Although this case stems from a tribunal case, it has implications in Superior Court as well: and perhaps most notably in Small Claims Court where it is commonplace for friends and family members to represent parties.
In this bizarre case a wife sought to set aside a tribunal’s decision based on the allegation that the tribunal erred in allowing the hearing to proceed with her husband as her legal representative. Put another way, despite sending her husband to fight for her at the hearing, the wife was asserting that the tribunal should have come to their own senses and prevented the husband from representing her on the basis that it was plain and obvious that he was too incompetent to represent her properly.
This issue had to be decided by the Divisional Court on judicial review, and they decided against the wife.
Although the court agreed that the tribunal had the power to exclude the husband under section 23(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which specifically permits the tribunal to exclude any non-licenced representative “if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser,” the Divisional Court concluded that this was discretionary, and there was no duty on the tribunal to interrogate the competency of the husband.
After reviewing cases dealing with paralegals representing defendants in criminal cases, the Divisional Court concluded that “even in the criminal context, there is no obligation to inquire into the competence of the representative.” The court then cited the following passage from R. v. Romanowicz, at paras. 45 and 48:
“…Judges cannot become regulators and restrict the appearance of agents on a case-by-case basis based on their personal assessment of the competence of each agent. …
In our opinion, it would be inconsistent with the right of accused persons to choose their mode of representation if courts were obligated to scrutinize those choices and veto them if it were concluded that the chosen representative was not up to the task. The emphasis must be on the accused’s right to choose and not on the merits of that choice. [Emphasis added.]”
The court was satisfied that despite the obvious incompetence of the husband (ie: citing irrelevant law, making nonsensical submissions, etc), his participation was always understood to fall under the “friends and family” exception to legal representation and the tribunal would be aware not to expect the competency of trained legal professional. The court pointed out that “even in the criminal context, an accused who chooses to be represented by an agent who is not a lawyer ‘cannot be heard to contend that the agent’s performance should be tested against the standard reserved to counsel trained in the law’”: R. v. Romanowicz, at para. 29; Savic v. The College of Physicians and Surgeons, 2022 ONSC 303 (Div. Ct.), at para. 66.
Put another way, even if the husband’s questioning or submissions were a little off, that is what would be expected by the tribunal – and not as a trigger for them to exclude the husband.
One interesting point is that at the end of the decision the court was critical of the wife for not putting forth any evidence about what other “course of action would have been followed” and how it would have led to a “different result.” This clearly isn’t an issue for the tribunal or presiding judge because this cannot form the subject matter of any enquiry. For example, no tribunal (or judge) could get a cogent answer to this line of enquiry. For example, in this instance was the wife going to tell the tribunal that if her husband was turned away, she would lead with different evidence, cross examine differently, and rely on different legal arguments, all of which will change the outcome? Of course not. But if you find yourself in a situation where you are trying to make the same argument, you should lead with some evidence on how the hearing and the outcome would be different, on the off chance the court is satisfied that you were denied natural justice and a reversal is required.
The bottom line is select your unlicenced representatives wisely: the chances of getting an adverse ruling set aside on the grounds you made a bad choice is slim. As pointed out by the court in this decision, “the real complaint” is that a bad choice was made “with the benefit of hindsight,” and the court will likely not lend a hand.
Kilislian v. Peterborough Public Health, 2022 ONSC 2385 (CanLII)
https://www.canlii.org/en/on/onscdc/doc/2022/2022onsc2385/2022onsc2385.html