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Representation - Paralegals and Lay Representatives - Administrative Tribunals [SPPA 23(3)]. Thomson v Sisters of St. Joseph
In Thomson v Sisters of St. Joseph (Div Ct, 2010) the Divisional Court considered an interesting struggle by a tenant and his unlicensed representatives (that is, he attempted to rely on legal representation from non-Law Society members - ie. people who were not licensed lawyers or paralegals). At the Board level, extended proceedings against the tenant for non-payment of rent were disputed by him under the (vindicated) argument that past Notices of Rent Increase were illegal and thus void, raising directly the issue of 'just what was the rent due anyway'.
The landlord sought by motion to remove the tenant's unlicensed representative under SPPA s.23(3). At the hearing of that motion the tenant attended with a new unauthorized representative, and the LL sought on the spot to amend their motion to exclude that representative, which the Board did. As a result of that the tenant asked for an adjournment to find new counsel, which was denied. The tenant then walked out of the hearing and, absent any contrary evidence, the LL's application to evict was granted.
The court held that the refusal to grant to adjournment was a denial of natural justice and granted the appeal, ordering a new hearing on all issues.
. Kilislian v. Peterborough Public Health
In Kilislian v. Peterborough Public Health (Div Ct, 2022) the Divisional Court considered, but denied, the removal for cause of an agent representing a party to an administrative proceeding under SPPA 23(3):[33] There is no issue that the panel had the jurisdiction to exclude Mr. Curnew under s. 23(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which provides as follows:A tribunal may exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser. [34] The appellants suggest that this section should be read as a mandatory obligation, but it is, on its face, discretionary. The appellants must show a breach of procedural fairness in the particular circumstances of this case.
[35] The appellants submit that despite the lack of an objection, the panel ought to have questioned Dr. Kilislian about her decision to have her husband represent her at the hearing. The appellants rely on a series of criminal cases that began when paralegals sought to represent parties before the courts. The appellants rely on R. v. Romanowicz (1999) 1999 CanLII 1315 (ON CA), 45 OR (3d) 506 (C.A.), R. v. Allahyar, 2017 ONCA 345, 138 O.R. (3d) 233 and R. v. Van Ravenswaay, 2021 ONCA 393, 407 C.C.C. (3d) 193.
[36] R. v. Romanowicz arose prior to the licensing of paralegals in Ontario. The court noted that several provincial statutes provided for representation by agents and recognized the tribunal's power to exclude agents, giving, for an example, s. 50 of the Provincial Offences Act, R.S.O 1990, c. P.33.
[37] In R. v. Romanowicz, the court held as follows, at paras. 41 and 42:We think that a trial judge faced with an accused who has chosen to be represented by an agent should ensure that the choice is an informed one. The trial judge should be satisfied that the accused is aware that the agent is not a lawyer and that the accused will not have recourse to various remedies which might be available to him if the agent were a lawyer and performed inadequately.
Where it appears that the accused is represented by a paid agent, the trial judge would do well to inform the accused that the laws of Ontario do not require that persons receive any training or demonstrate any level of expertise before being allowed to take money in return for representing persons in criminal matters. It is also advisable that the trial judge advise the accused that while the law expects certain minimum standards of competence from lawyers it imposes no such standards on those who are not lawyers. [38] The appellants note that in R. v. Romanowicz the court also referred to the SPPA section in relation to Codina v. Law Society of Upper Canada (1996), 93 O.A.C. 214 (Div. Ct.), where the appellant, Ms. Codina, wished to be represented before a discipline committee of the Law Society by Harry Kopyto, a recently disbarred lawyer. In that case, counsel to the Law Society objected to Mr. Kopyto filling that role. The appellants also rely on R. v. Allahyar, which provides at para. 17 that R. v. Romanowicz applies when a person seeks to be represented by a friend or family member, and on R. v. Van Ravenswaay, also a criminal matter.
[39] However, even in the criminal context, there is no obligation to inquire into the competence of the representative. As set out in R. v. Romanowicz, at paras. 45 and 48:…Judges cannot become regulators and restrict the appearance of agents on a case-by-case basis based on their personal assessment of the competence of each agent. …
In our opinion, it would be inconsistent with the right of accused persons to choose their mode of representation if courts were obligated to scrutinize those choices and veto them if it were concluded that the chosen representative was not up to the task. The emphasis must be on the accused’s right to choose and not on the merits of that choice. [Emphasis added.] ....
[45] Even in the criminal context, an accused who chooses to be represented by an agent who is not a lawyer “cannot be heard to contend that the agent’s performance should be tested against the standard reserved to counsel trained in the law”: R. v. Romanowicz, at para. 29; Savic v. The College of Physicians and Surgeons, 2022 ONSC 303 (Div. Ct.), at para. 66.
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