Third-Party Property Managers

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-10-31
CLNP Page ID:	167
Page Categories:	[Landlord & Tenant (Residential)], [Hearing Process (LTB)]
Citation:	Third-Party Property Managers, CLNP 167, <G>, retrieved on 2024-10-31
Editor:	P08916
Last Updated:	2021/07/31

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

43 (1) Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall,

(a) identify the rental unit for which the notice is given;

(b) state the date on which the tenancy is to terminate; and

(c) be signed by the person giving the notice, or the person’s agent. 2006, c. 17, s. 43 (1).

185 (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. 2006, c. 17, s. 185 (1).

(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. 2006, c. 17, s. 261 (3).

Law Society Act, R.S.O. 1990, c. L.8

1 (1) In this Act,

...

(5) For the purposes of this Act, a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person. 2006, c. 21, Sched. C, s. 2 (10).

(6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:

1. Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person.

2. Selects, drafts, completes or revises, on behalf of a person,

i. a document that affects a person’s interests in or rights to or in real or personal property,

ii. a testamentary document, trust document, power of attorney or other document that relates to the estate of a person or the guardianship of a person,

iii. a document that relates to the structure of a sole proprietorship, corporation, partnership or other entity, such as a document that relates to the formation, organization, reorganization, registration, dissolution or winding-up of the entity,

iv. a document that relates to a matter under the Bankruptcy and Insolvency Act (Canada),

v. a document that relates to the custody of or access to children,

vi. a document that affects the legal interests, rights or responsibilities of a person, other than the legal interests, rights or responsibilities referred to in subparagraphs i to v, or

vii. a document for use in a proceeding before an adjudicative body.

3. Represents a person in a proceeding before an adjudicative body.

4. Negotiates the legal interests, rights or responsibilities of a person. 2006, c. 21, Sched. C, s. 2 (10).

...

26.1 (1) Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario.

...

(5) A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.

...

(8) This section applies to a person, even if the person is acting as agent under the authority of an Act of the Legislature or an Act of Parliament.

Law Society of Ontario, By-Law 4

PART V

PROVIDING LEGAL SERVICES WITHOUT A LICENCE

30. The following may, without a licence, provide legal services in Ontario that a licensee who holds a Class P1 licence is authorized to provide:

In-house legal services provider

1. An individual, other than a Canadian law student or an Ontario paralegal student, who,

i. is employed by a single employer that is not a licensee or a licensee firm,

ii. provides the legal services only for and on behalf of the employer, and

iii. does not provide any legal services to any person other than the employer.

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.

TSL-09653-10-RV (Re), 2011 CanLII 100650 (ON LTB)

16. VC also took the position before me that all property managers can appear before the Board as paid professionals for one or more landlords by virtue of the definition of “landlord” set out in subsection 2(1) of the Residential Tenancies Act, 2006 (the ‘Act’). The definition reads as follows:

“landlord” includes,

(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,

(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and

(c) a person, other than a tenant occupying a rental unit in a residential complex, 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; [Emphasis added.]

17. Essentially, VC takes the position that all property managers are “landlords” under the Act when they appear before the Board because they are acting as the landlord’s “personal representative”. Again, I believe that this argument is based on a misreading of the wording and intent of the enactment.

18. The definition of landlord was deliberately intended to be broad as a form of consumer protection for tenants. That is also true in the context of the broad definition of tenant in the Act. It is not uncommon for a tenant to deal exclusively with a property management company or other personal representative and to have no knowledge of who actually owns the residential complex they live in. The broadness of the definition was intended to ensure that a tenant in this situation is not required to conduct expensive property searches to discover who is the owner of the building they live in but rather ensures they can always name someone as a landlord to bring an application to the Board.

19. Based on the interpretation put forward by VC, no one who is paid to appear before the Landlord and Tenant Board as a legal representative on behalf of another person would ever run afoul of the licensing requirement for legal representatives set out in the Law Society Act as they could all validly describe themselves as “personal representatives”, a phrase that also appears in the definition of “tenant” in the Act. Clearly, it is contrary to any commonsense approach to statutory interpretation for the Board to interpret “personal representatives” to include “paid legal representatives” as to do so would completely defeat the entire purpose of licensing legal professionals, and make the Board the only tribunal in Ontario where legal professionals can operate completely unregulated. Such a result would be an absurdity and cannot possibly have been the intent of the legislature in creating the Act or for that matter, the Law Society Act.

20. As a result of all of the above, I agree with the Tenants that if VC is paid by the Landlord to appear before the Board with respect to these applications, it constitutes a contravention of the Law Society Act. Therefore, pursuant to section 23 of the SPPA it would be appropriate to bar the Landlord from paying VC to represent him before the Board on any future appearances involving these claims in order to prevent an abuse of process. An order shall issue accordingly.

TSL-21992-11-RV (Re), 2012 CanLII 27914 (ON LTB)

4. In short, section 26.1 of the Law Society Act says that persons who are not licensed by the Law Society of Upper Canada to act as legal representatives are not permitted to provide legal advice or act as representatives before the courts and tribunals of Ontario. Every person who breaches section 26.1 is guilty of an offence and on a first conviction is liable for a fine up to $25,000.00 and for subsequent convictions up to $50,000.00. As a result Board Members habitually ask representatives who appear before us if they are licensed. If they are not it is a generally accepted standard practice for Members to ask questions designed to determine whether or not one of the exemptions to the licensing requirement set out in Parts V and VI of By-Law 4 passed pursuant to the Law Society Act would apply.

5. Subsection 9(2) of the Statutory Powers Procedure Act says in part: “A tribunal may make such orders or give such directions at an oral or electronic hearing as it considers necessary for the maintenance of order at the hearing…” The Board is part of the justice system in Ontario and Members have the power and obligation to control the proceedings before us and to maintain order. I believe we perform this screening role with respect to representatives in part because of our general obligation to uphold the laws of Ontario and in part because of our obligation to control our proceedings. If we ignore some of the laws of Ontario that apply to the people who appear before us because it is convenient to do so, then we bring the administration of justice into disrepute, contribute to an abuse of process, and invite the disrespect of the licensed members of the profession.

...

8. According to the letter provided by the Landlord’s lawyer, KB is employed by W.F.P not the Landlord. Rather the Landlord is a separate corporation owned by WFP. KB seems to be under the mistaken impression that because W.F.P owns the Landlord they are a single entity and therefore a single employer. This is simply incorrect. A corporation is a legal entity just like an individual person. This means that by attempting to represent the Landlord she is trying to provide legal services to a person other than her employer. From what KB said to me at the hearing it would appear that she has represented the Landlord before other Board Members, tribunals and courts. If that is true, then that is a matter for prosecution by the Law Society. I indicated at the hearing that I would forward the letter provided to me from the Landlord’s lawyer to the appropriate authority within the Board for further consideration and action. I can now confirm that I have done so.

9. As a result of all of the above, I refused to permit KB to represent the Landlord at the hearing before me and stood the application down at her request until the Landlord’s representative (who is an owner of the corporate Landlord) could appear. The hearing then proceeded accordingly.

SOL-53590-14 (Re), 2014 CanLII 77457 (ON LTB)

6. As set out above the Law Society of Upper Canada deals with licencing and prescribes the persons or class of persons that are deemed to not be practicing law, providing legal services or are exempt from By-law 4. In the application before the Board, in the absence of a coherent submission from Mr. P, I am presuming that the Landlord’s Agent believes himself to be exempt from By-law 4 because he is an officer of MAI.

7. An in-house legal services provider is exempt from the bylaw provided “they are an individual who is employed by a single employer that is not a licensee or a licensee firm, provides the legal services only for on behalf of the employer and does not provide any legal services to any person other than the employer”. Mr. P, in my estimation, does not meet the single employer exemption because he routinely appears before the Board for other corporations. However, in the absence of more detailed information respecting the relationship between the various corporate landlords which Mr. P routinely represents at the Board, it is difficult for me to accurately determine whether he is entitled to rely upon the licensing exemption contained in by-law four.

8. In these circumstances and in the absence of any objections or submissions from the Tenant, it would not be unfair to permit Mr. P to represent the Landlord in this matter on ground that he has claimed an exemption from the law society licensing requirements. However, given my concerns about Mr. P’s claimed exemption, this is a matter that the Law Society may wish to consider further

CEL-32403-13-BIR-IN (Re), 2014 CanLII 31000 (ON LTB)

24. Following the hearing held on April 28, 2014, the Court of Appeal issued Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391, in which it found that a person who meets the expanded definition of ‘landlord’ under the Act, ie. a person who is not the owner of the property and is acting as a property manager, is not entitled to self-represent at hearings and must be represented in proceedings before the Landlord and Tenant Board. Moreover, the Court stated, at paragraph 31 of the Order, that “any right of self-representation to be subject to the provisions of the Law Society Act.”

25. The Court of Appeal in paragraphs 28 and 29 of the Law Society of Upper Canada v. Chiarelli stated:

[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.

26. On a balance of probabilities I find that (i) IC is not a licensee; (ii) she is not appearing on her own behalf; and (iii) she is providing legal services to the property owner because she is appearing before the Board to represent the interests of her son, the owner of the property.

27. I find that IC is not entitled to self-represent at the Landlord and Tenant Board hearing and, following Chiarelli, must be represented by someone who is licensed by the Law Society of Upper Canada to provide legal services.

TSCC 2130 v York Bremner Developments Limited, 2016 ONSC 5393 (CanLII)

[281] Therefore Whitestone is liable to pay TSCC 2130 damages of $16,203.57 plus prejudgment interest. It is just and fair to resolve this matter summarily. No further expenditure in a claim for $16,000 is proportionate. Whitestone chose to advance no evidence on the merits and it would be inappropriate for it to attempt to do so now.

Whither the Parking Lot and the False Alarms

TSCC 2130 claims against Whitestone for failing to warn it in the event that its claim concerning the parking garage or for false alarms were time-barred. TSCC 2130 succeeded in its claim for false alarms. I have found that TSCC 2130 had no claim in negligence for the parking garage. I found that its first claim was brought in time on the parking garage except that it did not give the mandatory statutory notice prior to suing and that resulted in the claim being a nullity. Therefore this claim cannot succeed. The premise of this claim is that it applies if TSCC 2130 lost its two claims due to limitation periods. It did not lose either on that basis.

[282] In any event a property manager cannot be liable for not giving advice on limitations periods. TSCC 2130’s expert calls the manager the “eyes and ears” of the corporation and says that it was duty bound to bring problems to the attention of the board. The board knew of both the parking lot and false alarm issues. Mr. Hanna’s evidence is clear on that point. The issue is not whether the board knew about the problems but whether the board had legal advice as to the limitation periods. There is no duty on a property manager to give legal advice. TSCC 2130 could not point to any term of the management agreement or to any case law suggesting the contrary. TSCC 2130 had legal counsel at all material times. Whitestone would have been a violating s. 26.1 of the Law Society Act, R.S.O. 1990, c. L.8, had it provided legal advice without a lawyer’s license.

[283] Accordingly this claim cannot succeed and is dismissed. It is just and fair to resolve this matter summarily. The issues are principally issues of law. There are no disputed facts requiring a trial.

Law Society of Ontario v. Harry Kopyto, 2020 ONSC 35 (CanLII)

[1] This is an application by the Law Society of Ontario (the “Society”) for a permanent injunction under s. 26.3 of the Law Society Act[1] (the “Act”). The Society asks for a court order prohibiting Harry Kopyto from continuing to engage in the unauthorized practice of law and the unauthorized provision of legal services, and from continuing to hold himself out as someone who may practice law or provide legal services in Ontario.

...

[49] Kopyto provided legal services to Mr. Carter. Kopyto’s involvement in the appeal of Mr. Carter’s conviction demonstrates multiple instances in which Kopyto provided legal services to Mr. Carter. These include providing legal advice regarding Mr. Carter’s situation and drafting documents with respect to Mr. Carter’s proceedings in the Ontario Court of Justice.

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[58] Further, because Ms. Paul’s matters were before the Federal Court, Federal Court of Appeal, and Supreme Court of Canada, Kopyto’s services even went beyond those permitted of a licensed paralegal, as paralegals are not permitted to draft documents for use in proceedings before those bodies.[25] There are no other exemptions under the By-Law which, on the evidence before the court, would have permitted Kopyto to have assisted Ms. Paul.

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[78] The Law Society of Ontario’s application for a permanent injunction prohibiting Mr. Kopyto from contravening s. 26.1 of the Act, and in particular:

i. prohibiting Mr. Kopyto, and any business or business entity that he controls, from practicing law or providing legal services in Ontario, contrary to s. 26.1(1) of the Act, and

ii. prohibiting Mr. Kopyto from holding himself out as, or representing himself to be, a person who can practice law or provide legal services in Ontario, contrary to s. 26.1(2) of the Act is granted.