Administrative law – Decisions of administrative tribunals – Law Societies – Investigations – Paralegals – Unauthorized practice – Advertising – Disciplinary proceedings – Self-representation – Penalties and suspensions – Judicial review – Compliance with legislation
Law Society of Upper Canada v Chiarelli,  O.J. No. 2328, 2014 ONCA 391, Ontario Court of Appeal, May 14, 2014, RG Juriansz, CW Hourigan and ML Benotto, JJA
Chiarelli was operating a sole proprietorship called “Landlord Services”. He was providing property management services to owners for a flat monthly fee, including appearances before the Landlord and Tenant Board (the “Board”).
In 2007, the Law Society Act, R.S.O. 1990, c. L.8 was amended to provide for paralegals to be regulated by the Law Society. Chiarelli had been operating as a paralegal prior to the change, and so he applied to be licensed as a paralegal under the new regulatory regime. However, when he realized he would be facing a good character hearing, Chiarelli withdrew from the licensing process.
In July 2011, the Law Society investigated Chiarelli following on two complaints about his providing unauthorized legal services. He had been distributing a flyer indicating that he would represent landlords at the Board and provide “free legal advice and consultation”.
During one proceeding, Chiarelli took the position that he was a landlord as defined in the Residential Tenancies Act, and he ultimately argued that since he fit within the definition of landlord, he was acting as a personal representative and was therefore not required to comply with the paralegal licensing regime.
The Law Society applied for a permanent order prohibiting Chiarelli from providing legal services, and its application for a permanent injunction was granted. The application judge rejected the argument that Chiarelli was a personal representative and was therefore a landlord who could self-represent before the Board. On appeal, Chiarelli no longer argued that he qualified as a landlord because he was a personal representative. However, he asserted that he fit within the definition of landlord under the Residential Tenancies Act, and that therefore he could self-represent before the Board.
The evidence clearly established that Chiarelli had been providing unlicensed legal services. He had participated in mediation and attended hearings. The Court noted that the Residential Tenancies Act is silent on the issue of whether a landlord can be self-represented. The only legislation dealing with self-representation is the Law Society Act, which permits self-representation in a limited circumstance where an individual is acting on his or her own behalf. Since Chiarelli was acting on behalf of a client, he could not take advantage of that definition.
All of the obligations and rights flowing from the proceedings before the Board to Chiarelli were as a result of him providing services to the property owner. If he were not representing a client, he would have no interest in those proceedings and no standing to appear before the Board.
A harmonious and purposive interpretation of the Law Society Act and the Residential Tenancies Act led the Court to conclude that there was no intention to create a licensing exemption through the definition of self-representation within the Law Society Act.
However, the Court found that the order made below was overly broad and that the provisions of the injunction prohibited conduct much wider than Chiarelli’s appearances before the Board. Therefore, the injunction had gone beyond the lis between the parties. The injunction was therefore ordered to prohibit Chiarelli from appearing before the Board on behalf of his clients or on behalf of himself, except for situations where he is an owner of the property subject to the Board proceeding.
Some costs were awarded to the Law Society.
A concurring judgment held that an injunctive power should not interfere with an individual liberty any more than required by law. Because the injunction prevented Chiarelli from engaging in the practice of law in Ontario, it should be revised to set out specific conduct that is prohibited in clear and unambiguous terms, in order that it may be enforceable through contempt proceedings. “Specifically worded injunctions foster the interest of judicial economy by foreclosing disputes about the ambit of the order in subsequent contempt proceedings.”
The concurring judge would permit Chiarelli to appear before the Board in person in cases in which the Board found that he was a landlord within section 2(1) of the Residential Tenancies Act, in addition to those cases where he was the property owner.
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