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Review (Appeal-JR) - Grounds - Ineffective Assistance of Counsel (5). Royal LePage RCR Realty Brokerage v. Human Rights Tribunal of Ontario [admin/deemed by Rule]
In Royal LePage RCR Realty Brokerage v. Human Rights Tribunal of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court granted an application to 'quash' "a decision of the Human Rights Tribunal which dismissed a request for reconsideration of the decision of the Human Rights Tribunal" - here where the impugned decision was due to the "failure of the lawyer of record to respond to the correspondence from the Tribunal":[16] On November 7, 2024, Royal LePage filed a request for reconsideration of the Default Decision on the basis that it had no knowledge of its lawyers’ conduct that led to them losing their rights to receive notice of or participate in a hearing of the matter.
[17] On February 4, 2025, the Tribunal issued a decision refusing Royal LePage’s request for reconsideration. The Tribunal made reference to Rule 1.22(d) of the Tribunal’s Rules which provide that a respondent’s counsel is deemed to have received the Tribunal’s communications. The Tribunal stated that because Rule 1.22(d) is a deeming provision, it creates a legal fiction by declaring something to have happened regardless of the truth of the matter. It notes that “when “deems” is used to create a legal fiction, the fiction cannot be contradicted.” In their decision the Tribunal stated,Since Rule 1.22(d) is a deeming rule, the respondent cannot contradict that their authorized legal counsel received the Tribunal’s correspondence. As a result of this deemed result, the respondent does not meet the criteria in Rule 26.5(b) of the Tribunal’s Rules.
I understand that the respondent may take the position that they, the respondent themselves, did not receive the Tribunal’s notices of correspondence and, for that reason, the Tribunal should grant their request.
However, this argument fails. Rule 1.21.1 of the Tribunal’s Rules provides that when a party has a representative, documents must be delivered to the representative.
On August 17, 2018, the respondent’s counsel submitted a letter to the Tribunal confirming that they act for the respondent with respect to this matter. Also, they completed the section of the response (Form 2) for indicating the respondent’s counsel’s contact information. [18] The Tribunal held that the Respondent did not meet the high threshold of a “no fault of their own” qualifier which was necessary for the reconsideration because the Respondent checked the box in the application asking the Tribunal to send communications to their counsel. In its reconsideration decision the Tribunal stated,In the Tribunal’s view, the respondent bears some responsibility for the instruction to communicate with their counsel. The respondent should have carefully reviewed the Application and the Respondent’s Guide and been aware that communications would be sent to their counsel.
If the counsel changed, which was not claimed, the respondent would have been responsible for providing the Tribunal with updated contact information. For these reasons, it cannot be said that the respondent has no fault or no responsibility. [19] As a result of the failure of the lawyer of record to respond to the correspondence from the Tribunal, the request for reconsideration was refused on February 4, 2025 (“Reconsideration Decision”). Royal LePage seeks to judicially review the Reconsideration Decision and to set aside the Default Decision. For the following reasons I have concluded that the application should be granted.
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[21] In the Divisional Court decision of Ramirez v. Rockwell Automation Canada Ltd., 2025 ONSC 1408 (CanLII), the Court considered a decision of the Human Rights Tribunal where an applicant’s claim was dismissed after the applicant did not respond to an inquiry from the Tribunal about the status of certain WSIB proceedings. The applicant sought reconsideration of the dismissal order, claiming that he had not received the Tribunal’s email of inquiry. The Tribunal was satisfied that the email of inquiry was sent to and delivered to the applicant’s email address and therefore refused to set aside the dismissal order by decision dated April 15, 2024.
[22] On review, Justice Corbett of Divisional Court explained that the question for the Tribunal was not whether the email of inquiry was delivered to the applicant’s address. That point was but one fact going to the question of whether the applicant had abandoned the proceeding. That fact had to be placed within the context of other pertinent facts which included:1. The Applicant had not failed to meet his obligations as a party before the Tribunal previously. There was no history of delay or non-responsiveness by any party and holding the proceeding in abeyance had been approved by the Tribunal.
2. The Applicant had a record of diligent response to Tribunal communications in respect to another proceeding before the Tribunal.
3. The Tribunal had no information as to whether or when the WSIB proceedings had been resolved. Both parties agree that those WSIB proceedings are still ongoing as of today.
4. The reconsideration decision did not encompass a contextual analysis of whether the Applicant had abandoned the proceeding but rather focused on whether the Applicant had “received” the e-mail. [23] The Divisional Court concluded that failing to respond to one email, in all of the circumstances, could not justify an inference that the applicant had abandoned the proceeding. The inference that he had done so was unreasonable and was not allowed to stand.
[24] Similarly in this case the Human Rights Tribunal did not take a contextual approach in its reconsideration of its initial decision. It relied solely on the Rules with respect to a deeming provision and the failure of Royal LePage’s counsel of record to respond to two emails.
[25] In my view, the Tribunal in the Reconsideration Decision should have considered the contextual factors which included the following:1. Royal LePage had delivered a response to Ms. Barry-Sproule’s application and a reply to that response had been given by Ms. Barry-Sproule;
2. Royal LePage had participated previously in a mediation on the file;
3. There was a significant delay between the time of the mediation and the status request sent by the Tribunal. This raised at least the possibility of a change of counsel; and
4. There was no evidence before them that Royal LePage had any knowledge of its lawyers’ failures to respond. [26] In Graham v. Vandersloot, 2012 ONCA 60 (CanLII), the Court of Appeal dealt with the decision by a motion judge to deny an adjournment of trial in a personal injury action because she did not have up-to-date medical reports.
[27] In its decision, Justice Blair of the Court of Appeal, made reference to the principle that “the sins of the lawyer should not be visited upon the client”, which he found applicable. He noted that the principle was initiated by the Court of Appeal in Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd., [1985] O.J. No. 101, where the Court had stated,Undoubtedly counsel is the agent of the client for many purposes . . . but it is a principle of very long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor, if relief to the client can be given on terms that protect his innocent adversary as to costs thrown away and as to the security of the legal position he has gained. There may be cases where the plaintiff has so changed his position that this is impossible. [28] In the Ramirez decision, Justice Corbett found that it was clear the Tribunal had inferred abandonment of the claim from the failure to respond to one email. Justice Corbett concluded that the failure to respond to one email, in all of the circumstances of the case, could not possibly justify an inference that the applicant had abandoned the proceeding. That inference was unreasonable and was not allowed to stand. Justice Corbett found no reason to remit the reconsideration of the dismissal decision or the dismissal decision itself to the Tribunal. The dismissal was obviously unfair in all the circumstances. The application was therefore granted. Similarly in this case, I have concluded that the Reconsideration Decision cannot be allowed to stand. The failure of Royal LePage to respond to two emails could not, contextually, support a conclusion that Royal LePage had abandoned its intention to respond to the complaint. In this case, given that Royal LePage had given a clear intention to defend the case, and that the sole responsibility for the error which occurred lay with its counsel, the Reconsideration Decision was unreasonable and cannot be allowed to stand.
[29] In the Reconsideration Decision the Tribunal found that Royal LePage was “at fault” because of a rule that deems that clients who have a lawyer and direct that correspondence be sent to their lawyer are “deemed” to have notice of that correspondence. While the Tribunal is owed considerable deference when it comes to controlling its own process, to rely on this deeming rule to preclude a party from having any rights to participate if their lawyers are negligent, is unreasonable, in the absence of demonstrated non-compensable prejudice to the innocent party.
[30] Ms. Barry-Sproule argues that she has been subjected to further delay and has been prejudiced by the fact that she has exposed her trial strategy in the ex parte tribunal hearing which was held to determine her right to claim damages against Royal LePage. Parties are entitled to full disclosure of the other side’s case. The fact that Royal LePage now has the particulars of Ms. Barry-Sproule’s case is not the kind of prejudice that would prevent Royal LePage from having the right to have a hearing. There were serious consequences to Royal LePage. These consequences go beyond the damage award which was issued and reflect negatively on the reputation of Royal LePage. The level of prejudice suffered by Royal LePage rises to a level where it should take precedence over the right of Ms. Barry-Sproule to rely on the Default Decision. The order of the Tribunal is clearly unfair in all the circumstances. I therefore grant the application. The Tribunal’s Default Decision and Reconsideration Decision are quashed and arrangements should be made for a new hearing to be scheduled before the Tribunal on Ms. Barry-Sproule’s application for relief under the Human Rights Code. . Kiani et al v. Rivera et al. [admin/LTB]
In Kiani et al v. Rivera et al. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a landlord's RTA s.210 appeal, here brought against LTB findings "that the respondents’ tenancy in a rooming house was subject to the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) and awarded damages to each of the tenants are after being locked out from the rooming house".
Here the court considered the landlord's argument that the LTB erred in allowing them to be represented by a person not LSO-licensed:Issue #1: Did the Board err in permitting David Anton to represent the Landlord?
[15] This issue was raised in the Notice of Appeal as follows:[The LTB] erred in law in the issuance of it October 7th, 2024 Orders ... when Member Nikitin incorrectly decided to allow a non-licensee to act as a legal practitioner for the landlords, despite no objections by the parties. By doing so, the landlords received ineffective representation brought on by inadequate direct and cross-examination, resulting a denial of procedural justice. [16] This issue was not addressed in the Appellants’ Factum.
[17] Each Order addressed the Landlord’s representation as follows:The Landlord was represented by David Anton, who is not a licensee with the Law Society. He and [Mr. Charmchi] assured the board that his representation complied with the “Practice Direction on Representation before the Landlord and Tenant Board, Unlicensed Representatives”. David Anton appeared as the Landlord’s friend and was not being compensated. Neither the Landlord nor the Applicants objected to David Anton representing the Landlord. I noticed Mr. Anton referred to [Mr. Charmchi] as “Mr. Charmchi” and as “my client” at times during the hearings. These are unusual ways to address one’s friend but I didn’t invite parties submissions on this issue at the hearing and will therefore not address this matter any further. [18] The transcript also shows that both Ms. Kiani and Mr. Charmchi expressed their agreement when asked by Member Nikitin whether they were content with being represented by Mr. Anton.
[19] A complaint of ineffective representation at the Landlord and Tenant Board was also raised in Ricketts v. Veerisingnam, 2025 ONSC 841. I agree with the views expressed by Corbett J. at paras. 4-7:[4] I would find that 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] ... 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. [20] The LTB’s decision to permit David Anton to represent the Landlord is entitled to deference. The LTB is a high-volume tribunal that it is statutorily mandated to adopt the most expeditious method of determining questions arising in a proceeding that all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter: RTA, at s. 183. The Member raised the issue of Mr. Anton’s representation given that he was not licensed with the Law Society of Ontario. He also addressed the requirements of the LTB’s Procedural Direction on Representation before the Landlord and Tenant Board. Both Mr. Anton and Mr. Charmchi advised the Board Member that Mr. Anton was a friend and that he was not being compensated. Both Ms. Kiani and Mr. Charmchi told the Board Member that they wished for Mr. Anton to represent them. They are now dissatisfied with the outcome of the LTB hearing and Mr. Anton’s representation. However, it was open to them to retain counsel – as the Tenants did – or a paralegal, but instead chose to rely on Mr. Anton’s assistance. Ms. Kiani and Mr. Charmchi bear the responsibility for their choices, not the Member or the Tenants. Further, it appears that they did not raise their concerns about Mr. Anton’s representation with the Member nor did they seek a review of the LTB Orders on this basis or at all. At this point, more than one year after the LTB Orders were issued, it would be contrary to the interests of justice to send this matter back to the LTB for another hearing on the merits. . Bala v. Vanrivong [civil context]
In Bala v. Vanrivong (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a plaintiff unionized worker's appeal from a Small Claims dismissal, here where the lower court granted a "motion to strike the claim finding that the Act is clear in that the right to grieve is in lieu of the right to bring an action".
Here the court considered 'ineffective legal assistance', here in a civil matter:[41] Allegations of ineffective legal assistance in a civil matter are properly raised by way of a negligence action brought by the client against his/her legal representative. There are, however, some civil cases in which the nature of the claim gives rise to a public interest that transcends the private interests of the litigants and requires that the appellant be permitted to raise the incompetence of the legal representative as a ground for setting aside the judgment: OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, at para. 44.
[42] This is not one of those cases giving rise to a public interest that transcends the private interests of the Appellant. . Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency)
In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a Federal Court judgment dismissing "an application for judicial review of two related decisions of the respondent, the Canadian Food Inspection Agency (the CFIA)" in a high-media case involving the cull of a flock of farmed ostriches.
The court considers 'ineffective assistance of counsel' doctrine, here in a fresh evidence motion targetted at raising that issue - discussing it in both JR and appeal contexts:(2) Evidence of ineffective assistance
[33] We also decline to admit the evidence of ineffective assistance of counsel due to the nature of this appeal, where the alleged ineffectiveness occurred before a lower court hearing an application for judicial review.
[34] The affidavit the appellant wishes to tender outlines that the appellant’s counsel before the Federal Court took a security interest for unpaid legal fees in the proceeds that the appellant would receive under the Compensation for Destroyed Animals and Things Regulations, SOR/2000-233 [Compensation Regulations] if the flock were destroyed. Attached as exhibits to the affidavit are copies of the security agreement as well as email communications between the appellant’s principals, its counsel before the Federal Court, and another lawyer who acted as independent counsel to the appellant regarding the security agreement. The appellant alleges this security interest created a conflict of interest.
[35] In Mediatube Corp. v. Bell Canada, 2018 FCA 127, 156 C.P.R. (4th) 289 [Mediatube], a case involving a trial—as opposed to an application for judicial review—where ineffective assistance of trial counsel was alleged, Justice Stratas explained at paragraph 58 that "“[i]n adducing evidence, the appellant does not need to satisfy the stringent test for fresh evidence ""in ""Palmer v. The Queen, "1979 CanLII 8 (SCC), "[1980] 1 S.C.R. 759""”". Subsequent case law provides that "“the evidence being adduced ‘must be admissible (applying the usual rules of evidence), relevant to the issue raised on appeal, and credible’”" (Nguyen v. 1108911 B.C. Ltd., 2024 BCCA 48 [Nguyen] at para. 15, citing Boone v. Jones, 2023 BCCA 215 at para. 34, R. v. Aulakh, 2012 BCCA 340, 326 B.C.A.C. 177 at paras. 59–67, and Beaulieu v. Winnipeg (City of), 2021 MBCA 93 at paras. 28–35, 54–63).
[36] As for what is required for the appellant to succeed on this ground, "“the appellant must show that counsel’s acts or omissions constituted incompetence and a miscarriage of justice resulted”" (Mediatube at para. 29, citing R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520). In the context of an appeal, an actual conflict that affected counsel’s performance is generally sufficient; typically, it need not have affected the result of the trial: Mediatube at para. 57. See also Nguyen at para. 54.
[37] The foregoing statements regarding admissibility on appeal of evidence of alleged incompetence of counsel before a lower court must be modified in the context of an allegation of ineffective counsel before a lower court presiding over an application for judicial review, rather than a trial, due to the different standard of review applied in a judicial review appeal as opposed to other appeals.
[38] On appeal in a judicial review application, like the present one, this Court must determine whether the Federal Court identified the proper standard of review to be applied to the CFIA’s decisions and whether it properly applied that standard: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 [Agraira] at paras. 45–47; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, [2021] 3 S.C.R. 107 [Horrocks] at paras. 10–12. Therefore, this Court essentially steps into the shoes of the Federal Court, performs a de novo review of the CFIA’s decisions, and accords "“no deference to the reviewing judge’s application of the standard of review”" (Horrocks at para. 10.)
[39] This Court has previously held that what is in essence a "“do-over”" on appeal effectively cures breaches of procedural fairness that occur before the Federal Court in a judicial review application: see Haynes v. Canada (Attorney General), 2023 FCA 158 at paras. 14–16, leave to appeal to SCC refused, 41047 (6 June 2024); Whitelaw v. Canada (Attorney General), 2025 FCA 68 at paras. 10, 16; Jagadeesh v. Canadian Imperial Bank of Commerce, 2024 FCA 172 at para. 40. That logic applies equally to allegations of ineffective assistance of counsel before the Federal Court in a judicial review application.
[40] An exception would arise only if an appellant raises errors in the court below for matters to which appellate standards of review apply, namely, "“findings of fact or mixed fact and law based on the consideration of evidence at first instance”" (Apotex Inc. v. Canada (Health), 2018 FCA 147, 157 C.P.R. (4th) 289 at para. 57) or in its exercise of remedial discretion (see e.g., Makivik Corporation v. Canada (Attorney General), 2021 FCA 184 at para. 65). The appellant does not allege that the Federal Court erred in respect of any such matters.
[41] Thus, the appellant’s ability to directly challenge the CFIA’s decisions before us means that the evidence of ineffective assistance is not relevant on appeal and should not be admitted: see Nguyen at para. 15. . Ricketts v. Veerisingnam
In Ricketts v. Veerisingnam (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 administrative appeal, here where the main issue was how the RTA system should consider a party's argument of 'ineffective assistance of counsel' (IAC) - which is typically (though not always) advanced as a criminal defence.Note: This three-ruling RTA s.210 appeal needs some sorting out. The dissenting judge (Nakatsuru J at paras 85-106) would have allowed the appeal on the appeal-argued 'ineffective assistance of counsel' (IAC) grounds, while the two ruling judges (Newton J at para 1, and Corbett J at para 4) dismissed the appeal essentially on the basis of it's late raising [para 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." The important point to me is that all judges would consider the IAC argument, only with varying degrees of preliminary LTB procedural requirements. ***********************
These quotes are from Corbett J:[3] My colleague [SS: Nakatsuru J, dissenting] 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.
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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 CanLII 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.
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