Paralegal James Moak brought a notice of application in the Ontario Superior Court after years of trying to get the tribunal to deal with the problem.
Moak and others who practise in the area say they have seen many third-party managers draft documents and appear before the board. This is highly problematic, he says, as it means members of the public would have no recourse if these representatives were negligent in their case.
“The problem is that you cannot practise law unless you have a licence, whether as a paralegal or as a lawyer, and that’s not being addressed,” Moak says.
In his application, Moak asked for the court to make determinations and declarations about third-party managers, as he says the LTB has failed to control its own process.
Moak has written to both the Law Society of Ontario and the tribunal to try to push either to look into the issue, but he says he has not seen any resulting action. In a 2014 decision in The Law Society of Upper Canada v. Chiarelli, the Court of Appeal upheld an injunction barring a property manager from appearing before the LTB on behalf of clients because he was not a landlord, lawyer or paralegal.
Despite this decision, paralegals and lawyers say the problem is still pervasive across the province.
And since Chiarelli, Moak has been pushing for action on the issue.
“Something has to happen here because non-licensed people are thumbing their nose at the rules about who may provide legal services and it has to stop,” he says.
Under the Law Society Act, only lawyers and paralegals who have been licensed by the LSO are allowed to provide legal services to the public, except for some who fall under specific exemptions.
Moak says that if the law society is supposed to protect the public, there are thousands of tenants and landlords who are not being protected, and that the law society needs to deal with the issue.
LSO spokeswoman Sue Tonkin would not confirm whether the law society is investigating the issue, as complaints and investigations are kept confidential until they result in a regulatory proceeding.
“When the Law Society becomes aware of an individual who may be practising illegally, we may send the person a ‘cease and desist’ letter, which is often successful.
“If this doesn’t work, we conduct a thorough investigation, which could potentially lead to a court injunction, fine or other more serious consequences,” she says.
Ottawa lawyer Michael Thiele, who practises in the LTB, says that having to deal with unqualified representatives makes cases at the board longer for lawyers. It also means that cases that should settle are drawn out, he says.
Thiele says the LTB has done little to stop real estate agents and property managers from representing third parties for money. This undercuts paralegals, he says.
“If you sit at the Landlord and Tenant Board on any given day, you can find people who are sneaking through the system, often with a nudge-nudge, wink-wink,” Thiele says.
He says the board will only make the enquiry into an individual’s qualifications when the opposing party objects and brings a motion to disqualify them. But other than in those instances, they allow anyone to represent parties, he says.
Thiele adds that the effect of having non-licensed individuals appearing at the board — often on behalf of landlords against tenants — is that the Residential Tenancies Act is being used in ways in which it is not intended to be used.
Donna Mrvaljevic, a spokeswoman for the LTB, says the board asks representatives to include their law society number if they are filing an application on behalf of someone but that the absence of that number does not necessarily mean they do not have standing before the board.
She pointed to an exemption for in-house legal services providers, which, she says, property managers often claim when appearing before the LTB.
Mrvaljevic adds that the definition of a landlord in the Residential Tenancies Act is also very broad and includes the owner of a rental unit or anyone who permits occupancy of a rental unit.
“Thus, unlicensed individuals who satisfy this definition or employees of corporations that satisfy this definition may be permitted to appear at the LTB,” she says.
The LTB receives 80,000 applications each year. Given this high volume of cases, Mrvaljevic says, it is not practical for the board to conduct an inquiry into every unlicensed representative’s claimed exemption.
“However, although not tracked, there have been instances when unlicensed representatives have been refused permission to appear before the LTB,” she says.