Equiprop Management Ltd. v. Harris et al. [Indexed as: Equiprop Management Ltd. v. Harris]
51 O.R. (3d) 496
[2000] O.J. No. 4552
Court File No. 607/2000
Ontario Superior Court of Justice
Divisional Court
Lang J.
November 21, 2000
Landlord and tenant -- Residential tenancies -- Rules of Civil Procedure applying to court proceedings under Tenant Protection Act -- Paralegals not authorized to represent parties on excess claim under s. 193(2) of Act or on appeal under s. 196 of Act -- Tenant Protection Act, 1997, S.O. 1997, c. 24, ss. 193(2), 196 -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Professions - Barristers and solicitors - Paralegals - Paralegals not authorized to represent parties on excess claim under s. 193(2) of Tenant Protection Act or on appeal under s. 196 -- Tenant Protection Act, 1997, S.O. 1997, c. 24, ss. 193(2), 196 -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194 - Law Society Act, R.S.O. 1990, c. L.8, s. 50.
The tenants appealed an order of the Ontario Rental Housing Tribunal terminating the tenancy, ordering vacant possession and setting arrears, compensation and costs. The order was stayed pending appeal. The landlord sought to quash the appeal or to set terms for its continuance, such as the removal of the stay. The tenants were represented by a paralegal. The question arose whether paralegals are currently authorized by law to represent parties in court on residential tenancy matters.
Held, the motion to lift the stay should be granted in part.
Under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("the SPPA"), agent representation before the Ontario Rental Housing Tribunal is permitted. However, such representation is not extended to court appearances. Further, the SPPA specifically states that it does not apply to proceedings in the Superior Court of Justice, nor does it apply to proceedings in which the Rules of Civil Procedure apply.
Whether it is hearing an excess claim under s. 193(2) of the Tenant Protection Act, 1997 ("the TPA") or an appeal under s. 196 of the TPA, the court is not acting as a tribunal under the TPA. The Rules of Civil Procedure apply to both excess claims and appeals. Under Rule 15.01(3), a party to a proceeding who is neither under disability nor a corporation "may act in person or be represented by a solicitor". The Rules do not authorize a paralegal to represent a party in court. Furthermore, s. 50 of the Law Society Act prohibits non-lawyers from practising law unless authorized by law. A paralegal representing a party in court is practising law and is not authorized to do so. Accordingly, the court does not have an inherent jurisdiction to allow a paralegal to represent a party in court, regardless of the circumstances.
The tenants did not move to set aside the order of the ORHT under s. 192(2) of the TPA, which would have had the effect of staying the effect of the eviction and the judgment for arrears. The tenants did not apply to the ORHT under the combination of s. 169(1)(a) of the TPA and s. 21.2 of the SPPA for a review of its order. Rather, the tenants appealed the order. In the circumstances, the merits of the appeal were, at best, tenuous. Further, the tenants had not paid any rent for six months. There was no reason why they should not pay rent pending the appeal. That part of the stay dealing with payment should be lifted. However, the issuance of a writ of possession should be stayed, provided that the appeal could be heard promptly.
MOTION to quash an appeal from an order of the Ontario Rental Housing Tribunal or to lift a stay pending appeal.
Banyasz v. Galbraith (1996), 7 C.P.C. (4th) 307, 94 O.A.C. 75 (Div. Ct.); Gotlibowicz v. Gillespie (1996), 1996 11764 (ON SCDC), 28 O.R. (3d) 402, 47 C.P.C. (3d) 96 (Div. Ct.), apld Carroll v. Carroll, 2000 28013 (ON CJ), [2000] O.J. No. 3969 (C.J.); Gill v. Residential Property Management Inc. (2000), 2000 22701 (ON SC), 50 O.R. (3d) 752, [2000] O.J. No. 3709 (S.C.J.); Guy v. Guy, unreported March 22, 2000, 2000 28011 (ON SC), [2000] O.J. No. 1038 (S.C.J.); Petsinis v. Escalhorda, unreported, September 11, 2000, [2000] O.J. No. 3324 (S.C.J.); Smith v. Smith, 2000 28012 (ON SC), [2000] O.J. No. 1236 (S.C.J.); Stone v. Stone (2000), 2000 20767 (ON SC), 5 R.F.L. (5th) 151, [2000] O.J. No. 570 (S.C.J.), consd Other cases referred to 1109222 Ontario Ltd. v. Murad, [1999] O.J. No. 3642 (Div. Ct.); Baxter Student Housing Ltd. v. College Housing Co- operative Ltd., 1975 164 (SCC), [1976] 2 S.C.R. 475, [1976] 1 W.W.R. 1, 20 C.B.R. (N.S.) 240, 57 D.L.R. (3d) 1, 5 N.R. 515; Berhold Investments Ltd. v. Fall (1982), 1982 2085 (ON SC), 35 O.R. (2d) 338, 132 D.L.R. (3d) 481, 28 C.P.C. 198 (Div. Ct.); Conley v. Walker, unreported, July 24, 2000 (Ont. S.C.J.); Gabrielson v. Murovec, [1993] O.J. No. 2647; Jackson v. Ontario (Attorney General), [1995] O.J. No. 1125; Letros (Re), 1972 606 (ON CA), [1972] 2 O.R. 589, 26 D.L.R. (3d) 257 (C.A.); Montreal Trust Co. v. Churchill Forest Industries (Manitoba) Ltd. (1971), 1971 960 (MB CA), 21 D.L.R. (3d) 75, [1971] 4 W.W.R. 542 (Man. C.A.); Ng-Evans v. Gray, [1992] O.J. No. 1758; Norno Developments Ltd. v. Papa, unreported, May 15, 1998 (Ont. Div. Ct.); R. v. Duggan (1976), 1976 1392 (ON CA), 31 C.C.C. (2d) 167 (Ont. C.A.); R. v. Lawrie & Pointts Ltd. (1987), 1987 4173 (ON CA), 59 O.R. (2d) 161, 19 O.A.C. 81, 32 C.C.C. (3d) 549, 48 M.V.R. 189 (C.A.); R. v. Romanowicz (1999), 1999 1315 (ON CA), 45 O.R. (3d) 506, 178 D.L.R. (4th) 466, 138 C.C.C. (3d) 225, 45 M.V.R. (3d) 294, 26 C.R. (5th) 246 (C.A.); Stone v. Metro Toronto Housing Authority (1987), 1987 4029 (ON SC), 59 O.R. (2d) 605, 19 C.P.C. (2d) 31 (Dist. Ct.); Stone v. Stone (1999), 1999 14253 (ON SC), 4 R.F.L. (5th) 433, [1999] O.J. No. 5266 (S.C.J.); Straka v. Humber River Regional Hospital (2000), 2000 16979 (ON CA), 51 O.R. (3d) 1, [2000] O.J. No. 4212 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms Landlord and Tenant Act, R.S.O. 1990, c. L.7, Part IV, ss. 113(10), 116, 118(1) Law Society Act, R.S.O. 1990, c. L.8, s. 50 Solicitors Act, R.S.O. 1990, c. S.15, s. 1 Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 1, 3, 10, 21.2, 25(1), 25.1 Tenant Protection Act, 1997, S.O. 1997, c. 24, ss. 1(1) "Rules", 2, 4, 164, 169(1)(a), 190(3), 192, 193, 194(1), 196, 199(1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.02, 1.04, 15, 15.01, 15.02, 63.01(3), 63.03(5.1) Family Law Rules, O. Reg. 114/99, rule 4(1)(c) ORHT Rules of Practice, rules 13.3, 27 Authorities referred to Ianni, Task Force on Paralegals (1990) Cory, A Framework for Regulating Paralegal Practice in Ontario (Ontario Ministry of the Attorney General, 2000)
David Strashin, for respondent. Sandy Hutchens, Agent, for appellants.
1LANG J.: -- Whether paralegals should be permitted to represent litigants before the courts is a matter under study by the provincial government. The issue is for the legislature's determination. The question before me is a narrow one: whether a paralegal is currently authorized by law to represent parties in this court on a residential tenancy matter.
2It may be worthwhile to explain my use of the term paralegal. I use the term paralegal to refer to one of a growing number of individuals with diverse experience, with or without formal training, and not subject to regulation of any kind, who wish to represent litigants in proceedings before the court. Historically law clerks, trained by education or experience, assisted lawyers and were supervised by lawyers. Paralegals, on the other hand, are not subject to training or supervision by anyone. Anyone may designate him or herself as a paralegal. A paralegal, in today's context, assumes the sole responsibility for a litigant's case, without reference to a lawyer at any point in the proceeding. A paralegal requires no qualifications, need not obtain insurance and is subject to neither regulation nor discipline. It is in this context that I use the term paralegal in these reasons.
3The question arose when the landlord, represented by counsel, sought to quash the tenant's appeal or, alternatively, to set terms for its continuance, such as removal of the stay pending appeal, and the posting of security for costs. Mr. Hutchens, a self-described paralegal, appeared for the appellant, and said that paralegals as agents are entitled as of right to appear both on appeals from the Ontario Rental Housing Tribunal (ORHT), and in this court on residential tenancy matters outside the jurisdiction of the ORHT. Alternatively, if paralegals are not entitled to represent tenants or landlords as of right, then Mr. Hutchens says that they are entitled to do so with leave and that leave should be given.
4Upon Mr. Hutchens' request for an adjournment, I put the representation question over for two days. For the limited purpose of the representation argument, I allowed Mr. Hutchens to represent the tenants. At the conclusion of argument, I reserved the representation decision. However, because both parties sought a speedy decision on the "stay" motion, I considered the fact of my reserve sufficient "special circumstances" (about which I will say more), to allow Mr. Hutchens to argue the "stay" motion. In the course of the "stay" argument, it became apparent that both issues depend upon whether the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, apply. Accordingly, these reasons address first the "representation" issue and then the "stay" motion.
Context
5It is helpful to begin by putting the issues in context. Mr. Hutchens has been allowed to represent tenants on numerous occasions in the Superior Court of Justice and in this branch of the Superior Court, the Divisional Court. Indeed, Mr. Hutchens asked for the adjournment to supplement his one volume of authorities on paralegal representation with two further volumes of additional cases in which courts permitted such representation. I pause to note that at first appearance Mr. Hutchens did not include cases that held contrary to his position but that, at my request, he did include such cases in his supplementary material.
6The material he filed supports his position that many members of the court, including me, have permitted Mr. Hutchens to represent tenants on motions and at trials in the Superior Court of Justice and on appeals in Divisional Court. As Mr. Hutchens relies on this body of authority, I have summarized the cases in Appendix A to these reasons. I note that Mr. Hutchens was the referenced agent in by far the majority of the cases. Very few of the cases are more than an order or an endorsement. Very few judges gave any reasons analyzing the issue. The few cases deciding against paralegal representation will be discussed later in this judgment.
Legislative History
7With that background, I turn to what the legislature has enacted concerning representation of litigants by lawyers and representation of litigants by agents.
8Section 1 of the Solicitors Act, R.S.O. 1990, c. S.15, provides penalties for those persons, other than lawyers, who represent litigants in a proceeding. The penalties include a prohibition on recovery of fees and make allowance for contempt charges. While "proceeding" is not defined by the Solicitors Act, the reference to contempt of court is indicative that, at a minimum, the prohibition against non-lawyer, non-party representation applies to proceedings in a court.
9The issue is more broadly addressed by s. 50(1) of the Law Society Act, R.S.O. 1990, c. L.8, which says:
50(1) Except where otherwise provided by law,
(a) no person, other than a member . . ., shall act as a [lawyer] . . . or represent themself to be a [lawyer] or practise as a [lawyer] . . .
10Contravention of this provision is an offence that may result in conviction.
11The interrelationship of these provisions was considered by Blair J.A. in R. v. Lawrie & Pointts Ltd. (1987), 1987 4173 (ON CA), 59 O.R. (2d) 161 at p. 178, 48 M.V.R. 189 (C.A.), where he said:
The effect of the 1970 revision of the three statutes was to transfer the control of unauthorized practice to the Law Society Act. Section 1 of the Solicitors Act is merely an ancillary provision. It does not prohibit unauthorized practice. It merely provides penalties additional to those prescribed in s. 50 of the Law Society Act by preventing recovery of fees and exposing unauthorized persons to the charge of contempt of court. The section cannot stand by itself. The penalties it provides can only apply to unauthorized practice as defined by s. 50(1) of the Law Society Act and as a result do not extend to agents in the position of the respondents whose activities are excepted as being "otherwise provided by law".
This interpretation is fortified by a consideration of s. 1 of the Solicitors Act by itself. The Act now deals entirely with solicitor-and-client accounts and it is logical for it to include the prohibition against charges for unauthorized practice. Contempt of court is the other penalty for unauthorized practice contained in s. 1. It is inconceivable that agents acting under the authority of other statutes could be held in contempt of court and this is a further indication that the Legislature intended s. 1 of the Solicitors Act to be merely ancillary to s. 50(1) of the Law Society Act.
It is ironic that there is a lack of clarity in the statutes governing the legal profession and their application to the respondents. I commend for the Legislature's attention the clarification of this legislation and also the status of agents and other paralegals which is now a matter of considerable public discussion.
12In the intervening 13 years, the legislature has not given the matter its attention, although the Dr. R.W. Ianni Task Force on Paralegals (1990) considered the matter and more recently the Honourable Peter Cory completed a report on paralegals, which report I will reference later. Existing law prohibits representation by paralegals, except where otherwise provided by law. The question then is whether paralegal representation in residential tenancy matters is otherwise provided by law.
13The legislative position is reflected in rule 15.01 of the Rules of Civil Procedure, which provides:
15.01(1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a solicitor.
(2) A party to a proceeding that is a corporation shall be represented by a solicitor, except with leave of the court.
(3) Any other party to a proceeding may act in person or be represented by a solicitor.
14While it is rule 15.01(3) that is of immediate concern, the other two subsections assist with context. A person under disability is not allowed to represent him or herself and "shall" be represented by a solicitor. A corporation "shall" be represented by a solicitor, except with leave. Anyone else "may" either represent themselves or be represented by a solicitor. There is no provision in rule 15.01(3) for leave to be represented by a non-lawyer, unless leave may be given under the umbrella of the inherent jurisdiction of the court to control its own process. More will be said about that later. These then are the legislative and regulatory provisions concerning paralegal or agent representation.
15In Jackson v. Ontario (Attorney General), [1995] O.J. No. 1125, a paralegal challenged the constitutionality of the above provisions of the Solicitors Act, the Law Society Act and Rule 15 on the basis that they infringed his Canadian Charter of Rights and Freedoms rights on a number of grounds and, in particular, his economic rights. In dismissing the challenge, Borins J. found that the provisions both were within the legislative competence of the legislature and did not infringe any of the applicant's Charter rights.
16If the legislature provides for paralegal representation in a statute, such representation becomes "otherwise provided by law" in accordance with the Law Society Act. Of relevance to this case, the Landlord and Tenant Act, R.S.O. 1990, c. L.7, Part IV (LTA), which governed residential landlord and tenant matters before 1997, is an example of where the legislature so provided. Section 118(1) of the LTA specifically provided that an "agent" could represent a "party to an application" and specified that a residential tenancy dispute was to be determined in a "hearing", held by a judge in court. The LTA provided procedural guidelines for the initiation of such a proceeding and provided provisions for notice, service, filings, orders, judgments, enforcement and evidentiary issues.
17The LTA gave no specific guidance as to how the proceeding itself should be conducted, but did provide that it should be a "hearing" to be held "forthwith" (s. 113(10)).
Agent Representation under the LTA
18With that wording under this pre-1997 legislation, the issue arose whether the Rules of Civil Procedure (such as pleadings, discoveries, disclosure and trial conduct requirements) applied to residential tenancy hearings. Rule 1.02(1) of the Rules of Civil Procedure applied the Rules to all civil proceedings in the court except where "a statute provides for a different procedure". The courts held that the LTA reference to documentary and notice requirements and to a "summary proceeding" was "a different procedure" sufficient to oust the applicability of the Rules. See for example: Berhold Investments Ltd. v. Fall (1982), 1982 2085 (ON SC), 35 O.R. (2d) 338, 28 C.P.C. 198 (Div. Ct.); Stone v. Metro Toronto Housing Authority (1987), 1987 4029 (ON SC), 59 O.R. (2d) 605, 19 C.P.C. (2d) 31 (Dist. Ct.); Ng- Evans v. Gray, [1992] O.J. No. 1758; Gabrielson v. Murovec, [1993] O.J. No. 2647. The result was a procedure with which our courts became very familiar: a su mmary trial procedure without discovery, but usually with viva voce evidence and with representation of parties by agents (usually paralegals), if a party so chose. Many did. Many of the agents were extremely skilled in representing landlords and tenants. Some were not. The procedure was not complex and did not require filing of voluminous material or adherence to strict rules of production or evidence.
19During this timeframe, landlord and tenant appeals from a final order of a judge came to Divisional Court under the LTA, s. 116. In Gotlibowicz v. Gillespie (1996), 1996 11764 (ON SCDC), 28 O.R. (3d) 402, 47 C.P.C. (3d) 96 (Div. Ct.), which considered whether a paralegal could represent a party on such an appeal, Feldman J. found there to be no statutory authority permitting an agent to represent a party in Divisional Court. She held that once the matter reached the appeal stage, an agent could no longer rely upon the representational right given by s. 118(1), which provision applied only to the initial application in court. Nor could it be said that s. 10 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which permits limited agent representation, extended to Divisional Court proceedings (pp. 404-05 O.R.). Feldman J. noted instances where the Court of Appeal held that s. 50 of the Law Society Act clearly prevented agents from appearing in courts, unless specifically permitted to do so by legislation. (See Re Letros, 1972 606 (ON CA), [1972] 2 O.R. 589, 26 D.L.R. (3d) 257 (C.A.) (agents cannot be granted audience in the Court of Appeal) and R. v. Duggan (1976), 1976 1392 (ON CA), 31 C.C.C. (2d) 167 (Ont. C.A.), appeal dismissed by the Court of Appeal (agent could not appear in County Court).) After careful analysis, Feldman J. held that non-lawyers could not appear as agents before Divisional Court; that to the extent that the court had the discretion to allow a non-lawyer to appear in "special circumstances", no such circumstances existed; and that to provide consistency and clarity and to prevent unnecessary costs, the prohibition against paralegal representation applied to all agents on appeals to Divisional Court on rent control matters.
20Later in 1996 the same issue arose before a Divisional Court panel in Banyasz v. Galbraith (1996), 94 O.A.C. 75, 7 C.P.C. (4th) 307 (Div. Ct.). Writing for the panel, Steele J. agreed with Feldman J. that, absent special circumstances justifying the giving of leave, agents could not appear. Steele J. specifically considered the issue with respect to LTA appeals and found that the s. 118 allowance of agent representation in applications did not extend to appeals from decisions arising from those applications. This principle was extended to prohibit agent representation of a landlord by Norno Developments Ltd. v. Papa, a judgment of the Divisional Court, delivered May 15, 1998, where A. Campbell J. dismissed a rule 15.01(2) motion by a paralegal to represent a landlord. In doing so, Campbell J. relied upon Banyasz v. Galbraith and said"It would be unfair to use Rule 15.01(2) to give corporations an advantage. Rule 15.01(2) contemplates an agent other than a full-time landlord and tenant agent."
21In summary, under the LTA, paralegals were specifically authorized to represent parties on the application but were not authorized by law to represent parties in appeals to Divisional Court, although occasionally an individual judge or panel did so (see Appendix A).
The Tenant Protection Act
22After many years of the LTA, the legislature moved residential tenancy jurisdiction from the court to a newly created tribunal. This was accomplished through the Tenant Protection Act, 1997, S.O. 1997, c. 24 (TPA), which provided a complete code of proceedings and procedures before the ORHT, including detailed rules for its own procedure. The court no longer had jurisdiction with respect to residential tenancies, except for appellate jurisdiction and with respect to "excess claims".
23I pause here to explain about "excess claims". I use that term to refer to certain claims that come to our court because they are said to be outside the jurisdiction of the ORHT. For example, claims over $10,000, mostly tenant abatement claims --s. 193(1) of the TPA. As well, excess claims includes claims for punitive damages. While I refer to excess claims when discussing the representation issue, I do so specifically without commenting on any jurisdictional argument, which jurisdiction the landlord's counsel says may be challenged in the future.
24As is apparent from Appendix A, after the transfer of jurisdiction to the ORHT, residential tenancy matters did not come before this court for a period of time. In 1999 and 2000, an increasing number of proceedings have returned to us.
25Presumably because many judges were accustomed to paralegal representation under the LTA, judges frequently permitted paralegal representation under the TPA on excess claims. However, I also note that in many of the instances set out in Appendix A, the relief requested was on consent or unopposed, and paralegal representation was not challenged. In other cases, Mr. Hutchens persuaded the presiding judge that he was entitled to represent a party either as of right or with leave. Until recently no judges had the occasion to reserve judgment and to analyze the question of paralegal representation. At first glance, it might seem that the judge in Conley v. Walker, a judgment of the Superior Court of Justice, delivered July 24, 2000, did give the matter extensive consideration because the "Reasons" presented in Mr. Hutchens' Book of Authorities show that the judge considered more than five pages of cited authorities. However, Mr. Hutchens acknowledged that these "Reasons for Decision" were never signed by the judge and were in fact drafted by him and by another agent. Mr. Hutchens said that as paralegals, they were unaware of the protocol for the preparation of Reasons and had sent this draft to the presiding judge for signature. The "Reasons" are not signed. Even if done out of the best of intentions, and I do not question those intentions here, this incident squarely raises issues about paralegal education and qualifications. When a court is unable to accept a Book of Authorities at face value, it is placed in a very difficult position.
The Cory Report
26Mr. Hutchens submits that paralegals should be able to represent parties who are unable to afford lawyers and that paralegals can serve by expediting cases through the system. He relies in this regard upon the Report of the Honourable Peter deC. Cory, A Framework for Regulating Paralegal Practice in Ontario (Cory Report) (Ontario Ministry of the Attorney General, 2000). When Mr. Hutchens first appeared before me, he included the Executive Summary of the Report in his Authorities. At that time, he said that the full Report recommended that paralegals could appear in Divisional Court. However, on the return of the motion, after the adjournment to allow further time for preparation, he advised me that circumstances had prevented him from obtaining the full Report.
27I have done so and find the Report's references most helpful, particularly with respect to the specific comments about the ORHT and appeals therefrom. The Report speaks to the difficulties posed by "incompetent, unscrupulous" paralegals as opposed to those who are "dedicated, able paralegals" and opines that competency and licensing requirements will alleviate the problem. For ease of reference, the ORHT extract is reproduced in full as Appendix B to these reasons.
28The Cory Report cites a number of cases permitting paralegal representation in residential tenancy matters, including those referred to in these reasons and in Appendix A. It also notes 1109222 Ontario Ltd. v. Murad, now reported at [1999] O.J. No. 3642. In that Divisional Court appeal, where both parties were represented by counsel, reference is made to "unconscionable" conduct on the part of Mr. Hutchens. Coincidentally, Mr. Strashin, the lawyer in the case before me, also acted on the Murad appeal. I mention this case, however, only to note that it may explain why Mr. Hutchens did not provide the full report and underscores the importance of licensing and other requirements. At the same time, I am acutely aware that the conduct of one paralegal should not impact upon the rights of other paralegals. In the end, these issues may be resolved through the education, testing, licensing, regulating, disciplining, insuring, and good character requirements recommended in the Report.
29The Report is under consideration by the Attorney General and no doubt will be the subject of submissions by many organizations. Accordingly, it would be inappropriate to comment further. In the end, the courts are bound by the present law as the legislature has given it, unless and until the legislature decides to implement change.
The TPA and the SPPA
30In Mr. Hutchens' written submissions, he made the following argument:
The TPA, ss. 2 and 4 prevent the invocation of the SPPA, s. 3 from exempting any proceeding under the Tenant Protection Act from being governed by the Statutory [Powers] Procedure Act at both levels of the Superior Court.
31I do not understand that submission. From what he said in court, I believe Mr. Hutchens' argument is as follows:
The TPA provides a complete code both procedurally and substantively. The SPPA, s. 10 permits agents to appear before the ORHT. When an applicant requests relief in the court for excess claims or brings an appeal of an ORHT decision, the court hearing the claim or the appeal is governed by the SPPA. In other words, the court is sitting as though it was the tribunal. The excess claims provision (s. 193(2)), the appeal provision (s. 196) of the TPA, the interpretive provisions of the TPA (ss. 2 and 4) and rules 1.02 and 1.04, he says, support his argument.
32This argument stretches the clear meaning of the various provisions beyond recognition.
33I begin by agreeing with Mr. Hutchens that the TPA does provide a complete code of procedure by virtue of s. 164 as follows:
164(1) The Chair of the Tribunal shall establish a Rules and Guidelines Committee to be composed of the Chair, as Chair of the Committee, and any other members of the Tribunal the Chair may from time to time appoint to the Committee.
(2) The Committee shall adopt rules of practice and procedure governing the practice and procedure before the Tribunal under the authority of this section and section 25.1 of the Statutory Powers Procedure Act.
(Emphasis added)
1(1) "Rules" means the rules of practice and procedure made by the Tribunal or the Minister under section 164 of this Act and section 25.1 of the Statutory Powers Procedure Act; ("règles")
34Indeed, the Tribunal has extensive rules, which do what s. 164 says: provide for the practice before the ORHT.
35The SPPA does permit agent representation in s. 10: "a party to a proceeding may be represented by counsel or by an agent." "Proceeding" is defined as "a proceeding to which this Act applies" (s. 1) and the Act applies specifically to "a proceeding by a tribunal" (s. 3). Such representation by agents/paralegals before the ORHT is contemplated by the TPA itself in the s. 190(3) reference to "paid agents" in ss. 194(1) and 199(1) and by the ORHT's Rules of Practice (Ontario Rental Housing Tribunal, released June 17, 1998).
36It is clear, therefore, that agent representation before the ORHT is permitted. However, it would appear that such representation is not extended to appearances before this court. Further, the SPPA specifically says that it does not apply to proceedings in the Superior Court of Justice, nor does it apply to proceedings in which the Rules of Civil Procedure apply (s. 3(2)(b)(ii) and (c)).
37Only if the court is in fact acting as the tribunal (as argued by Mr. Hutchens) would paralegals have the right to appear before the court. To support the argument, Mr. Hutchens relies upon the wording of the TPA's excess claims and appeals sections:
193(2) A person entitled to apply under this Act but whose claim exceeds the Tribunal's monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Tribunal could have exercised if the proceeding had been before the Tribunal and within its monetary jurisdiction.
196(1) Any person affected by an order of the Tribunal may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
(2) A person appealing an order under this section shall give to the Tribunal any documents relating to the appeal.
(3) The Tribunal is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal.
(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,
(a) affirm, rescind, amend or replace the decision or order; or
(b) remit the matter to the Tribunal with the opinion of the Divisional Court.
(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.
38Mr. Hutchens also looks to ss. 2 and 4 of the TPA to support his position that excess claims and appeals are heard by the court under the TPA/SPPA Rules and procedures. Those sections provide:
2(1) This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.
(4) If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies.
39He also points to rules 1.02 and 1.04 of the court's Rules, which he says operate to oust the applicability of the Rules of Civil Procedure. Rule 1.04 requires that the "rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits". Rule 1.02 excepts from the application of the Rules any proceeding where "a statute provides for a different procedure". Mr. Hutchens argues that "different procedure" should be liberally construed to include the "different" procedure set out in the TPA/SPPA and that it is that procedure which should be applied to the determination of excess claims and of appeals. Although Mr. Hutchens submits that his argument applies equally to excess claims and to appeals, the two proceedings attract different considerations.
Excess Claims
40With respect to excess claims, Mr. Hutchens can find little support from the general provisions of the TPA and the Rules. The TPA provides the ORHT with comprehensive jurisdiction on matters affecting residential tenancies as well as procedural rules to guide those matters through the Tribunal. However, while the predecessor LTA provided procedures to bring the initial dispute to court, the present TPA provides procedures to bring the initial dispute to the tribunal. Further, the LTA prescribed a "hearing", which before has been described as a "summary procedure" before the court. No similar provision exists in the TPA/SPPA for s. 193(2) excess claims.
41With respect, I must differ from those of my colleagues who may take a different view. I note that in Conley v. Walker, in addition to Mr. Hutchens' "Reasons", I was given a photocopy of a handwritten endorsement, the first page of which was too dark to read, and a typed unsigned endorsement. Relying upon the brief typed endorsement, it simply presents the question of non-solicitor representation and the applicability of the Rules, then allows agent representation. It finds that the "TPA, like the LTA before it is a complete code of law and procedure for these summary matters and as such the Rules of Civil Procedure do not apply to the TPA". It also orders that "the matter is to proceed pursuant to s. 193(2) of the TPA + pursuant to the SPPA as an oral hearing."
42After having the benefit of time to consider this issue, I cannot agree that the TPA/SPPA apply to render the court "a tribunal" and, accordingly, one before which a paralegal may appear as of right.
43The reasons in Petsinis v. Escalhorda, [2000] O.J. No. 3324 (S.C.J.), of Nordheimer J. and those in Gill v. Residential Property Management Inc. (2000), 2000 22701 (ON SC), 50 O.R. (3d) 752, [2000] O.J. No. 3709 (S.C.J.), of Juriansz J. are both instructive as they consider the issue in depth. Petsinis v. Escalhorda concerned a landlord who had not been personally served with a motion seeking a contempt order against him with respect to an earlier repairs order that I had made. C. Campbell J. found the landlord in contempt. The landlord moved before Nordheimer J. to set aside both earlier orders. Mr. Hutchens argued that personal service of contempt orders was unnecessary. He said that the Rules of Civil Procedure requiring such personal service did not apply to TPA matters and that the TPA and its rules did not require personal service. Further, he argued that judges dealing with TPA, s. 193(2) matters were sitting, in essence, as members of the ORHT.
44In deciding to grant leave to appeal both the earlier orders to the Divisional Court, Nordheimer J. found he had good reason "to doubt the correctness of the assertion that the Rules of Civil Procedure do not apply to these proceedings" (para. 17). As well, Nordheimer J. addressed the issue of agent representation, noting that the LTA s. 118 provision was not carried forward in the TPA. In his reasons, Nordheimer J. drew the distinction between excess claims and appeals (at para. 25):
. . . I am aware of the order of O'Connor J. dated January 7, 1999 in Ip and Tsai v. King and King (court file no. V1124/ 98) in which agents were permitted to represent the tenants in a matter before the Divisional Court. I would observe, however, that in that case the Divisional Court was dealing with an appeal from a matter that had been determined before the tribunal. I can see a rationale for why the Divisional Court might conclude that agents who appeared before the tribunal ought to be able to appear before it on an appeal from the tribunal's decision. That conclusion does not appear to me to be determinative of whether agents should be allowed to appear on behalf of parties in proceedings which begin in this court as opposed to applying the normal requirements, found in Rule 15 of the Rules of Civil Procedure, which require parties to appear either in person or by counsel. While it might be suggested that to adopt the latter view would deprive parties, particularly tenants, [of] t he right of representation, it should be remembered that we are not dealing here with all landlord and tenant matters but only that small subsection of such disputes in which a claim for more than $10,000.00 is involved such that the jurisdiction to bring the matter before this court is invoked.
45For these reasons, Nordheimer J. granted leave to appeal to the Divisional Court. While perhaps fortunate for the parties, but unfortunate for a resolution of the issue, Mr. Hutchens advises that the Petsinis matter is settled, and will not therefore have the benefit of a determination by a Divisional Court panel.
46However, the issue was considered again days later by Juriansz J. in Gill v. Residential Property Management, supra, which gave leave to agents for both the tenant and the landlord to argue the issue of agent representation. As has happened in this case, the issue came down to the applicability of the Rules of Civil Procedure. Like Petsinis, Gill was made in the context of a s. 193(2) excess claim. After a discussion of the authorities, and noting that Mr. Hutchens had failed to refer him to Petsinis, Juriansz J. concludes (at para. 12, p. 757 O.R.):
My view is that the Rules of Civil Procedure apply to proceedings brought under s. 193(2) of the Tenant Protection Act, and consequently it is necessary for the agents to seek leave to appear.
47However, Juriansz J. finally disposed of the question on the basis that the landlord's claim was for punitive damages, a category of damages not provided under the TPA. Accordingly, he said (at para. 25, p. 760 O.R.):
I hold that this application is not brought under s. 193(2) of the Tenant Protection Act, as the tenant is seeking relief for which she is not entitled to apply under the Tenant Protection Act. Consequently, the Rules of Civil Procedure apply to the application. Agents may not represent the parties without leave from the court. I share Feldman J.'s view that it would be inappropriate for the courts to ignore governing legislation, and that having courts exercise discretion on a case-by-case basis will place clients at risk.
48Both Petsinis and Gill opine that in s. 193(2) TPA applications, agent representation is governed by rule 15.01(3) of the Rules of Civil Procedure as interpreted in Gotlibowicz. I agree.
Appeals to Divisional Court
49Are there different considerations that apply to appeal rights? To consider this, I look to the TPA, s. 196, which I again set out for convenience:
196(1) Any person affected by an order of the Tribunal may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
(2) A person appealing an order under this section shall give to the Tribunal any documents relating to the appeal.
(3) The Tribunal is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal.
(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,
(a) affirm, rescind, amend or replace the decision or order; or
(b) remit the matter to the Tribunal with the opinion of the Divisional Court.
(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.
50With respect to appeals to Divisional Court, Mr. Hutchens argued that the Rules do not apply. However, there is no other mechanism or procedure for an appeal to be initiated and progress to Divisional Court for hearing. Certainly, the TPA, the ORHT Rules and the SPPA make no such provision. The Rules of Civil Procedure do establish appeal procedures, including the requirements for Notices of Appeal, Appeal Books, Exhibit Books, facta, etc. I reject Mr. Hutchens' argument that these provisions do not apply to appeals under the TPA. Quite simply, once the proceeding reaches the appeal stage, it is no longer governed by the TPA, but by the Rules of Civil Procedure. Nothing in s. 196 specifies otherwise.
51In so finding, I rely upon Gotlibowicz v. Gillespie, supra, and Banyasz v. Galbraith, supra. However, I do take a different perspective from those decisions on whether a paralegal may seek leave to represent a party before a superior court. It is my view that the court is without jurisdiction to give such leave in light of s. 50 of the Law Society Act.
Leave
52Gotlibowicz has been taken by some as supporting the inherent jurisdiction of the court to allow paralegals to appear as agents in "special circumstances". With respect, I believe that is a misreading of the case. After reviewing the authorities, Feldman J. says [at pp. 408-09 O.R.]:
In my view, in light of the statutory provisions referred to above, to the extent that the court has discretion to allow a non-lawyer to represent a party as agent before it, as opposed to allowing a friend or family member to assist someone who is acting in person, it would be inappropriate for the court to ignore s. 1 of the Solicitors Act and s. 50 of the Law Society Act and, in effect, condone activity which the legislature characterizes as contempt of court and prohibits under penalty of prosecution. Furthermore, the statutory or legislative scheme which is reflected in a number of statutes which do provide for non-lawyers to appear, and which in some cases provide conditions of competence, suggests that in any other circumstance, non- lawyers are not to appear representing parties in court or other statutory proceedings.
There are no special circumstances in this case. The argument was not that this is a special circumstance, but that the court should allow agents to represent landlord and tenant parties before the Divisional Court in rent control matters because these matters are analogous to Landlord and Tenant Act matters.
53In my view, the brief reference to "special circumstances" by Feldman J. is merely a comment that, if she erred in finding that agents could not represent parties in such proceedings, then the court's discretion to grant leave would only be exercised in "special circumstances". But her primary ruling was that agents, as contrasted with family members or friends, could not represent parties in rent control matters. It is my view that neither Gotlibowicz nor Banyasz stand for the proposition that paralegals can do so with leave or in special circumstances.
54I look to rule 15.01(3), which only allows self- representation or solicitor representation, for support. The rule makes no reference to other representation, although such representation is contemplated by rule 15.01(2). Unquestionably, the court has inherent jurisdiction to control its own process, including who will have right of audience, and the court may exercise that inherent jurisdiction provided that it does not conflict with a statutory enactment, including a rule. Rules are generally considered to be additional to, rather than in substitution for, inherent jurisdiction. See Straka v. Humber River Regional Hospital (2000), 2000 16979 (ON CA), 51 O.R. (3d) 1, [2000] O.J. No. 4212 (C.A.) at para. 26 [p. 9 O.R.].
55In Baxter Student Housing Ltd. v. College Housing Co- operative Ltd., 1975 164 (SCC), [1976] 2 S.C.R. 475 at p. 480, [1976] 1 W.W.R. 1, Dickson J. opined that:
In my opinion the inherent jurisdiction of the Court of Queen's Bench is not such as to empower a judge of that Court to make an order negating the unambiguous expression of the legislative will. The effect of the order made in this case was to alter the statutory priorities which a court simply cannot do.
Further, Dickson J. noted that while Montreal Trust Co. v. Churchill Forest Industries (Manitoba) Ltd. (1971), 1971 960 (MB CA), 21 D.L.R. (3d) 75 at p. 81, [1971] 4 W.W.R. 542 (Man. C.A.), may be cited as a paradigm of the exercise of judicial discretion, Freedman C.J. was careful to say:
Inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or rule. Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case.
56While it may be argued that rule 15.01(3) is equivocal because it simply omits reference to agent representation, this is belied by the specific reference to other representation with leave in rule 15.01(2). Agents are not given a right of audience under any circumstances by rule 15.01(3).
57In any event, s. 50 of the Law Society Act is unequivocal in that it prohibits non-lawyers from practising law unless authorized by law. A paralegal representing a party in court is practising law and paralegals are not yet authorized to do so by law. Indeed, they are specifically prohibited by s. 50 of the Law Society Act, which is an unequivocal statutory enactment that occupies the field. Hence, the court does not have an inherent jurisdiction, irrespective of the circumstances, to allow a paralegal to represent/ practise law in our court.
Special Circumstances
58If I err in that conclusion, I will consider how a court might consider "special circumstances" or "leave" or "permission" and what process a litigant would employ to bring the question of paralegal representation before the court for determination.
59It is informative to compare rule 15.01(2) with the Family Law Rules, O. Reg. 114/99, rule 4(1)(c), which provides that a person may "be represented by a person who is not a lawyer, but only if the court gives permission in advance." The decisions of those sitting in the Family Branch of the Superior Court of Justice are most helpful as they have given recent consideration to the issue of "permission" since the November 15, 1999 enactment of the family court rule.
60In Stone v. Stone (2000), 2000 20767 (ON SC), 5 R.F.L. (5th) 151, [2000] O.J. No. 570 (S.C.J. (Fam. Br.)), Steinberg J. considered whether the party requesting paralegal representation had only to establish an informed decision in seeking such representation. (See R. v. Romanowicz (1999), 1999 1315 (ON CA), 45 O.R. (3d) 506, 178 D.L.R. (4th) 466 (C.A.).) In determining that a higher standard rested on the requesting party, Steinberg J. commented on Gotlibowicz v. Gillespie, supra, and found that rule 4(1)(c) was not a substantive change in the law but simply a codification of the requirement for special circumstances where special expertise justifies it (para. 9). He agreed with an earlier decision by Mazza J., in the same case, Stone v. Stone (1999), 1999 14253 (ON SC), 4 R.F.L. (5th) 433, [1999] O.J. No. 5266 (S.C.J. (Fam. Br.)), that the inability to afford a lawyer is not a special circumstance, and added that the paralegal in question had failed to demonstrate special expertise.
61On March 22, 2000, Rogers J. gave further consideration to the issue in Guy v. Guy, 2000 28011 (ON SC), [2000] O.J. No. 1038 (S.C.J. (Fam. Br.)), where she also refused the required permission in the absence of special skills. Rogers J. spoke to the limited judicial discretion and to the responsibility of the legislature with respect to representation of parties by lay persons. She also raised concerns about the lack of recourse by clients represented by paralegals to any errors and omissions insurance or to the disciplinary sanctions of a governing body.
62Smith v. Smith, 2000 28012 (ON SC), [2000] O.J. No. 1236 (S.C.J. (Fam. Br.)) expanded on the need for information as to the agent's expertise in family law. That case suggested affidavit evidence should be submitted specifying the requested paralegal's family law training and specifying prior approvals from other courts.
63Hardman J. further expanded on this in Carroll v. Carroll, 2000 28013 (ON CJ), [2000] O.J. No. 3969 (C.J.), finding that a judge should only consider the issue of paralegal representation upon a formal motion by a party with supporting material. That material, the case says, should address the appropriateness of paralegal representation in the circumstances of the matters at issue in the particular case, the extent of representation requested, and the education, expertise and insurance of the agent. Even if representation is granted, Hardman J. finds that further permission would be needed for each appearance before a court.
64I agree with my colleagues applying Family Law rule 4(1) (c) that where paralegals may appear with permission, consideration should not be given to the request unless sufficient materials are provided upon which a court may exercise its discretion. This should be done by means of a motion with supporting affidavit material from both the party and the paralegal.
65The party's affidavit should address the issue of availability of solicitor representation and informed consent to paralegal representation and must indicate an appreciation for the possible consequences of such representation.
66The paralegal's affidavit should include, at a minimum, the following:
(1) the extent of the representation requested, whether it be to prepare specific written materials, to make submissions on a specific motion, to examine other parties in examinations for discovery or cross-examinations, to represent in a pre-trial proceeding, to conduct a trial on behalf of the party, to argue an appeal, etc.;
(2) the qualifications of the paralegal, including education and experience;
(3) how those qualifications relate to the nature of the representation requested;
(4) indication of whether the paralegal is subject to the direction or supervision of anyone or any organization;
(5) evidence of good character;
(6) what insurance or compensation fund would be available in the event of the paralegal's negligence or fraud; and
(7) indication of whether the paralegal is knowledgeable about and prepared to abide by any relevant code of conduct.
67There may well be other matters that courts will consider appropriate pre-conditions to paralegal representation. Amongst those one might ask what mechanism is in place to adjudicate complaints regarding a paralegal's conduct or statements of account. One might also consider which party should bear the costs of such a motion for paralegal representation in light of the fact that such representation would be considered an indulgence granted to a party. Indulgences normally carry costs consequences.
68Absent legislative change and regulation on the issue of paralegals, it is important for the court to proceed cautiously before approving paralegal representation where such representation might increase the expense of the litigation, delay the court process or result in inadequate or incompetent representation of a party.
69The more complex the process or the issues, the less likely leave would be given for paralegal representation. For example, the conduct of a trial would require an appreciation of the trial process and rules of evidence, matters that are difficult even for those who have had the benefit of significant legal education. As well, it will be an exceptional case where a paralegal is granted leave to represent a litigant on an appeal, particularly an appeal on the law. Appellate work requires knowledge of evidentiary issues that may have arisen at the first level, a knowledge of the Rules, an ability to write legal argument, to prepare books of relevant authorities, to draft facta and to make concise argument. These skills are outside the education and experience of most of today's paralegals.
70As perhaps an overriding principle, one must be mindful that legal representation is not confined to drafting material or appearances in court. Legal representation obliges counsel to consider at all times and from time to time the merits of their client's case. A lawyer must, with each new piece of information, assess the facts and apply the law in order to advise the client properly whether he or she should proceed with the next step in the litigation. This is a heavy if not impossible burden to place on a paralegal in all but the most routine of cases.
71None of this is to say that paralegal representation in court is never helpful or useful. It may well be, depending upon the factors I have enumerated and on other factors that I no doubt have failed to consider. As the Cory Report indicates, licensing and regulation provisions for paralegals would eliminate many of the issues I have considered here. But unless such legislation is enacted, if it is, mechanisms are necessary for a judge in a particular case to determine whether a particular paralegal should be able to represent a litigant for a particular purpose.
"Stay" Motion
72With the determination that the Rules of Civil Procedure do apply to proceedings under the TPA, including appeals, I turn to the landlord's motion to lift the stay pending appeal.
73On October 3, 2000, the Registrar of the Divisional Court stayed the order of the ORHT dated September 13, 2000, pursuant to s. 25(1) of the SPPA and rule 63.03(5.1). The stayed order terminated the tenancy, ordered vacant possession by September 23, 2000 and set arrears, compensation and costs. On its face, the order says that it was not disputed by the tenant.
74In the circumstances of failing to file a dispute or appear, the tenants had the option under the TPA to either move to set aside the order granted or to have it reviewed. They failed to do either. The relevant provisions with respect to the default order and the ability to move to set aside are:
192(1) The Tribunal may make an order with respect to any of the following applications without holding a hearing if the application is not disputed:
An application to terminate a tenancy or to evict a person, other than an application based in whole or in part on a notice of termination under section 65.
A landlord's application for arrears of rent, compensation . . .
(2) The respondent may, within 10 days after the order is issued, make a motion to the Tribunal on notice to the applicant to have the order set aside.
(Emphasis added)
(3) An order under subsection (1) is stayed when a motion to have the order set aside is received by the Tribunal and shall not be enforced under this Act or as an order of a court during the stay.
(4) The Tribunal may set aside the order if satisfied that the respondent was not reasonably able to participate in the proceeding and the Tribunal shall then proceed to hear the merits of the application.
75In this case, the tenants decided not to move to set aside the order and to thereby obtain an immediate stay of the effect of eviction and judgment for arrears. Even if the tenants learned of the order outside the 10-day period, and I do not know whether or not this is the case, they could have applied for an extension of that time under Rule 13.3 of the ORHT Rules.
76In the alternative, the tenants could have applied to the ORHT under the combination of s. 169(1)(a) of the TPA and s. 21.2 of the SPPA for a review of its order. The mechanism for this review is contained in Rule 27 of the ORHT's Rules of Practice.
77Without taking either step, the tenants appealed the order. In these circumstances, the merits of the appeal are, at best, tenuous. Further, the tenants have failed to pay any rent since May of this year. I see no reason why they should not pay rent pending the appeal. Accordingly, I lift the stay so that the landlord may enforce paras. 2, 3 and 4 of the order, all of which deal with payment.
78The eviction order I treat differently. Under the predecessor LTA, rule 63.01(3) operated to stay, on the filing of a Notice of Appeal, any provision of the order appealed terminating the tenancy or directing that a writ of possession would issue. That rule is extant and there appears to be no similar provision with respect to the TPA. In the circumstances of this case, I am prepared to stay the issuance of a writ of possession provided that the appeal can be heard promptly. As this was a default order, and hence there is no further material needed from the tribunal, there is no reason why the merits of this appeal could not be heard expeditiously. If the tenants fail to pay the rent outstanding or fail to move the matter promptly to appeal, this motion may be returned to lift the partial stay with respect to the termination of the tenancy.
79I did not hear the landlord's motion with respect to security for costs. It is adjourned to a date to be fixed by Divisional Court, if such a date is requested by the landlord.
80If submissions are to be made regarding costs of the appearances before me, the tenants or counsel for the landlord may arrange a date to make those submissions through the Divisional Court Office.
Motion granted in part.
APPENDIX A
DATE STYLE OF CAUSE COURT JUDICIARY
June 10, King v. MTHA Div. Ct. McMurtry, C.J. 1994 File # DC 803/92 Montgomery, J. Carruthers, J.
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows Registrar No agent represenation and awards costs to appellant. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Jan. 10, ManuLife v. Molyneux Div. Ct. Steele, J. 1995 File # 868/94
ORDER SIGNED BY REASONS ON ISSUE
Not provided -- Give costs to the agent. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
July 4, Contu v. Boardman Div. Ct. Lofchik, J. 1995 File # D537/95
ORDER SIGNED BY REASONS ON ISSUE
Orders landlord Resolves ambiguity about may be represented representation in favour by agent on appeal. of landlord. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
April 11, Gotlibowicz v. Div. Ct. Feldman, J. 1996 Gillespie (1996), 1996 11764 (ON SCDC), 28 O.R. (3d) 402
ORDER SIGNED BY REASONS ON ISSUE __ __ Prima facie, agent not entitled to represent. _________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Nov. 4, Galbraith v. Banyasz Div. Ct. Steele, J. 1996 O.A.C. [1996] O.J. No. 3860
ORDER SIGNED BY REASONS ON ISSUE
DATE STYLE OF CAUSE COURT JUDICIARY
Jan. 7, Ip & Tsai v. King OCJ (GD) O'Connor, J. 1999 File No. V1124/98
ORDER SIGNED BY REASONS ON ISSUE
Leave to appeal to Judge No represent T. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Dec. 22, Edwards v. Hoogerwerf Div. Ct. Herald, J. 1999 File # 1180/99
ORDER SIGNED BY REASONS ON ISSUE
Preamble refers to Registrar No agent representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Feb. 25, Gibbs v. 2850 Jane SCJ Stinson, J. 2000 Street File # 00-CV-185245
ORDER SIGNED BY REASONS ON ISSUE
Consent order shows Registrar No agent representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
March 14, Cameron v. SCJ Loukidelis, J. 2000 Narducci File # 54850-00
ORDER SIGNED BY REASONS ON ISSUE
Order shows agent Registrar No representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Apr. 11, Sarkari v. Firaca Div. Ct. Weeks, J. 2000 File # 55071/00
ORDER SIGNED BY REASONS ON ISSUE
Consent order shows Registrar No agent representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Apr. 17, Budgello v. Rovira SCJ Wright, J. 2000 File # 00-CU-188060
ORDER SIGNED BY REASONS ON ISSUE
Consent order shows Judge No. agent representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Apr. 17, Henry v. Rovira SCJ Wright, J. 2000
ORDER SIGNED BY REASONS ON ISSUE
Consent order shows Judge No. agent representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Apr. 18, Mohn v. Hearthstone SCJ Archibald, J. 2000 Property File # 00-CU-188062
ORDER SIGNED BY REASONS ON ISSUE
Order shows agent Registrar No representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Apr. 25, Edwards v. Hoogerwerf Div. Ct. Clarke, J. 2000 File # 1180/99
ORDER SIGNED BY REASONS ON ISSUE
Cosent order shows Judge No agent representation.
DATE STYLE OF CAUSE COURT JUDICIARY
May 2, Not provided SCJ Lack, J. 2000
ORDER SIGNED BY REASONS ON ISSUE
-- -- Follows O'Connor J. and allows agent representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
May 7, Gavin v. Kuyumcuoglu SCJ Ground, J. 2000
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows agent Registrar Do not address issue. appearing. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
May 19, Currier v. Nunes SCJ Nordheimer, J. 2000 File # 00-CV-190123
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows agent Registrar Refer to Rules or SPPA representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
May 31, Addai v. Greenwin SCJ Ground, J. 2000 Property Management File # 00-CV-190577
ORDER SIGNED BY REASONS ON ISSUE
Unopposed by L, T Registrar Do not address issue. represented by agent, order that matter proceed under TPAA, 193(2) and SPPA. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
June 1, Gavin v. Kuyumcuoglu SCJ C. Campbell, J. 2000 File # 00-CV-190577
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows agent Judge Do not address issue. representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
June 20, McKee v. Wang SCJ Greer, J. 2000 File # 00-CU-190578
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows agent Unsigned Do not address issue. representation and TPAA and SPPA. ________________________________________________________________ DATE STYLE OF CAUSE COURT JUDICIARY
June 26, Addai v. Greenwin SCJ Cullity, J. 2000 Property File # 00-CV-190577
ORDER SIGNED BY REASONS ON ISSUE
Finds T permitted to be Judge -- represented by agents. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
July 24, Conley v. Walker SCJ Snowie, J. 2000 File #247-2000
ORDER SIGNED BY REASONS ON ISSUE
Orders agents to Endorsement provides represent T and that decision. Draft reasons matter proceed under s. apparently prepared by Mr. 193(2) TPA and SPPA and Hutchens showing extensive that Rules do not apply. list of authorities not signed by the judge. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
July 26, Gavin v. Kuyumcuoglu SCJ Swinton, J. 2000 File # 00-CV-118626
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows agent Unsigned Do not address issue. representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Aug. 9, Smith v. Poot SCJ Lang, J. 2000 File # 00-CU-19509
ORDER SIGNED BY REASONS ON ISSUE
Unopposed order shows Judge No agent representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Aug. 9, Petsinis v. SCJ Lang, J. 2000 Escalhorda File # 00-CV-195090
ORDER SIGNED BY REASONS ON ISSUE
Unopposed order shows Signature No agent representation. page missing ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Aug. 17, Petsinis v. SCJ C. Campbell, J. 2000 Escalhorda File # 00-CV-195090
ORDER SIGNED BY REASONS ON ISSUE
Unopposed order shows Registrar No agent representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Sept. 5, Freeman v. Peterson Div. Ct. Jenkins, J. 2000 File # 56334/00
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows agent Unsigned No representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Sept. 5, Riccardi v. Anthony Div. Ct. Eberhardt, J. 2000 File # 56147/00
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows agent Unsigned Do not address this issue. representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Sept. 7, Riccardi v. Anthony Div. Ct. McIsaac, J. 2000 File # 56147/00
ORDER SIGNED BY REASONS ON ISSUE
Orders agent Unsigned Persuaded in absence of representation under opposing submissions s. 10, SPPA. No leave that agent entitled to needed. appear. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Sept. 11, Currier v. Nunes SCJ H. Sach, J. 2000 File # 00-CV-190123
ORDER SIGNED BY REASONS ON ISSUE
-- -- Reasons show agent representation. Provide costs to agent. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Sept. 11, Petsinis v. SCJ Nordheimer, J. 2000 Escalhorda File # 00-CV-195090
ORDER SIGNED BY REASONS ON ISSUE
Agent appeared. -- Grants leave to appeal on issue. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Sept. 13, Masuzzo v. Mancini SCJ Backhouse, J. 2000 File # 00-CV-194897
ORDER SIGNED BY REASONS ON ISSUE
-- -- Endorsement orders proceeding under TPA and SPPA and permits T to appear by agent. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Sept. 19, Cavalier v. Lamror SCJ Boyko, J. 2000 File # 3676/00
ORDER SIGNED BY REASONS ON ISSUE
Preamble, unopposed shows agent representation.
DATE STYLE OF CAUSE COURT JUDICIARY
Sept. 22, Gill v. Residential SCJ Juriansz, J. 2000 Property File # 195628
ORDER SIGNED BY REASONS ON ISSUE
-- -- Refused leave to agent representation. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Sept. 29, Dovale v. MTHA SCJ Hoilett, J. 2000 File # 00-CV-197768
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows agent Unsigned Do not address issue. representation with leave. ________________________________________________________________
DATE STYLE OF CAUSE COURT JUDICIARY
Oct. 10, Gavin v. Kuyumcuoglu SCJ Cullity, J. 2000 File # 00-CV-188626
ORDER SIGNED BY REASONS ON ISSUE
Preamble shows agent Unsigned Do not address issue. representation with leave. ________________________________________________________________
APPENDIX B
REPORT
A FRAMEWORK FOR REGULATING PARALEGAL PRACTICE IN ONTARIO
The Honourable Peter deC. Cory
Ontario
2000
CHAPTER IV: AREAS OF PERMISSIBLE PRACTICE -- PROVINCIAL BOARDS AND TRIBUNALS
ii) Ontario Rental Housing Tribunal
I would like to thank the members of the Ontario Rental Housing Tribunal for their very helpful submissions. Again, it is apparent that there are both incompetent, unscrupulous, parasitic paralegals, who are a disgrace to the community, and hard-working, dedicated, able paralegals appearing before this Tribunal. This Tribunal welcomes the competent paralegals. I think the licensing requirement and the passing of a competency examination should be able to eliminate the "bad and the ugly" leaving only the good. There is general agreement from the lawyers' groups that licensed paralegals should be permitted to appear before this Tribunal. The competent paralegals have done very commendable work in this field and should be authorized to continue to do so.
It cannot be forgotten that this Tribunal is of great importance to members of the public. It is, after all, concerned with shelter, one of the basic necessities of life. For example, when funds are scarce, an increase in rent will have great significance for a family. Indeed, it might have quite tragic consequences. Tenants, as well as landlords, should have access to competent paralegals to present their position, and to act on their behalf at a reasonable fee.
It has been recommended that all licensed paralegals must have passed a qualifying examination to appear before this specialized Tribunal. I am pleased to note that accredited community colleges, particularly Sheridan Community College, are providing courses that include specific reference to landlord and tenant matters, and procedures and advocacy before this Tribunal. As well, they are prepared to provide a course for those who wish to take the competency examination. Indeed, Sheridan College indicated that it would make the courses available in the evening as well as during the day.
In my view, if a licensed paralegal has established the requisite competence to appear before this Tribunal then that paralegal is competent to take the first level of appeal of its decision. In Coutu v. Boardman, [See Note 1 at end of document] a decision of the Justice Lofchik sitting as a member of the Divisional Court, it was held that the landlord might be represented by an agent of her choice in the appeal. In addition, the 1999 decision of Justice Terrance O'Connor of the Divisional Court in Lai Sheung Ip v. King [See Note 2 at end of document] authorized an agent to appear for the appellant tenants on an appeal from the Ontario Rental Housing Tribunal. King v. Metropolitan Toronto Housing Authority [See Note 3 at end of document] was heard by a panel of three judges of the Divisional Court with Chief Justice Mr. McMurtry presiding. It considered an appeal under the previous Landlord and Tenant Act, [See Note 4 at end of document] and ordered that costs be paid to an agent who was a paralegal.
Other decisions of the Divisional Court have refused to permit paralegals to appear on appeals under the previous Landlord and Tenant Act, and have held that the parties must appear in person or by a solicitor. [See Note 5 at end of document] These cases have referred to the need for "special circumstances" before an agent would be allowed to represent a party on an appeal. Yet, in my view, it is significant that at least some of the judges of the Divisional Court have recognized the utility of allowing agents to appear on the first level of appeal.
In passing, I must refer to the reasons of the Divisional Court in 1109222 Ontario Ltd. v. Murad. [See Note 6 at end of document] There it was observed that the conduct of the paralegal appearing for the landlord on an appeal from a decision of the Ontario Rental Housing Tribunal was, to say the least, unfortunate. If paralegal regulation had been in force at that time, his conduct would have been the subject of an investigation. It is unfortunate that this person, who was put forward as a leading member of a paralegal organization, should have acted in such a manner that his conduct was the subject of severe criticism.
Qualified paralegals should be authorized to appear at the first level of appeal from this Tribunal. It is true that an appeal may set a precedent. However, it seems unnecessary, and unrealistic to prohibit licensed paralegals from taking the appeal if they are requested to do so by a member of the . . .
Notes
Note 1: Unreported (Ont. Div. Ct., File No. D537/95, July 4, 1995.)
Note 2: Unreported (Ont. Div. Ct., File No. V11124/98, January 7, 1999).
Note 3: Unreported (Ont. Div. Ct., File No. DC 803/92, June 10, 1994).
Note 4: R.S.O. 1990, c. L.7.
Note 5: See Gotlibowicz v. Gillespie (1996), 47 C.P.R. (3d) 96 (Ont. Div. Ct.) and Banyasz v. Galbraith (1996), 94 O.A.C. 75, 7 C.P.C. (4th) 307 (Div. Ct.).
Note 6: Unreported (Ont. Div. Ct., File No. 465/98, September 17, 1999).