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RTA - Duty Counsel. Steubing v. Drewlo Holdings Inc. [role of duty counsel]
In Steubing v. Drewlo Holdings Inc. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a tenant's RTA s.210 appeal, here from "a Motion to Set Aside Order ... [which] terminated the tenancy ..." and the subsequent dismissed LTB review.
This is an RTA s.78(11) non-payment case [See 'Enforceable-Order-to-Eviction "Catch-Up Payment" and Tenant's One-Time Motion to Set Aside Eviction Order' - http://www.isthatlegal.ca/index.php?name=termination_non-payment.tenant_law_ontario#Enforceable-Order-to-Eviction%20Catch-Up%20Payment%20and%20Tenant's%20One-Time%20Motion%20to%20Set%20Aside%20Eviction%20Order].
Here the court critically comments on the role of duty counsel at the LTB hearing:[30] .... I am satisfied that the Appellants received a reasonable opportunity to participate. Mr. Steubing was present at the hearing and consulted with Tenant Duty Counsel several days before the hearing date and immediately before proceeding with the hearing. He had a reasonable opportunity to present evidence, cross-examine the Respondent’s representative and provide closing submissions on why he believed the ex parte order should be set aside. He had already provided closing submissions when Tenant Duty Counsel requested an opportunity to make a comment in addition to those final remarks.
[31] If Duty Counsel had not observed the hearing after providing summary advice, Mr. Steubing would have closed his case upon the completion of his submissions. There would have been no basis to suggest that the submissions by him were incomplete or inadequate. After completing his own submissions, he did not notify the Hearing Member that Duty Counsel intended to supplement his own comments and there was no indication that he intended Duty Counsel to add any further submissions. At the outset of the hearing block, observers are routinely cautioned not to address the adjudicator, or they may be removed from the hearing. At the time that Tenant Duty Counsel attempted to comment on the proceedings, he had assumed the role of an observer and had no standing to offer submissions.
[32] The LTB’s Practice Direction on Representation before the Landlord and Tenant Board makes provision for a support person that distinguishes this role from representatives or witnesses as follows:Support Persons
A support person, such as a family member, friend or social worker, may attend a hearing or mediation with a party or witness to sit with and assist the person participating in the proceeding. Such a support person is not considered a representative, so long as they do not make submissions on the party's behalf. If a party wants their support person to testify at the hearing, they should inform the LTB at the beginning of the hearing. If a support person is testifying, they may be considered a witness and may be excluded from the hearing until they testify. [33] If Mr. Steubing had intended the Tenant Duty Counsel to provide submissions on his behalf at the hearing, procedural fairness required him to make this intention clear at the start of the hearing. Having elected to attend the hearing as a support person, to allow Duty Counsel to assume the role of representative only after the Respondent had provided closing submissions would unduly prejudice the Respondent. If Mr. Steubing had something to add, he could have asked for the matter to be held down and briefly consult with Duty Counsel before proceeding.
[34] As the Reviewing Member noted, Duty Counsel had no standing to intervene in the proceedings and the Hearing Member was correct to deny any comments made by this third party. Section 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) confirms that the LTB has the right to control its own proceedings and may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
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