Thursday, 2 May 2013

Can a Property Manager Represent a Landlord in Proceedings before the Board

There is an interesting debate going on in Ontario.  The question is whether a property manager, hired by a landlord to manage and run a property, is permitted to initiate legal proceedings against tenants and appear at the Hearing to prosecute the application and evict the tenant.  Or, is it the case that the property manager must hire a licenced professional--which means either a lawyer or a paralegal--to represent the Landlord at the Board.

This issue has been coming to a head since the province of Ontario required paralegals to become licenced under the provisions of the Law Society Act.  For many years, paralegals were unlicenced individuals who hung up a shingle asserting that they could provide certain kinds of legal services.  These unlicenced paralegals were not necessarily formally educated, may only have had "experience", or perhaps were just willing to give it a go and learn on the fly.  The public had no way of knowing what they getting and no assurance that these unlicenced paralegals met any basic standard of competency.  As unregulated professionals there was no insurance, no book-keeping oversight, no audit functions, and nothing in place to provide the public with any protection whatsoever other than the motto--buyer beware!  Nevertheless, these paralegals were popular--because relative to lawyers--their services were virtually free!

Unlicenced paralegals appeared at the Landlord and Tenant Board as "agents" of the landlord.  This was permitted in the law, and to be fair there were a great many good paralegals who knew, and still to this day know, what they are doing.  However, as times changed increasing numbers of unlicenced paralegals appeared on the scene and innocent people were suffering the consequence of being represented by incompetent agents.  For this, and also other reasons, it was decided by the Province, including the Law Society and the Paralegal Associations, that being a Paralegal would mean becoming a regulated professional, with competency standards, rules of professional conduct, and all of those things that encourages the public to have confidence in professionals.

Today, paralegals in Ontario are indeed licenced under the Law Society Act.

The licencing of certain paralegals and the imposition of standards has left some people excluded from the profession.  These people continue to seek to do the legal work that only lawyers and paralegals are permitted, at law, to do before the Ontario Landlord and Tenant Board.  These people often style themselves as "property managers" or "landlord representative" or even as "the landlord for the purpose of managing the property".  In all instances, they are trying to get around the legal requirements of the Law Society Act and are trying to practice law when the only people entitled to practice law are lawyers and licenced paralegals.

Determining who may appear to represent a landlord, or a tenant, at the Board is more difficult that one might imagine.  People do have the right to appear in person and certainly individuals can have an unpaid helper come along with them, or a family member can speak for a someone etc..  But what about a corporation? Should a corporation be permitted to appear through employees?  Or should the Board require Corporations to Appear only through a licenced individual as is the case in the Superior Court of Justice?  For a specific example, should a rent clerk at in a large corporate landlord's office be permitted to prepare legal documentation, submit that documentation to the Board and Appear at the Landlord and Tenant Board to argue the case?  Is there a distinction between a person being paid by a landlord to provide legal services and an individual who is an employee of a landlord on a full time basis?

There aren't answers to all of these questions yet.  However, we have come a long way to understanding that Property Managers are not able to represent the interests of landlord clients at the Board.  This was made clear in the case of The Law Society of Upper Canada v. Chiarelli in which case the Court granted a permanent injunction against the property manager from appearing at the Board as a legal representative.  The nature and scope of the services being provided is reviewed in the decision and it is now clear that those businesses we understand to be Property Management Companies are not permitted to represent their clients at the Landlord and Tenant Board.  While this case is not a general pronouncement on the issue, it is certainly precedent to challenge any other unlicenced person appearing at the Landlord and Tenant Board on behalf of a party.

In my opinion, the reported cases are beginning to recognize that the provision of legal services in the Landlord and Tenant context has been professionalized.  The law will no longer tolerate itinerant purveyors of legal solutions to unsuspecting landlords and tenants.  In time, we can expect that all of the legal processes contemplated under the Residential Tenancies Act will have to be performed by a licenced lawyer or paralegal or the actual individual personal landlord or tenant.  This will mean that all legal forms, Notices of Termination, other Notices (i.e. Notices of Rent Increase), Applications will have prepared, served, and filed by licenced individuals unless the it is the landlord or tenant themselves that are preparing the forms.

Some people will have an opinion about whether this is a good thing or bad thing.  From my perspective it is neither good or bad, right or wrong.  It is simply the reflection of a policy choice to regulate a previously unregulated profession.  The choice having been made to regulate and hence impose fees, education requirements, insurance requirements (i.e. expenses), it necessarily follows that the work these regulated professionals do must be protected from unlicenced interlopers.  Otherwise, why would anyone bother to be licenced and regulated?

Michael K. E. Thiele
Lawyer
Ottawa, Ontario
Quinn Thiele Mineault Grodzki LLP

11 comments:

  1. I’m very impressed with the article you have written… Many landlords and tenants will get benefits on it…
    Bridget@ Civica Services

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  2. I have seen your site… site is good,,,, if you put more images or photo gallery in it… then will more attractive .... knowledgeable information in site. Thanks for share with us.

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  3. This comment has been removed by a blog administrator.

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  4. Since this article was written in 2013, is there any clarification from recent case law? If a property manager has a proper "agency authorization" from the owner, will that exempt him from having to be a licensed paralegal?

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    1. simple answer is no, you must be licenced to provided legal services which in my opinion includes form work

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    2. Hi: The anonymous reply above is correct with respect to the requirement to be represented by a professional licenced by the Law Society of Upper Canada. There are still many who try to cut corners or sneak into hearings pretending to be the landlord or passing themselves off as owners. In some instances, where no one is complaining a blind eye is turned to this happening though it is less than it once was. Many of the Property Management companies that once provided LTB services to their clients are now making it clear at the front end that they can not attend at the LTB to represent their landlord clients. In my opinion this is as it should be.

      In my view, the biggest benefit in requiring parties with representation to be represented by licenced individuals is that those cases are more likely to be resolved efficiently and fairly. Self represented parties and non professional representatives end up needlessly wasting a lot of time on silly positions and cases that the professionals would simply resolve through mediation.

      With respect to needing licenced professionals for form completion I am certainly aware that this is the position of many paralegal organizations. Support can be found for that argument in caselaw and it is an understandable position. At present I think you can get away with non-licenced external to the organization persons completing forms but you should be aware that challenges are continuing and forthcoming. The safest course of action is to make sure the property management company is using a licenced paralegal or lawyer to prepare the legal paperwork (forms, applications) and then there will be no risk of the proceedings being challenged.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    3. Michael, I love all your articles but this one is very interesting. Although I disagree, most property management companies that are not licensed do in fact attend tribunal on behalf of the landlord. As a licensed realtor I believe that acting as a property manager and representing an owner at tribunal is within my profession and therefore a legal representative would not be required unless the eviction or action goes further than the tribunal forms. If the landlord on the lease is the brokerage and I am the licensed agent, then the owner should not have to appear. This service would be part of the brokerage agreement but there would be no additional charge as per Ontario Laws. I am interested to hear your thoughts on this.

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    4. Hi Sherry: I think that the law is clear and the Chiarelli decision (cited in the article) still reflects the law in Ontario. Except for very limited circumstances, paid representatives in Ontario who appear before the Landlord and Tenant Board need to be licenced paralegals or lawyers. If you read Chiarelli closely I don't think that you can come away with any other conclusion. If you look at some of the cases considering Chiarelli--including by the Board, it becomes clear to me that the structure you are proposing will not actually "work" if it is analyzed.

      That being said, at present the Landlord and Tenant Board is not doing very much to enforce Chiarelli and is largely dealing with the issue of unlicensed representation on a case by case basis. You are indeed correct, there are unlicensed people appearing before the Board and nothing is happening. However, you should be aware that this is not sitting well with the licenced paralegals (who, as between them and lawyers, make up the largest group appearing before the Board). There are active challenges afoot and this issue is far from settled. You have to remember that paralegals were for the longest time unregulated and simply agents for landlords who through experience appeared and represented landlords (and tenants). That right was taken away through regulation and now they pay fees and have all of the carrying costs of a regulated profession. Having been forced to become "regulated" the benefit is supposed to be that they, along with lawyers, have an exclusive right to appear before Boards as paid representatives. This issue is far from resolved and in time I think the paralegals will have much greater success in excluding non-licensed individuals from appearing at the Board. In the mean time I expect others will do what they are allowed to do pending being told they can't. However, in your circumstances, I'd be careful about contracting for services with third parties promising them a service that you may not be able to provide into the future without actually hiring your own paralegal or lawyer.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  5. Does the person filling out the forms for the corporation require their status to be as providing legal services? I've seen where the person is a licensed paralegal but the LSUC directory states they are not providing legal services.

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    1. Hi: At present, I am unaware of any adjudicator at the Landlord and Tenant Board taking issue with the qualifications of the person who prepared the forms. Hence, an application before the Board at this time is unlikely to be challenged or dismissed based on the qualifications of the individual who prepared the forms. However, as I think your question telegraphs, there is not universal agreement that non-licensed individuals may prepare forms as this work is may be considered legal work that is required to be completed by a licensed person. I don't entirely disagree with this view as corporations are generally required to act by counsel. When non-licensed individuals hire out their services to do legal work (even just preparing forms), they are taking work away from individuals who are compelled to be licenced and who pay fees for the privilege of working in the legal field--which includes residential landlord and tenant law.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  6. After reading several articles/blogs online regarding who can represent a landlord at a hearing, I decided to call the Ontario Landlord and Tenant Board to clarify.

    A LTB representative explained to me that in fact a property manager can represent a landlord at a hearing.

    I am confused by the contradiction of what I've read online as to who can represent a landlord at a hearing and what a LTB representative told me over the phone only moments ago.

    Can you speak to this?

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IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.