Construction Liens (P1 Scope)

Page v Maple Ridge Community Management Ltd., 2017 CanLII 21772 (ON SCSM)

[3] Ms. Page takes exception to the Defendant’s­­­­­ use of a paralegal, employed by the Defendant, to do what is outside of a paralegal’s authorized area of practice. On that basis, Ms Page denies that Maple Ridge is entitled to payment of legal fees and expenses for work done in violation of the provisions of The Law Society Act, R.S.O. 1990 c. L-8, The Solicitors Act R.S.O. 1990 c. S-15, and Law Society by-laws and regulations. I note that Ms. Page paid the entire sum of $1586.95 demanded by Maple Ridge on May 6, 2016 by cheque “under protest” prior to the commencement of this action and the lien has been discharged..

[4] Ms. Page, does not stop simply with a claim for the return of legal fees of $819.25 charged to her in connection with the registration and discharge of the lien. She also claims $25,000 in punitive damages for what she refers to as “high handed and unethical behaviour” and $25,000 in special damages for “the unauthorized practice of law.” There was also a claim of $25,000 for slander of title in connection with possible difficulties looming for Ms. Page at the commencement of this proceeding with respect to renewal of her mortgage while there was a lien registered on title. As the lien was removed prior to any mortgage renewal, Ms. Page advised at the commencement of trial that this claim was withdrawn. There is also no dispute about the legitimacy of YCC 34’s assessment of $767.70.

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[34] The Plaintiff referred me to The Solicitors Act R.S.O 1990 c. S.15, and in particular s. 1(1). On its face it prohibits someone who is not a solicitor from recovering legal costs. However, on closer reading, the section appears to be restricted to situations where a person who is not a solicitor represents a party in “any action or proceeding”. “Action or proceeding” is not defined in the act, but it is in other legislation, including the Courts of Justice Act R.S.O 1990, c. C-43 s. 1 where an action is defined as a civil proceeding. “Proceeding” is generally used in the Courts of Justice Act and in The Rules of Civil Procedure as referring to a civil court proceeding. Further, if an unauthorized person charges fees he or she is “guilty of contempt of the court in which such proceeding was commended, carried on, or defended”.

[35] This appears to prevent unauthorized persons from charging fees in court proceedings. Unfortunately for the Plaintiff, the preparation, registration and discharge of liens is not “an action or proceeding” and therefore falls outside of the scope of s.1(1) of the remedy that otherwise might be available to her under the Solicitors Act. I regard this as something of a legislative oversight, and one in need of remediation. That however is a matter that must be dealt with by the Legislative Assembly of Ontario.

[36] What is clear is that the Law Society, as in the Chiarelli case, has ample authority to seek a variety of remedies against those engaged in unauthorized practice. There is clear authority for the Law Society to prosecute and pursue remedies under s. 26.1 of the Law Society Act R.S.O 1990 c. L. 8. The unauthorized practice page on the Law Society’s website (http://www.lsuc.on.ca/with.aspx?id=2147486087) also clearly indicates that it has the power and authority to seek remedies and to punish unlicensed person for practicing law or licenced persons from practicing in areas where they are not authorized to do so. But there is no indication there that a private person such as a plaintiff can as an individual pursue remedies.

[37] If a remedy was to be sought, it had to be sought by the Law Society, and as already been noted in Plaintiff’s Exhibit 2, the Law Society elected not to do so.

[32] I therefore must find, with some regret, that I am unable to make an order requiring the Defendant reimburse the plaintiff for legal fees of $819.25 in connection with preparation, filing and discharge of a lien on her property.