Ineffective assistance by a representative and procedural fairness

Ontario court not prepared to extend inadequate representation as breach of procedural fairness. Plus, open courts and children and the limits on intervention of a tribunal on JR

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Ineffective representation as breach of procedural fairness

Receiving poor representation in criminal proceedings has long been recognized as a ground for an appeal. In the immigration law context, the Federal Court has accepted inadequate representation as a potential breach of procedural fairness (see, for example, Drummond v. Canada (Minister of Citizenship & Immigration), 1996 CanLII 21995). An effort to expand that ground for judicial review to the administrative tribunal setting in Ontario recently failed.

In Ricketts v. Veerisingnam, 2025 ONSC 841, Ms. Ricketts was challenging an eviction order of the Ontario Landlord and Tenant Board (LTB). She is a person with a significant mental health disability. In her judicial review application, she relied on the ground of “ineffective assistance of counsel” — in this case, she was represented by a paralegal.

The dissenting judge in this case, Justice S. Nakatsuru, noted that extraordinary circumstances justified the ground of ineffective assistance of counsel:

[92] To sum up, ineffective assistance of counsel has been entertained in the civil context but is rarely successful. Where a case merely involves economic loss and does not involve vulnerable people or a broader public interest, courts prefer to direct unhappy clients to bring actions against their former lawyers. However, caselaw has emerged in the regulatory, immigration, and child protection contexts demonstrating that courts are more willing to consider claims for ineffective assistance of counsel in those areas because of the interests engaged.

[93] In my opinion, there are two reasons why extraordinary circumstances exist in this case. They are similar in nature and interrelated on the facts: (1) Ms. Ricketts is a vulnerable person as she suffers from a mental disability; and (2) Ms. Ricketts faces the serious consequence of eviction within the context of the regulation of residential tenancies. Both factors are indispensable in permitting this ground to be raised.

Justice Nakatsura rejected the test developed by the Federal Court in immigration and refugee cases and noted that in Ontario, the test used in criminal cases has been used. The test has three components:

1. The underlying facts on which the claim of incompetence is based must be established on a balance of probabilities (the factual component).

2. Incompetent representation must be established (the performance component).

3. The incompetent representation caused a miscarriage of justice (the prejudice component).

The majority decision, delivered by Justice D.L. Corbett, decided that the ground of ineffective assistance could not be raised on judicial review because:

• she did not raise the issue with the LTB at the first opportunity (between the end of the hearing and the release of the decision), and

• she did not raise it with the LTB during the reconsideration proceedings.

Justice Corbett went on to throw cold water on the availability of this ground of judicial review in administrative tribunal settings. He said, in obiter, that “ineffective assistance” is not a basis for interfering with a civil judgment — the remedy for alleged ineffective assistance rests in either civil proceedings against the representative or a complaint to the professional regulator.

[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.

Justice Corbett also stated that it was not appropriate for the court to adjudicate the argument of ineffective assistance “at first instance”. It was the LTB who should first rule on whether ineffective assistance is an argument available in its proceedings. If the LTB found that it was available, it should then establish the test and process to be followed to raise such an argument before the LTB.

Justice Corbett voiced his skepticism about the availability of this ground in tenancy disputes:

[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.

However, Justice Corbett also said that he would not preclude the LTB from considering and deciding a timely argument of ineffective assistance within its process:

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.

Lessons for tribunals

• An allegation of “ineffective assistance” of a representative should be addressed by the tribunal as expeditiously as possible

• If a party does not raise the allegation at the earliest opportunity, they may have waived their right to raise it

• In deciding whether ineffective representation should be considered as a valid procedural fairness argument, a tribunal will need to carefully assess the nature of the proceedings (in particular, the prejudice to the party) as well as the implications of allowing such allegations to be raised

• The Federal Court has a long line of cases where it has considered this allegation in immigration and refugee cases — although the dissenting judge dismissed this jurisprudence, it would appear to be the best available jurisprudence to consider given that it relates to tribunal proceedings and not criminal law proceedings

General observations

This may be another example of hard cases making bad law, or in this case, bad dissents. It is also an example of misdirection. The true issue here is the quality of representation (although I should note that we only have one side of the story). The responsibility for the quality of representation is shared among the representative, the licensing body, and the educational institution. The overall quality of representation before administrative tribunals is also influenced by the high cost of legal representation and the lack of legal aid for most proceedings. Private respondents bear no responsibility at all for the quality of opposing representatives. The use of the ground of ineffective representation punishes the wrong party.

Allowing such a ground in other than the most egregious cases could result in a tsunami of allegations being raised before tribunals. This is in part because the overall quality of representation has been declining for some time (for a variety of reasons). But it is also because of human nature - if I win my case, my representative is “great” but if I lose, it must be because my representative was “ineffective”.

I am also concerned that tribunals are not generally expert in assessing the professional conduct of representatives (other than, of course, professional regulatory tribunals). And assessing whether assistance was effective or ineffective would require the waiving of solicitor-client privilege by the party raising the allegation, as well as testimony (of affidavit) of the now likely former representative. It all seems very complicated.

I certainly understand, and share, Justice Nakatsuru’s frustration with ineffective or incompetent representation. However, the solution likely lies elsewhere.

Open court principle and children

In Kirby v. Woods, 2025 ONCA 437, the Ontario Court of Appeal was addressing a confidentiality order request in a proceeding involving a child and the application of the Hague Convention on the Civil Aspects of International Child Abduction. The child had also been granted refugee status by the Immigration and Refugee Board.

Some of the court’s analysis focuses on family law confidentiality provisions that are not applicable to tribunal proceedings. However, it did provide a good statement of the principles behind confidentiality protections for children.

The court noted that in Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court acknowledged that minors are “especially vulnerable to intrusions of privacy” (para. 92). The court then referred to the reasoning of Justice Abella in A.B. v. Bragg Communications Inc., 2012 SCC 46, at para 17:

Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in the protection of young people’s privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c.1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not on the sensitivity of the particular child … The law attributes the heightened vulnerability based on chronology, not on temperament. [Citations omitted; italics in original.]

In addition, it noted that the privacy interests of children attract a higher level of protection than similarly situated adults (R. v. Jarvis, 2019 SCC 10, at para. 86).

In applying the Sherman Estate test, the court found on the facts before it that confidentiality was warranted:

[27] This case involves serious allegations of violence between the parents and against a child. These allegations are set out in detail in the materials before the court. Deeply intimate and personal details of this child’s views, preferences and experiences are also in the record and summarized in the decision below. The child fears for her physical safety if information identifying her is made public. In my view, this is sufficient to pose a serious risk to the important public interest of protecting a vulnerable child’s sensitive information.

[28] The IRB’s decision finding the child to be a Convention refugee and the IRB file is confidential by virtue of s.166(c) of the IRPA.

[29] Applying the applicable legislation and the principles set out in Sherman Estate, restrictions to protect this child’s privacy and the confidential nature of the IRB file and decision are appropriate. Protecting this information would not prevent the media from attending the court proceeding, reporting on non-identifying, non-confidential aspects of the case, and informing the public about them. It is unnecessary to seal the file in its entirety.

The court set out a detailed confidentiality order, including anonymization of the names of the parties, the child, and members of the child’s family. The case name (“Kirby v. Woods”) was generated through the use of a random name generator: “In this way, the case is anonymized for the protection of the child, whilst the case name remains memorable for purposes of precedent”.

Lessons for tribunals

• Although this decision does not expand the analysis of vulnerability of children, it serves as the most recent Court of Appeal decision on the heightened protection necessary for children’s personal information

• Anonymization decisions usually use initials (real or made-up) but using an online random name generator to “anonymize” is a viable option — although it is not clear from just the style of cause that the decision is in fact anonymized

Intervention by a tribunal on judicial review

Tribunals have always been given limited rights to intervene in judicial review applications. The recent decision of the Ontario Divisional Court in Partap Law Medicine Professional Corporation (formerly Di-Med Services Limited) v. Minister of Health, 2025 ONSC 3351, provides a good overview of the principles that apply when determining whether a tribunal should be allowed to intervene and what the scope of that intervention should be.

The Health Services Appeal and Review Board (“Board”) wanted to intervene in the appeal to make submissions on whether its jurisdiction under s. 24.9(1)2 of the Independent Health Facilities Act, R.S.O. 1990, c. 13 (“Act”), to conduct a hearing to “review a decision” of the Minister of Health contemplates a hearing de novo.

After reviewing the Supreme Court of Canada jurisprudence, the court settles on the factors to apply in balancing the need for fully informed adjudication against the importance of maintaining tribunal impartiality (as set out in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 at para. 59):

(1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.

(2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.

(3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.

The appellant argued that:

• the appeal was opposed by the Minister and the Minister argued that the review hearing was a hearing de novo

• the Minister has the necessary knowledge and expertise to respond to the appellant’s arguments

• the Board hearing is adversarial in nature and not a regulatory, policy-making or investigative hearing. There is therefore a heightened concern about preserving the impartiality of the Board.

The appellant also argued that the principle of finality has become a more significant consideration in determining whether to allow a tribunal to participate given that the Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 directed a “reasons first” approach to judicial review on reasonableness which focuses on “… the decision actually made, including the justifications offered for it”: at paras. 15, 84.

The court stated that it would not be conducting a reasonableness review of the jurisdictional issue but a correctness review, focusing on the conclusion that the court itself would have made in the Board’s place. As a result, it held that the finality and impartiality concerns were muted.

The court agreed that the Board has expertise in respect of its home statute and that the court should have the benefit of the Board’s unique perspective and analysis in determining the proper interpretation of s. s. 24.9(1)2 of the Act.

The court crafted the following order:

[17] Order to go as follows: The Board is granted leave to intervene as a friend of the court on the issue of whether a hearing under s. 24.9(1)2 of the Act is a hearing de novo. It may advance any argument in support of its position on this jurisdictional issue regardless of whether those arguments are found in the Board’s decision. The Board shall file a factum, within 60 days, not to exceed 15 pages and may make oral submissions not to exceed 15 minutes. The Board will neither seek costs nor be subject to costs in these proceedings. There shall be no costs of this motion.

Lessons for tribunals

• the test for intervention might be more relaxed when dealing with “correctness” rather than “reasonableness” reviews

• the expertise of a tribunal related to its home statute will be critical in any request to intervene

Links of interest

ChatGPT and the brain

The brains of people writing an essay with ChatGPT are less engaged than those of people blocked from using any online tools for the task, a study finds. The investigation is part of a broader movement to assess whether artificial intelligence (AI) is making us cognitively lazy.

Computer scientist Nataliya Kosmyna at the MIT Media Lab in Cambridge, Massachusetts, and her colleagues measured brain-wave activity in university students as they wrote essays either using a chatbot or an Internet search tool, or without any Internet at all. Although the main result is unsurprising, some of the study’s findings are more intriguing: for instance, the team saw hints that relying on a chatbot for initial tasks might lead to relatively low levels of brain engagement even when the tool is later taken away.