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Review (Appeal-JR) - Grounds - Ineffective Assistance of Counsel (5). Ricketts v. Veerisingnam
In Ricketts v. Veerisingnam (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 administrative appeal, here where the main issue was how the RTA system should consider a party's argument of 'ineffective assistance of counsel' (IAC) - which is typically (though not always) advanced as a criminal defence.Note: This three-ruling RTA s.210 appeal needs some sorting out. The dissenting judge (Nakatsuru J at paras 85-106) would have allowed the appeal on the appeal-argued 'ineffective assistance of counsel' (IAC) grounds, while the two ruling judges (Newton J at para 1, and Corbett J at para 4) dismissed the appeal essentially on the basis of it's late raising [para 4]:"I would find that the Appellant/Applicant (hereinafter the “Appellant”) may not raise the “ineffective assistance” in this court because (i) she failed to raise it at first instance before the LTB when she had about ten weeks to do so between the end of the hearing and the release of the LTB’s decision; and (ii) she failed to raise it before the LTB during Reconsideration proceedings." The important point to me is that all judges would consider the IAC argument, only with varying degrees of preliminary LTB procedural requirements. ***********************
These quotes are from Corbett J:[3] My colleague [SS: Nakatsuru J, dissenting] would find that the Appellant/Applicant’s paralegal failed to advance an argument that the Respondents’ eviction notice was made not in good faith, that this failure was “ineffective assistance” of a legal representative, that such an argument should be given effect on an appeal from the Landlord and Tenant Board, and thus that the proceedings should be returned to the LTB for a new hearing on the merits.
[4] I would find that the Appellant/Applicant (hereinafter the “Appellant”) may not raise the “ineffective assistance” in this court because (i) she failed to raise it at first instance before the LTB when she had about ten weeks to do so between the end of the hearing and the release of the LTB’s decision; and (ii) she failed to raise it before the LTB during Reconsideration proceedings. Had I concluded that the Appellant should be permitted to raise this issue for the first time in this court, I would have dismissed the appeal because “ineffective assistance” is not a basis for interfering with a civil judgment: the Appellant’s remedy for alleged ineffective assistance lies in civil proceedings against her representative and/or a complaint to his professional regulator, and not a setting aside of a decision that discloses no reversible error on the basis of the evidence and arguments made below.
[5] Had I concluded that it was arguable that “ineffective assistance” could be a basis for interfering with the result below, I would not see this court adjudicate the “ineffective assistance” argument at first instance, but rather, I would quash the LTB’s Reconsideration decision and direct that the Reconsideration process be run anew, with the Appellant able to raise the “ineffective assistance” argument there. In my view the LTB, and not this court, should (i) rule on whether ineffective assistance is available in proceedings before the LTB; and (ii) if the answer to (i) is yes, establish the test(s) and process(es) to be followed to raise such arguments before the LTB.
[6] With respect, the penumbra of a new principle – or the application of an established principle in a new context – can be much wider than the facts of the specific case that give it rise. I appreciate that security of tenure for residential tenants is an interest of greater social significance than may be reflected in the dollar value of the underlying dispute. However, residential tenancy disputes arise in real time, in a real context, and there are important interests of both landlords and tenants that require a conflict resolution process that is reasonably fast, efficient, and inexpensive. Proceedings before the LTB often involved parties who are represented by non-licensed agents, friends, family members, and many parties who self-represent. Why should these persons have less entitlement than those who have retained licensed professionals to a “do over” when their representatives fail to do a good job, or they themselves fail to approach their own case in the most effective way?
[7] Unlike in the criminal context, in civil proceedings the other side has an important interest in the principles that (i) parties are responsible for the manner in which their own case is presented; and (ii) decisions reached after following the prescribed process should have final effect. Here, on the facts as my colleague would find them, the Appellant’s representative failed to advance an argument of importance to the Appellant. The Appellant should have recourse against her paralegal to pursue a claim, but that is between the Appellant and her paralegal. From the perspective of the Respondents, they served a valid notice to evict in the fall of 2022. Because of delays at the LTB, the hearing into their request was not completed until October 2023, and the decision not rendered until January 2024. As a consequence of this appeal, they have been delayed a further year before an appeal hearing, and the time in which this decision was under reserve. Now, through no fault of the Respondents, my colleague would find that they must go back to the beginning of the process. I see no reason why the Respondents should bear the loss occasioned by the Appellants’ paralegal’s failure to advance an argument at the original hearing. That loss should fall on the Appellants, and they may decide whether to seek recourse for it against their paralegal.
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Ineffective Assistance in Civil Proceedings
[44] In civil proceedings, parties are expected to take the steps necessary to prepare and present their cases. They are expected to bring all their evidence and make all their arguments. They are not entitled to reopen the evidence or make additional argument after the proceedings are concluded other than in exceptional circumstances. Once evidence and arguments are complete, the tribunal decides the issues and the dispute is decided. The process can be long, complicated and expensive, but once it is finished and a decision is rendered, the dispute is at an end. This principle – finality – is a core principle of the civil justice system: Peoples Trust Company v. Atas, 2018 OSCJ 58, aff’d 2019 ONCA 359, leave to app. to SCC denied 2020 CanLII 29393 (SCC).
[45] Reversing a tribunal decision because of ineffective assistance of counsel offends the principle of finality. It deprives the successful party of a decision to which it is entitled on the merits presented. It delays the time in which the parties may put the dispute behind them and move on.
[46] In the criminal justice system, the courts have recognized a ground of appeal of ineffective assistance of counsel. It is raised far more often than it succeeds. When it succeeds, the principle of finality is offended, but in the interests of guarding against convicting an innocent person. The other side – the Crown – can bear the cost of such a reversal. This principle has been extended to some other contexts – immigration and child protection proceedings – in which, by analogy to criminal cases, very important interests are at stake, state or quasi-state actors are the adverse parties, and it has been concluded that the offence to the finality principle is merited in the interests of guarding against an unjust result.
[47] So far as I am aware, this would be the first case in which an Ontario court extended the defence of ineffective assistance to a purely private dispute, between private actors, over property and pecuniary interests. I would not extend the principle as a defence at first instance in this court. The offence to finality is simply too great. The delay in this case has already been terribly unjust to the Respondents. Any injustice to the Appellant is a matter she may pursue against her paralegal; I would not impose the cost of remedying any injustice that has resulted on the Respondent, who is not in any way responsible for it. As held by the Court of Appeal in Sabaratnam v. Yohanathan, 2024 ONCA 845, para. 8:... even accepting that there was ineffective assistance, that contention does not go to the issue whether summary judgement was properly granted. Rather, the principles described by this court in OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, at paras. 44, are applicable in this case. In Oz, this court wrote that allegations of ineffective assistance of counsel at trial in civil matters are properly raised by way of a negligence action by the client against the lawyer. Although there may be some cases in which the nature of the claim gives rise to a public interest that transcends the private interests of the litigants and allows for ineffective assistance of counsel as a ground of appeal, this is clearly not such a case. [48] This said, I would not preclude the LTB from considering and deciding a timely argument of ineffective assistance within the LTB process. In the case at bar, if, on Reconsideration, this issue had been referred back to the original adjudicator promptly, they could have determined whether the argument could have had a bearing on the result and, if so, they could have reopened the hearing process without doing everything over again, on an appropriately expedited schedule. All of this could have been done within a matter of a few weeks from the date of the original decision, greatly attenuating the prejudice to the Respondent of providing a remedy to the Appellant for the ineffective assistance of her own representative. It would be in this context that it would be for the LTB to decide whether a request for Reconsideration should be entertained on the basis of ineffective assistance at the original hearing, bearing in mind applicable appellate authority and the institutional context of LTB proceedings. Nothing in my reasons should be taken to direct how such an issue ought to be decided on Reconsideration – rather, it is to say that the LTB would not be precluded from considering and deciding such an argument.
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