be a required to have another person attend as a witness. The Board finds that there is the potential for procedural unfairness, because a party who wishes to retain an Unlicensed Representative would have to call a separate person to act as witness, whereas another party to the same proceeding, who retains a paralegal, would not.

45Third, the Board must consider whether there is any logical explanation why a paralegal would be better equipped to testify as a witness than an Unlicensed Representative. The role of the representative is distinct from the role of a witness, and the Board finds that there is no apparent reason to assume that a person who is a representative is a better candidate to act as a witness than a person who is not a representative. Similarly, there is no apparent reason to assume that a paralegal, as a licensed representative, would be a better candidate to act as a witness than an Unlicensed Representative. The Board notes that the Appellants have argued to the contrary, in that they maintain that a paralegal representative who acts as witness is subject to discipline by the Law Society for misbehaviour, whereas an Unlicensed Representative is not. The Board does not accept this submission. The Board notes that the Appellants cite no specific provisions of By-law 4 or the Paralegal Rules of Conduct which substantively govern a paralegal’s conduct as a witness. Furthermore, procedurally, all witnesses must be treated the same, irrespective of whether the witness is a representative. In this regard, the Board accepts that the rules of evidence are sufficient to govern the conduct of a witness when testifying in a proceeding.

46For the above reasons, the Board finds that there is no probative reason to support the proposition that only a paralegal should be permitted to act as both a representative and a witness. In light of the Board’s finding that Rule 14 itself does not prevent an Unlicensed Representative from performing this dual role, the Board finds that Mr. Rakhra may act as both representative and witness in this proceeding.

47In arriving at this conclusion, the Board has also considered the previous Board decision in Eidlitz, which determined the opposite. The parties agree with the principle that the Board is not bound by this decision, but the Board should also strive for consistency in its decisions. MPAC and the Municipality assert that the decision in Eidlitz is incorrect, and, therefore, should not be followed. The Appellants assert that the decision in Eidlitz addresses the very issue before the Board in this Motion, and submit that the principle of consistency requires the Board to follow it.

48The Board’s findings in Eidlitz on the issue are brief. Par. 9 states:

… The objection was raised to MPAC appearing as both an advocate and a witness, which is governed by Rule 14. That Rule states that licensed paralegals may appear as both advocate and witness in summary proceedings. That permission is not granted to other representatives. That is, even if Mr. Cole was permitted to act as a representative without being licensed, he still could not act as both an advocate and a witness.

49The Eidlitz decision indicates that the only submission made by MPAC addressed the question whether an MPAC employee was exempt from the requirement to be a licensed representative (see para. 5). The analysis in the Eidlitz decision did not address the classes of Unlicensed Representatives that have been referenced in this Motion, nor did it address the Paralegal Rules of Conduct, particularly Rule 4.04. Therefore, the submissions made in this Motion present a different question requiring different analysis than was before the Board in Eidlitz. For this reason, the Board finds that it should not follow the Eidlitz decision in deciding this Motion.

50The Board now turns to the additional requests made by the parties respecting issuance of additional practice direction or guidelines for amendment to the Board’s Rules. These are governed by separate administrative procedures, which include an opportunity for input and comment by members of the public. As such, the Board cannot address these additional requests in the disposition of this Motion.

DECISION

51Pursuant to Rule 6, the Board finds that an Unlicensed Representative may act as both a representative and witness in a proceeding before the Board.