Property manager appeals injunction against appearing as landlord’s paid representative

A property manager was back in court last week to appeal a January injunction barring him from appearing before the Ontario Landlord and Tenant Board because he’s not a landlord, lawyer or paralegal.

In the injunction, Superior Court Justice Robert Goldstein found Enzo Chiarelli would need a licence from the Law Society of Upper Canada in order to appear before the board.

But last Tuesday, Joseph Kary, counsel for Chiarelli, told the court his client meets the definition of a landlord under Ontario legislation and could therefore represent himself under the law society rules.

“Before you can make a finding of whether or not somebody is a landlord, you have to make some inquiry into the nature of the relationship [to the property],” Kary told a panel of judges at the Ontario Court of Appeal. He suggested that before dismissing Chiarelli’s application, the lower court and the board had skipped this step.

Chiarelli is wholly responsible for managing the property, Kary added, arguing his client should have the rights normally granted to landlords.

To refuse Chiarelli the right to appear before the board is to create “a second-class landlord,” Kary suggested. In fact, if the Superior Court’s decision stands, it means tenants can sue a traditional landlord but not a property manager, he added. He likened the scenario to telling a taxi driver who’s renting his cab that he’s unable to collect fares.

But LSUC counsel Simon Bieber told the court that whether or not Chiarelli fits the definition of a landlord is irrelevant. Under law society rules, a self-represented litigant doesn’t take instructions from someone else, he said.

“The fact that Mr. Chiarelli might as well be a landlord does not really matter,” he said.

“He can’t use that definition to work around the licensing requirements,” he added.

Since the landlord pays Chiarelli to manage the property and appearing before the court is part of his duties, he’s essentially providing legal services for pay, according to the law society counsel who told the court the issue in the case is a novel one.

Goldstein made conclusions along the same lines in January. “When the respondent appears before the board as a paid representative, he provides legal services in violation of the Law Society Act,” he wrote in The Law Society of Upper Canada v. Chiarelli on Jan. 15, 2013.

According to Kary, Chiarelli generally hires paralegals to appear before the board. If he appears alone, he noted, it’s because his paralegal can’t attend. The pay for the paralegal is at times part of Chiarelli’s overhead fee and other times requires additional payment, said Kary.

Kary noted his client isn’t asking for a formula that would allow anyone to appear before the board and claim to have standing.

“The issue here isn’t that anybody can call themselves a landlord and show up before the board,” said Kary, adding that a decision to allow property managers like Chiarelli to do so would be “a limited exemption.”

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