Ricketts v. Veerisingnam, 2025 ONSC 841

CITATION: Ricketts v. Veerisingnam, 2025 ONSC 841

DIVISIONAL COURT FILE NO.: DC-24-1508 and DC-24-1653-00JR

DATE: 20250619

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D. Newton R.S.J., D.L. Corbett, S. Nakatsuru, JJ.

BETWEEN:

Jennifer Ricketts

Appellant/Applicant

• and -

Sureshkumar Veerisingnam, Komathini Sureshkumar and Landlord and Tenant Board

Respondents

COUNSEL:

Alyn James Johnson, for the Appellant/Applicant

Jonathan Virtue, for the Respondents Sureshkumar

Nicola Mulima, for the Landlord and Tenant Board

HEARD at Toronto: January 23, 2025

REASONS FOR DECISION

D. Newton R.S.J. (Concurring with D.L. Corbett J.)

[1] While I am sympathetic to the arguments raised by the appellant, I agree with my colleague D.L. Corbett J. that the issue of whether the "ineffective assistance of counsel" ground applies to proceedings before the LTB should not be decided by this Court but by the LTB when that issue is raised before it. I agree with his conclusion expressed at paragraph 43 and his disposition of the appeal expressed at paragraphs 57 to 59 of his reasons.

“D. Newton R.S.J.”

D.L. Corbett J.

[2] I have had the benefit of reading the reasons of Nakatsuru J. and I disagree with several points of his analysis and his proposed disposition of these proceedings, notwithstanding Mr Johnson’s excellent submissions.

[3] My colleague would find that the Appellant/Applicant’s paralegal failed to advance an argument that the Respondents’ eviction notice was made not in good faith, that this failure was “ineffective assistance” of a legal representative, that such an argument should be given effect on an appeal from the Landlord and Tenant Board, and thus that the proceedings should be returned to the LTB for a new hearing on the merits.

[4] I would find that the Appellant/Applicant (hereinafter the “Appellant”) may not raise the “ineffective assistance” in this court because (i) she failed to raise it at first instance before the LTB when she had about ten weeks to do so between the end of the hearing and the release of the LTB’s decision; and (ii) she failed to raise it before the LTB during Reconsideration proceedings. Had I concluded that the Appellant should be permitted to raise this issue for the first time in this court, I would have dismissed the appeal because “ineffective assistance” is not a basis for interfering with a civil judgment: the Appellant’s remedy for alleged ineffective assistance lies in civil proceedings against her representative and/or a complaint to his professional regulator, and not a setting aside of a decision that discloses no reversible error on the basis of the evidence and arguments made below.

[5] Had I concluded that it was arguable that “ineffective assistance” could be a basis for interfering with the result below, I would not see this court adjudicate the “ineffective assistance” argument at first instance, but rather, I would quash the LTB’s Reconsideration decision and direct that the Reconsideration process be run anew, with the Appellant able to raise the “ineffective assistance” argument there. In my view the LTB, and not this court, should (i) rule on whether ineffective assistance is available in proceedings before the LTB; and (ii) if the answer to (i) is yes, establish the test(s) and process(es) to be followed to raise such arguments before the LTB.

[6] With respect, the penumbra of a new principle – or the application of an established principle in a new context – can be much wider than the facts of the specific case that give it rise. I appreciate that security of tenure for residential tenants is an interest of greater social significance than may be reflected in the dollar value of the underlying dispute. However, residential tenancy disputes arise in real time, in a real context, and there are important interests of both landlords and tenants that require a conflict resolution process that is reasonably fast, efficient, and inexpensive. Proceedings before the LTB often involved parties who are represented by non-licensed agents, friends, family members, and many parties who self-represent. Why should these persons have less entitlement than those who have retained licensed professionals to a “do over” when their representatives fail to do a good job, or they themselves fail to approach their own case in the most effective way?

[7] Unlike in the criminal context, in civil proceedings the other side has an important interest in the principles that (i) parties are responsible for the manner in which their own case is presented; and (ii) decisions reached after following the prescribed process should have final effect. Here, on the facts as my colleague would find them, the Appellant’s representative failed to advance an argument of importance to the Appellant. The Appellant should have recourse against her paralegal to pursue a claim, but that is between the Appellant and her paralegal. From the perspective of the Respondents, they served a valid notice to evict in the fall of 2022. Because of delays at the LTB, the hearing into their request was not completed until October 2023, and the decision not rendered until January 2024. As a consequence of this appeal, they have been delayed a further year before an appeal hearing, and the time in which this decision was under reserve. Now, through no fault of the Respondents, my colleague would find that they must go back to the beginning of the process. I see no reason why the Respondents should bear the loss occasioned by the Appellants’ paralegal’s failure to advance an argument at the original hearing. That loss should fall on the Appellants, and they may decide whether to seek recourse for it against their paralegal.

Overview

[8] The Respondents own a three-bedroom house on Atherton Avenue in Ajax, Ontario, which they have rented to the Appellant since 2016.

[9] The Respondents own another house, in which they live together with their children and Mr Veersingnam’s 83-year-old mother, Ms Naeanashannutam.

[10] On October 3, 2022, the Respondents gave notice to the Appellant that were terminating the tenancy, with an effective termination date of December 7, 2022, so that Ms Naeanashannutam could move into the house.

[11] The Appellant contested the termination and the dispute was heard by the LTB by videoconference on September 23 and October 27, 2023. Ms Naeanashannutam gave evidence on the first day of the hearing.

[12] On January 3, 2024, The LTB granted an order terminating the tenancy effective February 29, 2024 (2024 ONLTB 2758). On January 23, 2024, the Appellant sought Reconsideration of this order. By order dated January 25, 2024, the LTB denied the Reconsideration request (2024 ONLTB 8582).

[13] In the original decision, the LTB found as follows (at paras. 8, 16):

The Landlords called [Ms Naeanashannutam] as a witness who is the mother of one of the named Landlords. She has been residing with her daughter for 10 years and essentially due to the aging children of the Landlords the house just does not have enough space for all of them. [Ms Naeanashannutam] testified that she is not in overly good health and has some complications that [require] her to have a [quieter] surrounding and the additional space would be better for all of their [family’s] needs. [Ms Naeanashannutam] is currently sharing a room with her granddaughter. The rental unit is a 10-minute drive from the Landlords’ personal residence.

I accept the [Landlord’s] evidence as per their reasons or motives for serving the notice of termination and I believe that the Landlords’ parent has a genuine intention to move into the rental unit. As such I find that the Landlords’ application is granted and the tenancy will terminate.

[14] The LTB then considered whether the Appellant should be granted relief from eviction pursuant to s. 83(2) of the Residential Tenancies Act and found as follows (para. 23):

I understand that this notice was served in October of 2022, both parties involve senior citizens with health conditions, however it is the Tenants that are facing eviction and potential homelessness. Although it may be uncomfortable for the Landlords’ family at the moment, some additional time for the Tenants to find alternative accommodation will not be overly prejudicial.

The LTB terminated the lease effective February 29, 2024.

[15] In the Reconsideration Decision, the LTB found as follows (at para. 3):

Orders granting relief from eviction involve an exercise of the original hearing member’s discretion and are entitled to deference. Discretionary decisions should not be reviewed where the result is within the range of reasonable and acceptable outcomes. At paragraphs 20 to 24 of the order the hearing member considers the medical status of the Tenant and her mother based on the evidence presented at the hearing, as well as the Landlord’s circumstances, and ultimately determines that a delayed eviction to February 29, 2024 is not unfair in the circumstances. The member provides sufficient reasons for why he made that determination and I find the decision to be within the range of reasonable and acceptable outcomes.

[16] The Appellant appealed to this court by Notice of Appeal dated January 31, 2024, and subsequently applied to this court for judicial review.

Jurisdiction and Standard of Review

[17] An appeal lies to the Divisional Court on a question of law pursuant to s. 210 of the Act.

[18] Despite any right of appeal, the Divisional Court has jurisdiction to hear Ms. Ricketts’ judicial review application: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6(1). Judicial review is a discretionary and extraordinary remedy, but the existence of a right of appeal limited to questions of law does not in itself amount to a discretionary bar nor preclude a judicial review application for questions of fact or mixed fact and law: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, para. 57.

[19] Where a party brings both an appeal and an application for judicial review from the same decisions, both proceedings are heard together by the same Divisional Court panel: see Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, 25 C.C.C.L. (6th) 1, at paras. 55-56, rev’d. on other grounds, 2024 SCC 8; Shearer v. Oz, 2024 ONSC 1723 (Div. Ct.), at para. 30.

[20] On the appeal, the standard of review is correctness for questions of law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, para. 8; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, para. 37. There is no appeal with respect to questions of fact or questions of mixed fact and law except where there is an extricable legal principle, which is reviewable on a correctness standard: Housen, paras. 26-37.

[21] Whether there has been a breach of the duty of procedural fairness is a question of law, subject to correctness review on appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, paras. 26-30, 129, 169, 179. The degree of procedural fairness required is determined by reference to all the circumstances of the case: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, paras. 21-28; Vavilov, para. 77.

[22] With respect to the application for judicial review, this court will not entertain the application or grant a remedy to the extent that the substance of the application is adequately addressed by another process, that “other process” in this case being the appeal: see Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, paras. 40-45. Therefore, the only issues that this court will entertain for judicial review are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion: Shearer, para. 32. Upon judicial review, the presumptive standard of review is reasonableness: Vavilov, at paras. 23-25.

[23] Reasonableness review “finds its starting point in the principle of judicial restraint” but remains “a robust form of review” rather than “a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability”: Vavilov, para. 13. A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov, para. 85. The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov, paras. 31, 92-93.

[24] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on that basis, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov, para. 100.

Issues Before this Court

[25] As noted by my colleague, the Appellant raises several grounds of appeal and review. My colleague would find that “[n]one [of these grounds] has merit other than… ineffective assistance” by the Appellant’s paralegal representative at the LTB hearing. My colleague would find that the “ineffective assistance” argument has merit, and he would quash the eviction order and direct a new hearing at first instance before the LTB.

[26] I disagree with my colleague in all respects on the issue of ineffective assistance. I agree with my colleague that none of the other issues in these proceedings has merit.

A. Issues Other Than “Ineffective Assistance”

[27] Oral submissions focused primarily on the “ineffective assistance” argument, addressed below. In addition to this argument, the Appellant raised the following grounds of appeal and review:

(a) the LTB’s Section 83 conclusions are unreasonable;

(b) there were procedural fairness errors at the hearing;

(c) the finding of good faith intention to occupy Is unreasonable; and

(d) the reviewing member erred and was unreasonable is failing to consider new evidence.

[28] I would not give effect to any of these arguments.

[29] As acknowledged at para. 45 of the Appellant’s Factum, the LTB “has broad discretion” under s.83(1) of the Act to delay or refuse an eviction. The Appellant asks this court to re-weigh the evidence to conclude that the “short delay” approved by the LTB is unreasonable. That is not the role of this court. The LTB exercised its discretion in accordance with the terms of the Act, and its related factual findings were available on the record.

[30] The procedural fairness arguments lack substance: it is within the LTB’s discretion to permit non-official interpreters to assist with interpretation at Board hearings, including persons who are not “neutral” (frequently a family member may assist in this regard) and there is no basis for the argument that it was procedurally unfair for the LTB to decline to require Ms Naeanashannutam to re-attend for further testimony on the second day of the hearing.

[31] The LTB correctly stated the law related to a landlord application to terminate a tenancy so that the premises may be used by a family member, and the factual findings made by the LTB on this issue were available on the record: the LTB accepted Ms Naeanashannutam’s evidence, which it was entitled to do.

[32] Finally, the LTB quite properly declined to consider the tendered fresh evidence on reconsideration on the basis that it should have been tendered at the original hearing, a decision that is correct in principle.

B. Argument Based on “Ineffective Assistance”

New Issue on Appeal and the Fresh Evidence Motion

[33] My colleague would consider the ineffective assistance argument in this court, at first instance, and would admit fresh evidence from the Appellant on this issue. He notes “[a]s normally is the case when ineffective assistance of counsel is raised as a ground of appeal, the fresh evidence motion is granted in the interests of justice.” My colleague cites appellate authority in support of this proposition from the Court of Appeal in criminal appeals in which the ineffective assistance argument was argued.

[34] This is not an appeal from the trial decision of a criminal court. It is an appeal and application for judicial review from an administrative decision over a residential tenancy which was subject to a reconsideration process before the LTB. It is in this context that this court must consider whether to permit the Appellant to raise a new issue in this court [see: Perez v. Governing Council of the Salvation Army of Canada, (1998), 1998 7197 (ON CA), 42 OR (3d) 229 (CA); Kaiman v. Graham, 2009 ONCA 77, applying the principle stated in dissenting reasons in R. v. Brown, 1993 114 (SCC), [1993] 2 SCR 918, para. 20], and whether to admit the Appellant’s proposed fresh evidence for the first time in this court. The test for admitting fresh evidence on appeal is as stated by The Supreme Court of Canada in Palmer v. The Queen (1979), 1979 8 (SCC), 50 CCC (2d) 193 at 205:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases... ;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief;

(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[35] The original hearing before the LTB took place over two days. The Appellant was self-represented on the first day of the hearing, September 25, 2023. One of the respondents and Ms Naeanashannutam testified on the first day of the hearing. At the hearing, the Appellant was clear with the LTB that she was taking the position that the eviction was not in good faith.

[36] Between the first day of the hearing and its resumption on October 27^th, the Appellant retained a paralegal to assist her. As quoted by my colleague in his reasons, at the start of the resumption, the paralegal told the LTB that the Appellant was not contesting whether the eviction was in good faith, but instead was pursuing her request that the eviction be deferred for one year in light of the Appellant’s personal circumstances. The LTB noted this concession, as reflected in the transcript, and then the hearing resumed and was completed on October 27^th.

[37] The Appellant’s position is that her paralegal abandoned her principal argument contrary to her instructions. It is on this basis that she alleges ineffective assistance by her paralegal and requests that the eviction order be quashed and a new hearing ordered.

[38] Integral to this argument is the Appellant’s position that, because of disability, she was unable to appreciate and address the shortcomings in her paralegal’s representation in a timely way before the Board. My colleague accepts this position on the basis of the unchallenged evidence of the Appellant: the paralegal did not provide evidence, though served with the motion materials, and the Respondents did not cross-examine the Appellant on her evidence.

[39] I would not accept the Appellant’s evidence about the impact of her disability on her ability to address before the LTB the shortcomings in her paralegal’s representation of her, for the following reasons:

i. Although I would accept that the Appellant was unable to intervene at the hearing when her paralegal told the LTB that his client was no longer pursuing an argument that the termination was in bad faith, this does not explain the Appellant’s failure to address this issue with the Tribunal between the end of the hearing and release of the Tribunal’s decision – a period of about ten weeks.

ii. The Appellant’s claim that she did not understand what her paralegal had done until she received the Tribunal’s decision is incredible. The Tribunal’s decision does not mention the impugned concession made by the Appellant’s paralegal. To the contrary, the Tribunal’s decision states and decides the question of the Respondents’ good faith – from which an objective reader would understand that the issue had not been conceded at the hearing. The Tribunal’s reasons do not state or rely upon “what her paralegal had done” and so cannot be a basis upon which the Appellant could have understood, for the first time, that her paralegal had conceded the issue at the hearing.

[40] Further, I would not accept the Appellant’s submission that she was unable to address the shortcomings in her paralegal’s representation during the Reconsideration process for the following reasons:

i. In the knowledge that her paralegal had disobeyed her instructions and failed to pursue an important issue before the LTB, that Appellant continued to retain and instruct the paralegal for the purpose of seeking reconsideration before the LTB. This decision was unreasonable on its face and is not explained by the Appellant’s disability.

ii. The Appellant’s paralegal told the Appellant, in writing, that he would not be advancing arguments on reconsideration addressed at alleged lack of good faith by the Respondents. Even in the face of this clear statement, the Appellant continued to retain the paralegal for purposes of the Reconsideration process. If the Appellant wished to pursue this argument on Reconsideration, her decision to continue to retain the paralegal in the face of his clear communication that he would not advance the issue, was unreasonable and is not explained by the Appellant’s disability.

iii. I would not accept the Appellant’s submission that she could not terminate her retainer of her paralegal because of the short deadline to seek Reconsideration, the difficulty of locating a representative, and her disabilities. The deadline for Reconsideration is thirty days, more than sufficient time for the Appellant to find a new representative or to self-represent before the LTB. At minimum, there is no reason why the Appellant could not have raised the issue of ineffective assistance, requested time to make further submissions on the issue, and advised the LTB of the impact of her disability on her capacity to address the issue within thirty days. This point is demonstrated beyond debate by the Appellant’s original Notice of Appeal – which was delivered on January 31, 2024 – less than thirty days after the original decision. In two clear, concise paragraphs, the Appellant sets out the “ineffective assistance” issue as a ground of appeal. If the Appellant could deliver the Notice of Appeal within thirty days – raising the shortcomings in her paralegal’s representation of her – then she could have raised the issue on Reconsideration within thirty days.

[41] In my view, the Appellant was obliged to raise her “ineffective assistance” argument at the earliest reasonable opportunity before the LTB. She could have, but did not, raise it during the ten-week interval between the end of the hearing and release of the LTB’s decision. She could have, but did not, raise it during the Reconsideration proceedings. I would find that the proposed fresh evidence does not meet the first branch of the Palmer test, and I would not permit her to raise the issue for the first time in this court.

[42] Further, it is not clear to me that the proposed fresh evidence would have been potentially decisive before the LTB or could have affected the result (the second and fourth branches of the Palmer test). However, it is difficult to assess the potential impact of the proposed fresh evidence, since the LTB decided the very issue that the Appellant argues her paralegal had withdrawn before the Tribunal. Given this context, had the Appellant satisfied the first branch of the Palmer test, I would have directed that the request to re-open the LTB hearing be directed back for fresh Reconsideration at the LTB. I address the details of this alternative approach below, when considering my colleague’s approach to remedy.

[43] For these reasons – the Appellant’s failure to meet the first branch of the Palmer test and her failure to raise this issue prior to release of the LTB’s decision or during the Reconsideration process, I would dismiss the appeal.

Ineffective Assistance in Civil Proceedings

[44] In civil proceedings, parties are expected to take the steps necessary to prepare and present their cases. They are expected to bring all their evidence and make all their arguments. They are not entitled to reopen the evidence or make additional argument after the proceedings are concluded other than in exceptional circumstances. Once evidence and arguments are complete, the tribunal decides the issues and the dispute is decided. The process can be long, complicated and expensive, but once it is finished and a decision is rendered, the dispute is at an end. This principle – finality – is a core principle of the civil justice system: Peoples Trust Company v. Atas, 2018 OSCJ 58, aff’d 2019 ONCA 359, leave to app. to SCC denied 2020 29393 (SCC).

[45] Reversing a tribunal decision because of ineffective assistance of counsel offends the principle of finality. It deprives the successful party of a decision to which it is entitled on the merits presented. It delays the time in which the parties may put the dispute behind them and move on.

[46] In the criminal justice system, the courts have recognized a ground of appeal of ineffective assistance of counsel. It is raised far more often than it succeeds. When it succeeds, the principle of finality is offended, but in the interests of guarding against convicting an innocent person. The other side – the Crown – can bear the cost of such a reversal. This principle has been extended to some other contexts – immigration and child protection proceedings – in which, by analogy to criminal cases, very important interests are at stake, state or quasi-state actors are the adverse parties, and it has been concluded that the offence to the finality principle is merited in the interests of guarding against an unjust result.

[47] So far as I am aware, this would be the first case in which an Ontario court extended the defence of ineffective assistance to a purely private dispute, between private actors, over property and pecuniary interests. I would not extend the principle as a defence at first instance in this court. The offence to finality is simply too great. The delay in this case has already been terribly unjust to the Respondents. Any injustice to the Appellant is a matter she may pursue against her paralegal; I would not impose the cost of remedying any injustice that has resulted on the Respondent, who is not in any way responsible for it. As held by the Court of Appeal in Sabaratnam v. Yohanathan, 2024 ONCA 845, para. 8:

… even accepting that there was ineffective assistance, that contention does not go to the issue whether summary judgement was properly granted. Rather, the principles described by this court in OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, at paras. 44, are applicable in this case. In Oz, this court wrote that allegations of ineffective assistance of counsel at trial in civil matters are properly raised by way of a negligence action by the client against the lawyer. Although there may be some cases in which the nature of the claim gives rise to a public interest that transcends the private interests of the litigants and allows for ineffective assistance of counsel as a ground of appeal, this is clearly not such a case.

[48] This said, I would not preclude the LTB from considering and deciding a timely argument of ineffective assistance within the LTB process. In the case at bar, if, on Reconsideration, this issue had been referred back to the original adjudicator promptly, they could have determined whether the argument could have had a bearing on the result and, if so, they could have reopened the hearing process without doing everything over again, on an appropriately expedited schedule. All of this could have been done within a matter of a few weeks from the date of the original decision, greatly attenuating the prejudice to the Respondent of providing a remedy to the Appellant for the ineffective assistance of her own representative. It would be in this context that it would be for the LTB to decide whether a request for Reconsideration should be entertained on the basis of ineffective assistance at the original hearing, bearing in mind applicable appellate authority and the institutional context of LTB proceedings. Nothing in my reasons should be taken to direct how such an issue ought to be decided on Reconsideration – rather, it is to say that the LTB would not be precluded from considering and deciding such an argument.

Remedy

[49] My colleague would direct this case back for a fresh LTB hearing at first instance. He does so on the basis that there would be no point in sending it back for fresh Reconsideration since the result of fresh Reconsideration would be “inevitable”.

[50] I do not see it that way.

[51] As I explain above, I would find that the Appellant should not be permitted to raise the issue, having failed to do so between the end of the hearing and the release of the original decision and having failed to raise it during the Reconsideration proceedings. If fresh Reconsideration would lead to an “inevitable result”, in my view that result would be to dismiss the request.

[52] If the LTB came to a different conclusion on my first point, it could refer the request back to the original decisionmaker, who would have been in a good position to assess whether the “ineffective representation” argument would have made a difference to the result. For three reasons, I conclude that is not at all clear that it would have.

[53] First, the issue that was decided by the LTB – the period to be granted to the Appellant prior to termination of the lease – is closely related to the argument that the eviction is not in good faith. Assessing Ms Naeanashannutam’s desire to move into the rental premises, and the circumstances giving rise to that desire, were part of the LTB’s task in determining what period of grace to grant the Appellant. The Board’s conclusion – that the period should be extended – but to 54 days and not the requested 365 days – and the basis given for that conclusion – the competing interests of two elderly persons with health issues – makes it clear that Ms Naeanashannutam’s situation and need were considered by the LTB. It would be for the LTB to consider whether any intended additional evidence or arguments could have so moved the LTB to conclude that the entire eviction was not in good faith, rather than that Ms Naeanashannutam sincerely intended to move into the rental premises.

[54] Second, Ms Naeanashannutam testified on the first day of the hearing. The Appellant was self-represented that day and had the opportunity to cross examine Ms Naeanashannutam. It was for the Appellant to put the “bad faith” theory of the case to Ms Naeanashannutam during that cross examination. The Appellant faults her paralegal for failing to request that Ms Naeanashannutam be recalled for cross examination on the second hearing date. Such a request would have been within the discretion of the LTB to grant, but it would be highly unusual to require an elderly witness who had completed her evidence to reattend for further cross examination because a self-represented party neglected to ask her questions that she subsequently wished she had asked. The Appellant’s paralegal cannot be faulted for any failure to cross examine Ms Naeanashannutam on the first day of the hearing. On Reconsideration, the LTB would have been well positioned to consider whether such a request would have been granted, if made on the second day of the hearing – and I conclude that it is most probable that it would not have been. This, in turn, would affect the tenability of an argument that ineffective representation had an impact on the result: under the principle in Browne v. Dunn (1893), R. 67 (HL). the Appellant would presumably have been precluded from arguing lack of good faith without putting that to Ms Naeanashannutam in cross examination.

[55] Third, my colleague would decide, not just for this case, but as a precedent for future cases, that ineffective assistance should apply as a defence in LTB proceedings. He would decide that when the issue was not raised below, and so without the benefit of (and the deference that should be afforded to) an LTB decision on this issue. In my view this is overreach by this court that may have significant implications for future LTB proceedings. If I had concluded that the Appellant had raised a proper basis for pursuing an argument of ineffective assistance below, I would have returned this matter to the LTB for Reconsideration so that the LTB could decide the issue at first instance.

[56] I appreciate that the particulars of the “ineffective assistance” in this case are shocking on the record before this court. It will be a rare day, one would hope, that a licensed legal professional would disobey their client’s clear and direct instructions. But the principle invoked is broader than the particulars of the case at bar. If this policy issue had to be answered in this case I would answer with an unequivocal “no” and would conclude, as the Court of Appeal did in another context (quoted above), that:

[a]lthough there may be some cases in which the nature of the claim gives rise to a public interest that transcends the private interests of the litigants and allows for ineffective assistance of counsel as a ground of appeal, this is clearly not such a case.

Had I concluded otherwise, I would have left it to the LTB to wrestle with the competing interests and policy questions at first instance, rather than deciding them at first instance in this court.

Disposition

[57] I would dismiss the appeal and the application for judicial review. As agreed by the parties, there shall be no order as to costs.

[58] Before the LTB, the Appellant sought a one-year delay in the eviction (which the LTB was not prepared to grant). As a result of the proceedings in this court, the Appellant has effectively obtained far more than she was seeking below. This said, I would give the Appellant until August 2, 2025 to vacate the premises. I would also make it clear that this order to vacate, and permitting eviction in default, would not be stayed by bringing a motion for leave to appeal to the Court of Appeal: the Appellant would have to obtain a stay order from the Court of Appeal if she was to seek further delay in effecting the LTB’s decision.

[59] Any disagreement about the form of this court’s order should be referred to this panel to be settled, promptly, rather than the process of settling orders before the Registrar prescribed by the Rules of Civil Procedure.

“D.L. Corbett J.”

S. Nakatsuru J. (Dissenting)

A. OVERVIEW

[60] Jennifer Ricketts lives with her elderly mother in a three-bedroom townhouse that she rents from her landlords, Sureshkumar Veerisingnam and Komathini Sureshkumar (“the landlords”). Ms. Ricketts is on a fixed income and suffers from ongoing physical and psychological conditions resulting from a car accident. The landlords live with their children and the children’s grandmother, Thirumangalam Nadanacshanmugam (“the grandmother”). The grandmother is in her eighties, not in good health and desirous of a quieter place to live. The landlords gave Ms. Ricketts notice to end her tenancy so that Ms. Nadanacshanmugam could live in the townhouse. In response, Ms. Ricketts has taken the position that the landlords have sought her removal in bad faith. She argues that Ms. Nadanacshanmugam’s intent to move is not genuine.

[61] Ms. Ricketts has fought her eviction before the Landlord and Tenant Board (LTB) without any success. Ms. Ricketts now seeks to both appeal and judicially review the LTB members’ decisions. She has raised several grounds of appeal and review. None have merit other than the ground of appeal based on the ineffective assistance of her paralegal at her LTB hearing. Only this ground requires examination.

[62] For the following reasons, I would allow the appeal.

B. FACTUAL AND PROCEDURAL BACKGROUND

[63] Under s. 48(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”), a landlord may serve the tenant with a notice of termination if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by the landlord, the landlord’s spouse, a child or parent of the landlord or landlord’s spouse, or a person who will provide care services to those individuals. The landlords served Ms. Ricketts with such a notice.

[64] The LTB heard the application to terminate the lease for this reason.[^1] The hearing spanned two days: September 25 and October 27, 2023. Following the hearing, the LTB issued its order dated January 3, 2024. Member Begg found that the landlords in good faith required possession of the rental unit for the purpose of the grandmother’s residential occupation for a period of at least one year. Also, the LTB member considered relief from eviction under s. 83 of the RTA. After considering the circumstances of both the tenant and the landlords, the existing medical conditions of the parties, the seniors who would be impacted by the application, and the tenant’s request to postpone the eviction for 12 months from the date of the hearing, the LTB member found that it would not be unfair to postpone the eviction beyond the standard 11-day termination. He granted an extension of 55 days.

[65] A request to review this decision was denied on January 25, 2024. The member found that the original decision did not contain any reviewable error.

[66] At the initial September 25, 2023 hearing, Ms. Ricketts was self-represented. She expressly raised the issue that the eviction was being brought in bad faith by the landlords. The grandmother and one of the landlords, Ms. Sureshkumar, were witnesses on this first day. The two witnesses were briefly questioned by Ms. Ricketts with help from the member as she was unfamiliar with the questioning process. Near the end of Ms. Sureshkumar’s cross-examination, the member explained that if Ms. Ricketts was going to present evidence that supported her claim that the eviction was not in good faith, the rules required her to put that evidence to the landlord.[^2] During this exchange, it became apparent that a number of documents that Ms. Ricketts had believed she had uploaded to the LTB portal, were not in the possession of the member or the respondent’s paralegal representative. Along with the shortage of time, for this reason, the hearing was adjourned to continue on another date.

[67] On the return date for the hearing, October 27, 2023, Ms. Ricketts appeared represented by a paralegal. At the opening of the hearing, the paralegal and the member had the following exchange:

MR. AHMED: Okay, so it's, it is my client's position at this time after having a discussion with her that she does not want to refute the application any longer.

BOARD MEMBER: Okay.

MR. AHMED: But she wants to give submissions as to why she requires 12 months from November of 2023 to vacate the rental premises.

BOARD MEMBER: Okay.

MR. AHMED: This will be a final order.

BOARD MEMBER: Okay, so what I'm hearing from you, Mr. Nasser, is we are not contesting the landlord's L2 application. We're not contesting the intention of the landlord. What the tenant is looking for is section 83 relief from eviction. [^3]

MR. AHMED: That's correct, that's correct.

BOARD MEMBER: Okay, and that's fine. So, I can hold a hearing on section 83 alone.

MR. AHMED: Perfect.

[68] As a result, the hearing continued only on the s. 83 issue. Ms. Ricketts and Ms. Sureshkumar gave evidence on this. Immediately after Ms. Sureshkumar finished her testimony, without entertaining any submissions, the member reserved his decision.

C. THE ADMISSION OF FRESH EVIDENCE

[69] A motion to admit fresh evidence was brought before the full panel: See s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43; r. 61.16(2) of the Rules of Civil Procedure, R.R.O., 1990, Reg. 194; Hirtle v. College of Nurses of Ontario, 2021 ONSC 5689 at para. 2.

[70] The landlords did not raise any objection to the admission of the fresh evidence. As normally is the case when ineffective assistance of counsel is raised as a ground of appeal, the fresh evidence motion is granted in the interests of justice: R. v. Chica, 2016 ONCA 252, 348 O.A.C. 12 at para. 5; 1117387 Ontario Inc. v. National Trust Company, 2010 ONCA 340, 52 C.E.L.R. (3d) 163 at para. 41.

[71] No other affidavit or evidence was presented. Ms. Ricketts’ former paralegal was served with Ms. Ricketts’ motion record to introduce fresh evidence on June 21, 2024. There has been no response.[^4] Further, Ms. Ricketts’s evidence was untested by any cross-examination on her affidavit.

[72] In her affidavit, Ms. Ricketts says the following.

[73] In December 2022, Ms. Ricketts suffered a concussion from a car accident leading to serious physical, psychological, and cognitive impairment. She continues to receive medical treatment for these disabilities. Two medical letters in support were attached to her affidavit.

[74] Despite suffering from these ailments, she represented herself at the September 25, 2023 hearing. At the end of that day’s hearing, the member advised her to email any evidence she had that supported her claim that the eviction was in bad faith. She did so that very day. She included written submissions outlining her past difficulties with the landlords such as incidents where they responded negatively to some of her requests for repairs.

[75] After the hearing was adjourned, feeling overwhelmed, Ms. Ricketts hired a paralegal on October 5, 2023 to represent her at the hearing that was scheduled to continue on October 20, 2023. She advised the paralegal that hers was a bad faith eviction, provided him with her evidence in support, and instructed him accordingly. Emails between Ms. Ricketts and the paralegal were attached to the affidavit.

[76] On October 19, 2023, Ms. Ricketts received a phone call from the LTB rescheduling the hearing to October 27, 2023. She told her paralegal of the new date. The paralegal sent Ms. Ricketts a final copy of a document titled “Hearing Preparation” that the paralegal was going to use at the hearing. The document contained a series of questions that were to be asked of witnesses and the bad faith arguments to be argued before the LTB.

[77] On the morning of October 27, 2023, Ms. Ricketts telephoned her paralegal to have him make a request for Ms. Nadanacshanmugam to return to the witness stand to testify. The paralegal told her that the LTB would not drag the witness back to testify because of her age. As a result, only Ms. Sureshkumar testified on behalf of the landlords at the October 27 virtual hearing. In the midst of Ms. Sureshkumar’s evidence, Ms. Ricketts texted the paralegal to remind him that the reason given for Ms. Nadanacshanmugam moving into her home was false and that the elderly woman couldn’t use a three-bedroom house. Ms. Ricketts also texted her paralegal to correct the member’s erroneous impression, expressed at the hearing, that the rental residence was a basement unit and not a house. Her paralegal advised her that it didn’t matter. The texts were attached to her affidavit.

[78] At the October 27 hearing, Ms. Ricketts was aware that the member never asked about the bad faith of the landlord. She also was aware that her paralegal did not mention it, but she believed that the evidence she emailed to the member on September 25 and the “Hearing Preparation” document would be considered at some point.

[79] When she received the eviction order several months later, she was shocked that nothing was said about the bad faith or her evidence. She had told her paralegal that this was a bad faith eviction many times in October and had told him to tell the LTB member about this.

[80] Ms. Ricketts has sworn that she didn’t really know what to do after receiving the decision. Because she was desperate, she hired the paralegal again to file a request for review at the LTB. On January 22, 2024, Ms. Ricketts sent him an email with some ideas for the review, including how the landlords’ mother was not moving in, the bad faith of the landlords, and the seriousness of Ms. Ricketts’ medical disabilities and her mother’s own health condition. The paralegal wrote back saying that he had changed what she had written as they were not refuting the N12/L2 application, just the time for her to vacate under s. 83 relief from eviction. The paralegal never explained to Ms. Ricketts what these things meant. [^5]

[81] To this day, Ms. Ricketts maintains that this was a bad faith eviction. And the LTB never had that argument to consider.

D. THE STANDARD OF REVIEW

[82] An appeal under s. 210 of the RTA is limited to questions of law.

[83] The standard of review on questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8. The standard of review on questions of procedural fairness in the context of a statutory appeal is also correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 27, 30.

[84] In the circumstances of this case, the issue of ineffective assistance of counsel raises the question of whether the appellant’s hearing was procedurally fair. Thus, the standard of review is correctness.

E. ANALYSIS

(a) The ground of appeal of ineffective assistance of counsel in the residential tenancy context

[85] A healthy body of jurisprudence on ineffective assistance of counsel has developed in criminal appeals: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. Archer (2005), 2005 36444 (ON CA), 34 C.R. (6th) 271, 202 C.C.C. (3d) 60 (Ont. C.A.). In the criminal context, no one can doubt the importance of the interests at stake, which include liberty and security of the person. Similarly, no one can doubt the importance of the vigilance required to uphold the fairness and the integrity of the criminal justice process. This mandates appellate review on the grounds of incompetence of counsel.

[86] The same cannot be said for civil proceedings.

[87] An appellant arguing that a civil appeal should be allowed because of ineffective assistance of counsel will succeed only in rare or extraordinary circumstances. This is mainly because the lawyer’s competence is really an issue between the lawyer and the appellant. It does not involve the respondent at all. Allowing the appeal because of the conduct of the appellant’s counsel effectively penalizes the respondent for something with which they were not involved. Moreover, the appellant has other suitable remedies it can obtain in civil cases, the foremost being a civil claim against their lawyer: D.W. v. White, (2004) 2004 22543 (ON CA), 189 O.A.C. 256, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 486 at para. 51; Nguyen v. 110891 B.C. Ltd., 2024 BCCA 48 at paras. 34-36.

[88] But not all civil proceedings are the same. Some involve a classic dispute between private parties about money, adjudicated before an impartial arbiter like a judge. But other civil proceedings may be about more than strictly money; they may engage potential liberty and security of the person interests. Or the proceedings may involve broader public dimensions, possibly adjudicated by an administrative tribunal tasked by its enabling statute to consider public policy. In other words, in civil cases counsel’s competence must be assessed on a spectrum. What constitutes extraordinary circumstances should be determined in light of the differing contexts.

[89] The jurisprudence to date reflects this. In strictly private law disputes, ineffective assistance of counsel has not been successfully raised as a ground of appeal for, largely, the reasons given above: D.W. v. White, at paras. 53-54; Caledon (Town) v. Darzi Holdings Ltd., 2022 ONCA 455 at para. 47; OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520 at para. 44, application for leave to appeal dismissed, [2021] S.C.C.A. No. 328; Mediatube Corp. v. Bell Canada, 2018 FCA 127 at paras. 36-44; Smith v. Brockton (Municipality), 2021 ONSC 7607 at paras. 69-71; Dominion Readers' Service Ltd. v. Brant (1982), 1982 1771 (ON CA), 41 O.R. (2d) 1 (C.A.), at p. 9.

[90] However, a greater openness exists when this ground is raised in a civil proceeding involving the interests of young children: C.B. v. B.M., 2021 ABCA 266 at para. 97; C.C. v. Nova Scotia (Minister of Community Services), 2015 NSCA 67, 363 N.S.R. (2d) 94 at para. 28; Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, [2018] 4 C.N.L.R. 31 at paras. 95-96, application for leave to appeal dismissed, [2018] S.C.C.A. No. 51; Children's Aid Society of Peel Region v. M.H., 2018 ONSC 1589 at para. 73, aff’d 2018 ONCA 619.

[91] The greatest willingness to consider a challenge based on ineffective assistance of counsel appears to be in the regulatory context where, like criminal prosecutions, the individual is, more or less, pitted against the state or state-like institutions: Gligorevic v. McMaster, 2012 ONCA 115, 109 O.R. (3d) 321 at paras. 52-88; Veerasingam v. Ontario (Licence Appeal Tribunal), 2025 ONSC 290 (Ont. Div. Ct.) at paras. 27-28; Deokaran v. Law Society of Ontario, 2023 ONSC 1702 (Ont. Div. Ct.) at paras. 27-30; Savic v. College of Physicians and Surgeons, 2022 ONSC 303 (Ont. Div. Ct.) at para. 65; Teganya v. Canada (Minister of Citizenship and Immigration), 2011 FC 336, 386 F.T.R. 160.

[92] To sum up, ineffective assistance of counsel has been entertained in the civil context but is rarely successful. Where a case merely involves economic loss and does not involve vulnerable people or a broader public interest, courts prefer to direct unhappy clients to bring actions against their former lawyers. However, caselaw has emerged in the regulatory, immigration, and child protection contexts demonstrating that courts are more willing to consider claims for ineffective assistance of counsel in those areas because of the interests engaged.

[93] In my opinion, there are two reasons why extraordinary circumstances exist in this case. They are similar in nature and interrelated on the facts: (1) Ms. Ricketts is a vulnerable person as she suffers from a mental disability; and (2) Ms. Ricketts faces the serious consequence of eviction within the context of the regulation of residential tenancies. Both factors are indispensable in permitting this ground to be raised.

[94] First, mental disability has been recognized to be an extraordinary circumstance. In D.W. v. White, Catzman J.A. stated at para. 55:

... I would not be prepared to close the door to the viability of ineffective assistance of counsel as a ground for a new trial in a civil action. But... I would limit the availability of that ground of appeal to the rarest of cases, such as (and these are by way of example only) cases involving some overriding public interest or cases engaging the interests of vulnerable persons like children or persons under mental disability or cases in which one party to the litigation is somehow complicit in the failure of counsel opposite to attain a reasonable standard of representation. [Emphasis added.]

[95] Similar comments following D.W. v. White were made by the Federal Court of Appeal in Mediatube Corp. v. Bell Canada at para. 43, adding a very practical rationale:

A special interest may be present where the wronged clients are vulnerable persons--such as children or persons under mental disability--who have a unique and profound interest in the outcome of litigation that is qualitatively different from a financial interest, and their interests were appallingly treated by their lawyer: D.W. at para. 55. In such cases, the ground of ineffective assistance of counsel may be the only remedy available to them. They are not likely to have the ability, gumption and wherewithal to pursue other recourses, such as suing their negligent lawyer. [Emphasis added.]

[96] Ms. Ricketts is such a vulnerable person. Additionally, as my analysis will show, this vulnerability played a role in her being denied the effective assistance of her paralegal.

[97] Second, the residential tenancy context engages the public interest. This is a significant factor which weighs in favour of recognizing this ground of appeal. Courts have long recognized the RTA to be remedial legislation with a tenant protection purpose: Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, 431 D.L.R. (4th) 1 at para. 19; Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468, 102 O.R. (3d) 590 at paras. 23 and 32, application for leave to appeal dismissed, [2010] S.C.C.A. No. 369; Price v. Turnbull’s Grove Inc., 2007 ONCA 408, at para. 26. The centerpiece of that protection is the prevention of unlawful evictions: Elkins v. Van Wissen, 2023 ONCA 789, 168 O.R. (3d) 756 at para. 42; Salih v. Lacroix, 2024 ONSC 730 (Ont. Div. Ct.), at para. 9.

[98] The legislative mandate is premised on the inherent systemic vulnerability of the tenant in the landlord-tenant relationship. In Smith v. Youthlink Youth Services, 2022 ONCA 313, 469 D.L.R. (4th) 673 at para. 25, the RTA was described as:

… remedial legislation designed to redress the imbalance of power between landlords and tenants. It removes leases from the ordinary contract law principles that would otherwise govern and establishes extensive statutory rights for tenants.

See also White v. Upper Thames River Conservation Authority, 2022 ONCA 146, 161 O.R. (3d) 13 at para. 10.

[99] Thus, while an LTB hearing does not, strictly speaking, arise in a regulatory context, the statutory scheme focuses on security of tenure for tenants. Tenants can be removed by the landlord only in circumstances set out in the legislation, on notice, after a hearing, and upon an order obtained from the LTB. So, although the legal dispute could be characterized as one between two private parties – a landlord and a tenant – the reality is that this dispute is structured and resolved in a highly regulated legal framework with significant state involvement.

[100] Additionally, this appeal involves a serious consequence for the appellant. Eviction.

[101] The courts have long recognized this:

“[L]osing one's home is a very serious matter for anyone" as a home is "one of the essentials of daily living": Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 (Ont. Div. Ct.) at paras. 38 and 43.

“To remove a person from the residency he occupies is a serious experience and should not be taken lightly”: Sutherland v. Lamontagne, [2008] O.J. No. 5763 (Div. Ct.) at para. 14.

“Short of losing one’s liberty, the loss of one’s home is as serious a matter as can be imagined”: Britannia Glen Co-operative Homes v. Singh (December 2, 1996), Brampton, A4279/96 (Ont. Gen. Div.), as cited in Jack Fleming, Residential Tenancies in Ontario, 4th ed. (LexisNexis Canada Inc., 2022) at § 1.04 Statutory Interpretation, footnote 1.

[102] Moreover, through a rights-informed lens, an eviction proceeding raises significant life and security of the person interests. Although a right to housing under the Canadian Charter of Rights and Freedoms has not been explicitly acknowledged (perhaps unsurprising given the reluctance to affirm positive Charter rights), I note that authorities dealing with homeless encampments, regardless of the outcome or specific analysis undertaken by the court, have universally recognized the basic and fundamental nature of shelter: The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670, 164 O.R. (3d) 177 at paras. 82 and 96; Kingston (City) v. Doe, 2023 ONSC 6662, 541 C.R.R. (2d) 255 at para. 67; Black et al. v. City of Toronto, 2020 ONSC 6398, 152 O.R. (3d) 529 at paras. 5-7; Heegsma v. Hamilton (City), 2024 ONSC 7154 at para. 13; Poff v. City of Hamilton, 2021 ONSC 7224, 498 C.R.R. (2d) 83; Victoria (City) v. Adams, 2008 BCSC 1363, 88 B.C.L.R. (4th) 116 at para. 145 aff’d 2009 BCCA 563, 100 B.C.L.R. (4th) 28 at para. 4[^6][^7].

[103] Considering human rights interests aligns with the approach taken by the Ontario Court of Appeal in Gligorevic v. McMaster. Mr. Gligorevic applied to the Consent and Capacity Board to review a finding that he was mentally incapable. At the hearing, he sought an adjournment until his lawyer, who spoke his native language of Serbian, would be available. The Board adjourned the hearing for a shorter time than Mr. Gligorevic requested and directed a lawyer from the Public Guardian and Trustee (the “PGT”) to represent the client. Mr. Gligorevic told the PGT lawyer that he did not need or want her services, since he had his own lawyer. At the hearing, Mr. Gligorevic’s lawyer did not attend, but the PGT lawyer went ahead and represented him. The PGT lawyer did not explain to the Board that Mr. Gligorevic had declined her services and had provided no instructions about the hearing. The Board confirmed the incapacity finding. Mr. Gligorevic appealed to the Superior Court of Justice, arguing ineffective assistance of counsel, and then appealed further to the Ontario Court of Appeal.

[104] This was the first time that ineffective assistance of counsel had been advanced as a ground of appeal in the mental health law domain. Nonetheless, the mental health context – where medical treatment decisions were at issue – engaged the same observations about trial fairness and justice as in criminal law. The court emphasized the s. 7 of the Charter guarantee of the right to life, liberty and security of the person and the common law as support for those conclusions. Further, the context involved a health practitioner asserting incapacity before the Board on the requisite civil standard of proof by means of strong and unequivocal evidence. Where the patient contested the physician's finding of incapacity before the Board, the resulting capacity review hearing was seen as an adversarial, adjudicative proceeding where fundamental human rights were engaged. Seen in this context, the effective assistance of counsel at a Board capacity hearing was no less important than at a criminal trial.[^8]

[105] Eviction may not be the same as a finding of incapacity in terms of the impact on the subject’s freedoms. Nonetheless, Gligorevic supports my view that in the right case, ineffective assistance of counsel before the LTB should be permitted to be raised as a ground of appeal in this court.

[106] For all of the above reasons, I would find this is such a case.

(b) The legal test for ineffective assistance of counsel

[107] To begin, it is legally irrelevant that Ms. Ricketts retained a paralegal rather than a lawyer. Paralegals who enter contracts with clients must provide services to those clients in accordance with the appropriate standard of care: Law Society of Ontario, Paralegal Rules of Conduct (Toronto: Law Society of Ontario, 2022) r. 3.01(4). A paralegal, as a legal service provider, has a duty to provide competent advice and representation: Elliot v. Chiarelli (c.o.b. Total Property Management) (2006), 2006 34426 (ON SC), 83 O.R. (3d) 226 (S.C.) at para. 29.

[108] Turning to the test to be applied, Ms. Ricketts relies on authorities decided in immigration and refugee matters by the Federal Court of Canada.[^9] However, when it comes to the claims of ineffective assistance of counsel before administrative tribunals, Ontario has adopted the test used in criminal cases. As set out in Deokaran v. Law Society of Ontario, at para. 27, citing G.D.B., at para. 26, and Gligorevic, at para. 66, three components or preconditions are required to establish a claim of ineffective assistance by counsel:

1. The underlying facts on which the claim of incompetence is based must be established on a balance of probabilities (the factual component).

2. Incompetent representation must be established (the performance component).

3. The incompetent representation caused a miscarriage of justice (the prejudice component).

See also Veerasingam v. Ontario (Licence Appeal Tribunal) at para. 23.

[109] In criminal appeals, the third component is considered first since if the appellant fails to establish that the ineffectiveness resulted in a miscarriage of justice, by undermining either the appearance of a fair trial or the reliability of the verdict, it is unnecessary to undertake the other parts of the analysis: R. v. J.B., 2011 ONCA 404 at para. 2. I propose to do the same here.

(i) The prejudice component

[110] Ms. Ricketts submits that she was not heard by the LTB on the central issue of the alleged good faith of the landlords to have a family member occupy the rental premises because her legal representative failed to follow her express instructions. Instead of contesting the eviction, the paralegal agreed to it at the beginning of the second hearing date. Consequently, the order must be overturned as it was the product of an unfair process and amounted to a miscarriage of justice.

[111] The landlords submit that even if the evidence of any bad faith motivation to serve the N12 notice was adduced during the hearing, there was no reasonable probability of this evidence altering the result. Thus, no breach of natural justice occurred when the paralegal did not challenge the good-faith intentions of the landlords.

[112] Before addressing the merits of these submissions, an issue arises from the fact that Ms. Ricketts did not raise her objection regarding the conduct of her paralegal in her Rule 26[^10] review of Member Begg’s original decision. The LTB has the discretion to review a final order where the order contains a serious error or a party was not reasonably able to participate in the proceeding. In the review decision, the LTB considers the public interest in preserving the finality of its decisions together with the opportunity to correct a serious error without the need to appeal or seek judicial review.[^11]

[113] In my opinion, it really goes without saying that if a party becomes aware that their counsel or legal representative was not following their instructions on a fundamental matter, then they must raise it on the review under Rule 26. Failure to do so would likely preclude the party from making this argument on appeal or judicial review to the Divisional Court.

[114] On the case-specific facts here, however, it is not an insurmountable obstacle.

[115] First, Ms. Ricketts did raise the concern with her paralegal in her email exchange with him before the review process was engaged. After receiving the original eviction decision, on January 22, 2024, Ms. Ricketts advised her paralegal that amongst the things she wanted to raise in the review was that the landlords’ “claim of needing the residence for one year is meritless and only serves to be in compliance to the guidelines of the Board… [t]heir intention is rooted in Bad Faith based on all the evidence including their refusal to maintain the property which [she] has had to do out of pocket.” Ms. Ricketts asked again for Ms. Nadanacshanmugam to be questioned if a rehearing was granted. In his reply to her, the paralegal advised that he edited a lot of what Ms. Ricketts had put in the request for a review form due to its irrelevance as they were “not refuting the N12/L2 application.” Ms. Ricketts thanked her paralegal, stating that she had no idea how the system worked and to pardon her ignorance when she made a statement that made no sense because since the accident, she continued to suffer from “cognitive and comprehension issues majorly.”

[116] Second, Ms. Ricketts was an unsophisticated litigant who, based on the transcript of the September 25, 2023 hearing, was clearly out of her depth in representing herself. As an example, she posed only a handful of questions to the witnesses and was only able to formulate her concerns into a question with the help of the member. The paralegal’s reference to the N12/L2 application was obscure and the ramifications of not “refuting” it could very well not have been apparent to her. And Ms. Ricketts has given sworn evidence to that effect in her affidavit.

[117] Third, Ms. Ricketts was suffering from medically verified mental and psychological disabilities arising from a car accident in December of 2022, including psychological and cognitive impairment with symptoms of difficulty concentrating and “brain fog” when in stressful situations. On October 16, 2023, her physician confirmed that since her serious car accident, “she has been very disabled with multiple musculoskeletal and psychological issues, and [was] undergoing further assessment and treatment.” Later, that same physician further stated that the disabilities were continuing as of January 2024.

[118] Fourth, Ms. Ricketts was justifiably of the belief that her evidence had been sent to the LTB on September 25, 2023. She believed that her position, as found in the “Hearing Preparation” document, was before the LTB. The fact that her paralegal did not wish to address her bad faith allegations in the review submission would not necessarily indicate to her that her prior submissions and evidence would not be considered on the review. The paralegal did not explain to her in the communications they had before the review that it would not.

[119] Based on these factors, it is objectively reasonable that Ms. Ricketts may have not fully appreciated what she was giving up by not inquiring, insisting more forcefully, or ultimately discharging her paralegal during the review process when he did not appear to be acting in accordance with her instructions. From Ms. Ricketts’ perspective, her paralegal, someone she had privately retained, who knew her case, and whom she trusted at the time, was a lifeline in this landlord-tenant dispute, especially given the brief 30-day period that she had to make submissions on the review. I find it understandable and reasonable that in these circumstances, she would have been reluctant to let go of that lifeline.

[120] Turning now to the prejudice component. The focus in assessing a claim of ineffective assistance of counsel is whether a miscarriage of justice has occurred, not a “grading” of counsel’s performance: G.D.B. at paras. 28-29. A miscarriage of justice can take the form of undermining the appearance of the fairness of the proceeding or the reliability of the decision: Archer at para. 120.

[121] In my opinion, both forms of a miscarriage of justice occurred in this case.

[122] Even if the landlords’ submissions were to be accepted, a reliable decision may still be a product of a miscarriage of justice if the process to that decision was unfair: R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35, 44 C.R. (4th) 364 (Ont. C.A.) at para. 74 application for leave to appeal dismissed, [1996] S.C.C.A. No. 347; Gligorevic at para. 88. In this case, Ms. Ricketts was denied a fair hearing when, contrary to her instructions, her legal representative conceded an important substantive issue. She was denied any opportunity to lead evidence or make representations about this issue. An issue that she had strongly contested at her original September 25 hearing. Indeed, at that hearing, she had not even finished questioning Ms. Sureshkumar about bad faith. As well, even apart from the wrong concession made by the paralegal, the way the October 27 hearing was conducted did not permit Ms. Ricketts to contest any aspect of the landlords’ good faith intentions. For instance, when she began giving evidence about the unrectified mice problem she had complained about in the past, she was stopped by the member and told this was irrelevant.[^12] And as I pointed out earlier, no submissions were made on the issue of good faith or bad faith.

[123] Stated frankly, despite the paralegal’s physical presence, effectively, Ms. Ricketts had no one representing her at the LTB hearing on the key issue regarding her ongoing tenancy.

[124] Reference again to Gligorevic at paras. 88-107 is helpful. There, counsel for the PGT participated on the patient’s behalf at the hearing though she had no instructions from him to do so. Despite there being a sound evidentiary foundation for the Board’s decision, a new hearing was ordered because counsel was not authorized to act on his behalf. In these circumstances, a miscarriage of justice happened because the process of the hearing was unfair. Likewise, in the case at bar, the paralegal conceded the s. 48(1) issue without any authorization to do so. This too rendered the hearing unfair.

[125] In addition, the miscarriage of justice undermines the reliability of the decision. In this category of an ineffective assistance of counsel claim, it must be shown that specific decisions, actions, or omissions of counsel were so deficient that the effect of counsel’s conduct was such that, had they performed it in a competent fashion, there was a reasonable probability the outcome would be different: Archer, at para. 120; Joanisse, at paras. 80-81.

[126] Ms. Ricketts had proposed to lead evidence of a prior attempt to evict her in March of 2022 when the landlords asked her to vacate because their family were all going to move into the townhouse. When Ms. Ricketts challenged that explanation, their rationale shifted inconsistently to it being necessary for renovation purposes. Ms. Ricketts did not sign the document that the landlords provided to her at the time, and they refused to give her a copy. Additionally, Ms. Ricketts wished to lead evidence of past difficulties with the landlords’ refusal and delays in performing repair and maintenance obligations and dealing with rodent infestations. Things she ultimately had to do herself. She had confirmatory receipts to support her testimony. As a result, the landlord/tenant relationship deteriorated including the use of indecent and vulgar language directed against her by the landlords. They told her that she could move out if she had an issue with the performance of their responsibilities. Ms. Ricketts also points to the fact that the landlords falsely portrayed her as a problematic tenant in LTB documents.

[127] The respondents submit that these statements and conduct by the landlords are ambiguous and would not have mattered to the outcome. However, this argument must be seen in context. The member, in adjourning the September 25 hearing, himself advised Ms. Ricketts that if she had evidence such as the failure to make proper repairs, something that could support a bad faith intention to evict, she should bring that evidence on the next occasion. Ms. Ricketts did. She forwarded it on the same day and was prepared to testify to the same. As well, Ms. Ricketts was prepared to make logical and tenable arguments about the implausibility of moving the elderly grandmother with health problems into a three-bedroom townhouse, to live there alone for the rest of her life according to Ms. Nadanacshanmugam’s own testimony, though she had lived in the family home for a decade.

[128] I find that this second form of a miscarriage of justice has been established. To be clear, this is not to say that the landlords do not have a genuine case for eviction or that the outcome at any rehearing will be in the appellant’s favour. Rather, it just means that with a competent legal representative, properly acting in accordance with instructions, there is a reasonable probability that the outcome would have been different.

[129] I move on to the other components of the test.

(ii) The factual component

[130] I am satisfied that Ms. Ricketts has established on the balance of probabilities that her paralegal, without proper instructions, failed to contest the s. 48(1) termination and improperly limited her hearing to only a consideration of s. 83 of the RTA.

[131] First, Ms. Ricketts’ statements in her affidavit were unchallenged. The failure to cross-examine on the affidavit does not automatically lead to the acceptance of what Ms. Ricketts swears happened in her interactions with her paralegal. However, in the absence of any probing or testing, the internal coherence and weight of her evidence remains intact. I appreciate that her evidence that she did not instruct or realize that her paralegal abandoned any arguments about the bad faith intention of the landlords seems to fly in the face of the fact that she was present during the October 27, 2023 hearing. However, Ms. Ricketts is a legally unsophisticated woman who was suffering from several physical and mental disabilities. Moreover, the reference to the disavowal of the s. 48(1) challenge was quite brief, made only at the beginning of the hearing. Ms. Ricketts did not say anything then or later to adopt that position of her paralegal. And no arguments were raised about it at the end of the hearing that could have provided her with a more in-depth awareness of what issues were to be adjudicated. It is plausible in these circumstances to accept that, at the time, Ms. Ricketts was not fully aware of the consequences of her paralegal’s actions. It is plausible that Ms. Ricketts believed that her testimony was only being led to obtain a year’s delay in eviction in the event that her primary position (that the termination was in bad faith) was not accepted by the member.

[132] Second, the prior communications between Ms. Ricketts and her paralegal, as well as with the LTB, confirm that she has consistently and emphatically alleged bad faith on the part of the landlords in trying to evict her from her rental unit. In these communications, she has detailed the history, as noted above, of her complaints and the inconsistent explanations of the landlords. Her position is also clearly set out in the document “Hearing Preparation.” These communications with the paralegal, right up until the October 27, 2023 hearing, confirm the evidence in her affidavit that she wanted the issue of the bad faith of the landlords to be adjudicated.

[133] Third, I recognize the possibility that Ms. Ricketts could have changed her mind and, on the morning of the virtual hearing, have given different instructions to her paralegal. However, I do not accept that that is what happened. Ms. Ricketts swears to the contrary. Moreover, contemporaneous texts sent by Ms. Ricketts to her paralegal, as the hearing was going on, support her contention that she believed that the invalid eviction on the grounds of bad faith remained very much a live issue. As Ms. Sureshkumar was testifying at the hearing that the grandmother needed the townhouse to live in, Ms. Ricketts texted her paralegal in real time that this reason was “made up” and rhetorically asked who was going to care for the grandmother after she had lived with the family for ten years. In addition, Ms. Ricketts texted her paralegal that the grandmother did not need a three-bedroom place for herself, a dwelling that had stairs. Rather, Ms. Ricketts texted, she needed care and could not be on her own. All these were comments supporting a belief that bad faith was an issue to be adjudicated. Finally, if some confirmation was required that Ms. Ricketts’ medical condition was operating upon her at the time of the hearing, she texted her paralegal at the beginning “it is nerve racking especially after suffering a concussions (sic). Really need your support. Thanks.”

[134] Fourth, after receiving the eviction decision in January 2024, as I have already reviewed above, Ms. Ricketts set out her position to her paralegal that bad faith should be raised.

[135] In conclusion, when the fresh evidence is carefully assessed in the context of the entire record, Ms. Ricketts has established on the balance of probabilities the factual component of her claim of ineffective assistance of counsel. Regardless of what took place at the October 27 hearing, it remains more likely than not that Ms. Ricketts was confused about what her paralegal had done on that date, and that he acted contrary to her instructions and wishes. Considering her unchallenged affidavit, the absence of any contradictory fresh evidence, and the body of confirmatory evidence made close in time to the hearing and during the hearing itself, I find that the paralegal failed to follow Ms. Ricketts’ instructions to dispute the good faith intentions of the landlords under s. 48(1) of the RTA before the LTB.

(iii) The performance component

[136] Having found the facts, this leads to an examination of the performance component. With respect to the second requirement, incompetence is measured against a reasonableness standard having regard to the circumstances as they existed when the impugned acts or omissions occurred. The reasonableness analysis proceeds upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": G.D.B. at para. 27.

[137] Acting contrary to his client’s instructions, and conceding the ground for the termination of the tenancy in these circumstances, is unreasonable by any standard. This was not an error in judgment regarding a tactical decision made by a legal representative in light of shifting evidence led at a proceeding. Here, the paralegal, who was not even present for the evidence at the first hearing, conceded the issue without presenting any evidence or submissions supporting it. Even though he was aware of his client’s testimony and the documentary evidence she had collected.

[138] In the penultimate analysis on the performance component, the overarching consideration is that the paralegal conceded a pivotal legal and factual issue that could have avoided eviction, much to Ms. Ricketts’ detriment, without instructions. This falls measurably outside of the wide range of reasonable professional assistance.

[139] The presumption has been rebutted. Incompetent representation has been established.

F. DISPOSITION

[140] For these reasons, I would allow the appeal and I would set aside the order terminating Ms. Ricketts’ tenancy.

[141] I have considered whether I would send this matter back to the LTB for a Rule 26 review on the issue of whether ineffective assistance of counsel has been established. I would decline to do so.

[142] This case is not simply about a failure of advocacy skills or the presentation of evidence by a representative of a party. In those instances, the experience and expertise of the LTB may be of value in determining if the prejudice and the performance components have been established. The LTB is uniquely positioned to assess this given the high volume of cases it hears and its familiarity with its operative law, the spectrum of fact situations that are litigated, and the high variability of the capabilities of those who appear before it. In the case at bar, given the fundamental failure of the paralegal to take instructions, a referral back for such a review would only lead to unnecessary delay and expense where the outcome of that review would be inevitable.

[143] I would refer the matter back to the LTB for a rehearing on the merits. In fairness to the landlords, who are blameless, I would urge an expedited LTB hearing.

“S. Nakatsuru J.”

Released: June 19, 2025

CITATION: Ricketts v. Veerisingnam, 2025 ONSC 841

DIVISIONAL COURT FILE NO.: DC-24-1508 and DC-24-1653-00JR

DATE: 20250619

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D. Newton R.S.J., D.L. Corbett and S. Nakatsuru, JJ.

BETWEEN:

JENNIFER RICKETTS

Appellant/Applicant

• and -

SURESHKUMAR VEERISINGNAM, KOMATHINI SURESHKUMAR

Respondents

• and -

THE LANDLORD AND TENANT BOARD

Respondent

REASONS FOR DECISION

NAKATSURU, J.

Released: June 19, 2025

[^1]: Initially the landlords served Ms. Ricketts with three notices of termination: (1) an N4 Notice to End your Tenancy Early for Non-payment of Rent, (2) an N5 Notice of Termination to End your Tenancy for Interfering with Others, Damage or Overcrowding, and (3) an N12 Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit. Subsequent to the service of the three Notices, the respondents filed an L1 Application with the LTB to Evict a Tenant for Non-payment of rent and to Collect Rent the Tenant Owes and an L2 Application to Evict a Tenant or Collect Money. The LTB heard the landlords’ applications together over two days. At the hearing, the respondents withdrew the other claims and the matter proceeded on the basis of only the N12 Notice and L2 application. It is only the N12 notice and L2 application that are the subject of these proceedings.

[^2]: Stated by the member as the rule in Browne v. Dunn: see Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.) and ss. 20 and 21 of the Evidence Act, R.S.O. 1990, c. E.23.

[^3]: Section 83 of the RTA provides for a power whereby the LTB can, and in some cases must, refuse the eviction even though a landlord has proven their case in an application to evict a tenant. The LTB must review and consider the circumstances of both parties to determine whether or not the eviction should be refused or delayed. These powers are referred to as "relief from eviction".

[^4]: In the context of raising ineffective assistance of counsel as a ground of appeal, while this does not result in complete waiver of solicitor-client privilege, typically, an express or implicit waiver of solicitor-client privilege in relation to specific communications and materials relevant to that ground of appeal results: Caledon (Town) v. Darzi Holdings Ltd., 2022 ONCA 513 at paras. 8, 18-20; R. v. Getfield, 2018 ONSC 5617 at para. 47; D.M. v. Children’s Aid Society of Ottawa, 2021 ONSC 8360 at para. 32; R. v. C.M., 2023 ONCA 700 at paras. 8-10. Therefore, solicitor-client privilege would not have prevented a response/affidavit from the paralegal at the behest of the respondent. In any future case, a party can compel the subject counsel or a paralegal to provide evidence in responding to a ground of appeal alleging ineffective assistance of counsel. This can be overseen by a single judge of the Divisional Court at a Case Conference. Guidance on the management of this issue can be gained by reference to Section 17 of Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario and Rule 15 of the Criminal Appeal Rules.

[^5]: See footnote 1 for what N12 and L2 mean.

[^7]: In Adams, the British Columbia Court of Appeal also affirmed the trial judge’s reference to international instruments as an aid to interpreting the Charter, holding at para. 35 that “[t]he use of international instruments to aid in the interpretation of the meaning and scope of rights under the Charter, and in particular the rights protected under s. 7 and the principles of fundamental justice, is well-established in Canadian jurisprudence.” Specifically, the trial judge referred to international human rights instruments to which Canada is a signatory which recognize adequate housing as a fundamental right, including the Habitat Agenda, UN Doc. A/Conf. 165/14 (1996), the Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71, and the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46, 6 I.L.M. 360.

[^8]: Gligorevic v. McMaster, 2012 ONCA 115, 109 O.R. (3d) 321 at paras. 60-61.

[^9]: Shirwa v. Canada (Minister of Employment and Immigration), 1993 17477 (FC), [1994] 2 F.C. 51 at p. 60-66.

[^10]: The LTB may, pursuant to s. 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S22 (the “SPPA”) and Rule 26 of the LTB’s Rules of Procedure (the “LTB Rules”), review any order that finally determines a party’s rights. The LTB has the authority to make rules to govern its procedures under s. 176 of the RTA and s. 25.1 of the SPPA. The LTB Rules apply to all proceedings before the LTB.

[^11]: Interpretation Guideline 8 of the LTB regarding Rule 26.

[^12]: I observe here that such a line of questioning would have been relevant irrespective of the merits of the landlord’s application, since s. 83(3)(c) of the RTA requires the LTB to refuse the eviction where the reason behind the application is retaliatory because the tenant was attempting to enforce their rights.