Third-Party Property Managers

The Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391 (CanLII)

[22] A review of the evidence before the application judge clearly supports his finding that the appellant has been providing unlicensed legal services. There can be no doubt that these services, including participating in a mediation and attending hearings, qualify as the provision of legal services under the Law Society Act. Indeed, the thrust of the appellant’s submissions both before the application judge and on appeal was not that he was not engaged in the provision of legal services, but that he had a right to do so because he was a landlord and thus had a right to self-represent. Accordingly, there was ample evidence upon which the application judge could base his decision to issue an injunction.

[25] The question that remains is whether the appellant as a landlord under the Residential Tenancies Act has a right to self-represent. For the following reasons, I conclude that he does not.

[26] First, there is nothing in the Residential Tenancies Act that explicitly grants the appellant any right to self-represent. The act is silent on whether a landlord can be self-represented.

[28] The only legislation which explicitly deals with the right to self-representation is the Law Society Act. Section 8(3) of that statute permits self-representation in the limited circumstance where an individual “is acting on his or her own behalf”. That exception is not applicable in the case at bar, because, quite simply, the appellant is not acting on his own behalf; he is acting on behalf of his client.

[29] Although the appellant may be considered a landlord for the purposes of certain aspects of the Residential Tenancies Act, this does not change the fact that he is providing legal services to a third party. Any obligations or rights flowing from proceedings before the Board, to the extent that they impact on the appellant at all (e.g. orders under ss. 204 or 205 of the Residential Tenancies Act to pay monies or costs to a tenant), are derivative in nature. They flow from the fact that the appellant is providing services to the property owner. If the appellant were not acting for a client in any given case, he would not have any interest in the proceeding and thus no standing.

[30] Statutes are to be interpreted harmoniously. It is presumed that the legislature spoke with one voice and did not intend to contradict itself: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008), at p. 412.

[39] I find that the appellant has no right to self-represent before the Board. The appeal is, therefore, dismissed, save for an amendment to the terms of the injunction to limit the prohibition contained therein to an order prohibiting the appellant from appearing before the Board on behalf of his clients or on behalf of himself, save for situations where he is an owner of a property subject to a proceeding before the Board.

TEL-85288-17 (Re), 2018 CanLII 141446 (ON LTB)

2. At the initial hearing held on April 23, 2018, C.C. said she was representative for this Landlord; however, after questioned it was determined that she was not a direct employee of the Landlord, nor was she a licensee with the Law Society. She is a manager with I.C.C P.M. (‘ICC’), which acts on behalf of I..

3. The Court of Appeal issued Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391 (CanLII) which states that “any right of self-representation to be subject to the provisions of the Law Society Act”. Section 8(3) of the Law Society Act permits an individual to act on their own behalf. In this case, the representative is not acting on her own behalf. She is acting on behalf of another company, which is a separate entity, making the company ICC’s client. Under the Law Society Act she is providing legal services without a proper license. For this reason, the representative cannot represent at the Board unless it is directly representing the company as a direct employee.

4. ICC performs the duties of a landlord including, but not limited to, collecting rent, permitting occupancy. As such, the Board has amended the applications on its own motion to include ICC as a party to these applications.

Kruti Parmar v. Ken Chanski; Laurie Chanski ONLTB EAL-81351-19

1. For the reasons that follow, the application is denied.

4. It was not disputed that Mr. Thompson is employed by a third-party property management company and not by the Landlord

5. The property management company does not own the rental unit and the lease was not signed by the property management company. Therefore, the property management company does not permit occupancy of the rental unit and does not meet the definition of "landlord" as set out in the Residential Tenancies Act, 2006.

6. It was also agreed that the 'N-4' notice and the L-2 application were drafted, signed and served by Mr. Thompson, who is neither a lawyer nor a paralegal, nor otherwise exempt from the licensing requirements of the Law Society Act.

14.1 have considered the argument made by JT that there having been no demonstrated prejudice to the Tenants or abuse of process, the matter ought not be dismissed on what appears to be a technicality.

15. However, the principles set out in the Chiarelli case are binding upon me. I have re­-examined the Chiarelli case at length. The decision quotes relevant sections from the Law Society Act (the 'LSA') in deciding what activities are the "provision of legal services".

16. Section 1.(6) of the LSA specifically includes the giving of advice regarding legal interest rights or responsibilities (sub-paragraph 1.(6)(1)), the selection, drafting, completion or revision of documents for use in a proceeding before an adjudicative body (sub-paragraph 1.(6)(2)), and representing a person in a proceeding before an adjudicative body (subsection 1.(6)(3)).

17. In the Chiarelli case, the decision was unanimous on this point: an unlicensed person, such as a property manager, who is not a statutory party to an application (i.e. meets the definition of Landlord) may not provide legal services, including the completion of forms and documents, and does not have standing before the Board.

18. Therefore, I have concluded that JT does not have standing before the Board, and as such could not represent the Landlord at the hearing, nor file the application, nor complete and serve the N-4 on the Landlord's behalf.

19. Although decisions of the Board are not binding in the same way as decisions of Divisional Court or Court of Appeal are binding, I find both Board decisions (TEL-97410-18 and EAL-80406-19) to be informative and to be consistent with the direction set by the Chiarelli decision and the analysis remains valid.

20.As a result, since the notice and application were not completed by the Landlord or the Landlord's authorized and licensed representative as required by the Chiarelli decision, they are not valid. Furthermore, the Landlord was also represented by an agent at the hearing who is not a licensed representative and thus did not have standing before the Board. For these reasons, the application is denied.

Landlord Rescue Inc. v. Jessica Puglieso ONLTB TEL-97410-18

1. The Applicant is not a "Landlord" as defined in the Residential Tenancies Act, 2006 (the 'Act') and is not authorized to provide legal services in the Province of Ontario. The Applicant therefore did not have the authority to serve notices of termination under the act, and did not have authority to file applications with the Board.

2. The Applicant is a private property management company. The application does not own the residential complex or the rental unit. Futhermore, the Applicant did not enter into the March 28, 2018 written tenancy agreement with the Tenant. The Applicant therefore, is not a "person who permits occupancy of a rental unit". Instead, [owner], the property owner and the person who entered into the March 28, 2018 tenancy agreement with the Tenant, is the "person who permits occupancy of a rental unit"; and [owner] is therefore the "landlord" as defined in the Act.

4. The courts' reasoned in Law Society of Upper Canada v. Chiarelli are applicable in this present application. The Applicant in this proceeding acts as a property manager in exchange for financial compensation. The applicant is not; however, the owner of the property, and is not a person who permits people to occupy rented residential premises in exchange for the tenant;s obligation to pay rent. Accordingly, the Applicant does not meet the Act's definition of "Landlord".

5. Subsections 64(1), 68(1) and 59(1) of the Act permit a landlord to serve notices of termination where a tenant is alleged to have substantially interfered with the reasonable enjoyment of the property, or is alleged to have failed to pay all of the rent the tenant was required to pay. Subsection 69 of the Act permits a landlord who served a notice of termination to apply to the Board to terminate a tenant's tenancy.

6. In this case, I conclude that since the Applicant is not a "landlord" as defined in the Act, the Applicant did not have authority under the Act to serve notices of termination and to begin applications to the Board.

11. The Applicant's application to terminate the tenancy and evict the Tenant for non-payment of rent shall be dismissed, because the Applicant did not have standing to serve the Form N4 notice of termination or file the L1 application with the Board.

12. I have elected not to refer the Applicant to the Law Society of Ontario to determine whether the Applicant has engaged in the unauthorized practice of law. There was no evidence adduced at the hearing to show that the Applicant acted in bad faith. I am therefore confident that this order will inform the Applicant and her employer, the property owner, of some of their rights and responsibilities.

Mark Redlich v. Cory Scouten ONLTB EAL-80406-19

1. For the reasons that follow, the Landlord’s application is dismissed.

2. The application before me was filed with the Board on February 11, 2019. The application notes the Landlord as the landlord of the rental unit but is signed by Lesley Donovan (‘LD’). LD is the owner of Edgewood Property Management, a private property management company retained by the Landlord to manage the rental unit.

3. Section 185 of the Residential Tenancies Act, 2006 (the ‘Act’) states the following:

(1) An application shall be filed with the Board in the form approved by the Board, shall be accompanied by the prescribed information and shall be signed by the applicant.

(2) An applicant may give written authorization to sign an application to a person representing the applicant under the authority of the Law Society Act and, if the applicant does so, the Board may require such representative to file a copy of the authorization.

4. Pursuant to section 185 of the Act, the application before me must have been signed by the Landlord or someone representing the Landlord under the authority of the Law Society Act.

5. LD is not authorized to provide legal services to the Landlord with respect to matters that arise under the Act. As LD is neither the Landlord nor an individual licensed under the Law Society Act, the application is not properly before the Board.

It is ordered that:

1. The Landlord's application is dismissed.

Terry Charbonneau et al v. Jennifer Roloson; Steven Resendes ONLTB SWL-30741-19

1. At the outset, Mr. Harvey on behalf of the Landlords, oddly enough, requested an order dismissing the applications on the ground that both N4 and N8 notices of termination as well as the L 1 and L2 applications were signed by Brittany Colley OBO [on behalf of] Rentcorp Property Management.

2. Mr. Harvey submitted that Brittany Colley (BC) is not in good standing as licensed paralegal under the Law Society of Ontario. Mr. Harvey submitted that BC has been suspended administratively as of July 13, 2018. Mr. Harvey requested an order that strongly denounces the provision of legal services by persons who are not licensed as paralegals or lawyers by the Law Society of Ontario so that the Landlords may "hold accountable" BC and Rentcorp Propery Management (Rentcorp).

6. The Landlords signed a Client Management Contract dated March 20, 2017 whereby they appointed Rentcorp as Property Manager on the rental unit on a sole and exclusive basis. Paragraph C ( c) and (d) specifically authorize Rentcorp to do the following on behalf of the Landlords:

c. To terminate tenancies, provided that the Property Manger shall obtain the Owner prior consent before terminating any tenancy and to sign and to serve in the name of the Owner such notices as are deemed necessary for such termination by the Property Manager if prior to the term agreement end date;

d. Preparation and service of all legal notices in a timely manner for breach of lease or rent increases (provided that the Owner shall be responsible for any legal, tribunal, court, lawyer or legal services costs required, including appeals) if necessary, in eviction or termination proceedings.

7. At the hearing, the Landlords confirmed that they signed the Client Management Contract as well as authorized Rentcorp to sign the N4 and NS notices of termination and L 1 and L2 applications filed with the Board.

8. I find that "BC OBO Rentcorp" signed the N4 and NS notices of termination as the Landlords' agent, in compliance with Section 43 (2) of the Act.

9. I find that "BC OBO Rentcorp" signed and filed the L 1 and L2 application as the Landlords' agent with the Landlords' written authorization under the Client management Contract, in compliance with Section 185 of the Act.

10. Mr. Harvey requested reasons for denying his motion to dismiss, which would distinguish this scenario from the Ontario Court of Appeal case cited as The Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391.

11. The specific issue in Chiarelli was the appellant's appearance before the Landlord and Tenant Board. The application judge had found that the appellant "acts as a legal professional without a licence when he appears before the Board as paid representative" and that "the public interest is best served when properly licensed ,legal professionals appear before administrative tribunals". The OCA framed the issue as follows:

The question is whether the provisions of the Residential Tenancies Act permit the appellant to self-represent because he is a person "who permits occupancy of a rental unit" and/or because he is a person who is "entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent". (para.- 23) The question that remains is whether the appellant as a landlord under the Residential Tenancies Act has a right to self-represent. (para. 25)

12. The OCA further defined and narrowed the issue in paragraph 36:

... the conduct complained of by the Law Society in its application for the injunction was that the appellant has represented and continues to represent parties at the Board. That was the impugned activity argued before the application judge. It is clear that the focus of the application was the appellant's representation of his clients at the Board.

13. The OCA determined that the appellant was participating in mediations and attending hearings which qualify as the provision of legal services under the Law Society Act. The OCA determined that the appellant's interests, when appearing before the Board, were derived from his provision of services to the property owner; therefore he was not acting on his own behalf but on behalf of his client, the property owner. Therefore, Section 8 (3) of the Law Society Act which permits self-representation where an individual "is acting on his or her own behalf' did not apply.

17. In my view, Chiarelli does not stand for the proposition that only a licensed paralegal or lawyer may act as agent for the purposes of signing and serving a notice of termination under Section 43 (2) and signing and filing an application under Section 185 of the Act. There is certainly nothing in the language of the Act that requires such agent to be licensed by the Law Society.

18. In my view, Chiarelli does not state that signing and serving a notice of termination and signing and filing an application constitute legal services which only an individual licensed by the Law Society can carry out.