Legal Blog

UNAUTHORISED (2)

In October 2013, we discussed the case of Law Society of Upper Canada v. Chiarelli (2013), 115 O.R. (3d) 53 (S.C.J.) in which the Law Society of Upper Canada obtained an injunction against a property manager (the “PM”) for the unauthorised practise of law. The PM appealed and the Ontario Court of Appeal dealt with that appeal at 2014 ONCA 391.

Recap

A property manager (the “PM”) decided that, besides his normal duties of managing property, he should have the right to attend before the Landlord and Tenant Board (the “Board”) as a landlord’s personal representative. The PM was neither a lawyer nor a paralegal. The applications judge held that the PM was practising law contrary to the Law Society Act (the “LSUC Act”) and that the Residential Tenancies Act (the “RTA”) did not conflict with the LSUC Act.

The judge enjoined the PM from practising law. The PM appealed the decision.

Legislation

The LSUC Act provides that no one can provide legal services without being licensed as a lawyer or paralegal, with the exception that an individual acting on his or her own behalf shall be deemed not to be providing legal services.

The RTA defines a landlord as (i) an owner of a residential unit or any other person who permits occupancy of a rental unit or (ii) a person, other than a tenant, who is entitled to possession of the residential complex and attempts to enforce any of the rights of a landlord under a tenancy agreement.

The PM took the position that, when acting for other landlords, he was himself a landlord under the RTA definition and therefore was, in effect, acting for himself.

Minority

The Court of Appeal minority decision stated that the purpose of the RTA was to protect tenants. The RTA gave the Board the power to provide that a landlord, as defined, would have to pay rebates in rent or comply with other Board orders. If the PM were a landlord, then he would be a party to the proceedings and he ought to be allowed to appear before the Board in person. The minority would have allowed the PM to represent other landlords if he could demonstrate that he was a landlord as defined under the RTA.

Majority

The majority assumed for the purpose of their analysis that the PM could demonstrate that he was a landlord under the RTA, but concluded that this did not authorise the PM to provide legal services before the Board.

The majority noted that the RTA does not explicitly grant a landlord the right to self-represent; it is silent on that point. Rather, only the LSUC Act permits self-representation and it only allows self-representation when an individual is acting on his or her own behalf.

The majority stated that the PM was not attempting to act on his own behalf; he was attempting to act on behalf of his client landlords. While the PM may be able to demonstrate that he is a landlord for some purposes, “this does not change the fact that he is providing legal services to a third party.”

The majority held that the PM’s interpretation of the two statutes would result in a conflict (i.e. LSUC Act says do not represent and the RTA allows representation) whereas the Law Society’s interpretation (i.e. the RTA is silent and LSUC Act says do not represent) results in no conflict of the statutes; it merely requires self-representation to be subject to the provisions of the LSUC Act.

Injunction

Both the majority and the minority agreed that the terms of the injunction were too wide because they merely parroted the LSUC Act’s prohibitions against the unauthorised practise of law. The court held that an injunction has to be specific enough so that it can be enforced easily. Since the Law Society had complained only about the PM’s representation before the Board, the injunction should be limited to that complaint. Accordingly, the injunction was changed to prohibit the PM “from appearing before the Board on behalf of his clients or on behalf of himself, save for situations where he is an owner of a property subject to a proceeding before the Board.” This means that if the PM owns property through a corporation, he still has no right to appear before the Board.

Costs

The PM got away with a no costs order before the motions judge and tried it again before the Court of Appeal. The Court rejected the “novel issue” argument and awarded costs of $6,000 against the PM.

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.