Is Lawyer Representation Mandatory: Small Claims v. Superior Court v. HRTO and OLRB?

For businesses embroiled in legal disputes in Ontario, understanding the fundamental differences between the Small Claims Court and the Superior Court of Justice is crucial. The choice of venue not only depends on the monetary value of the claim but also dictates the complexity, cost, and even the rules of representation for a company. We will also touch upon some popular administrative tribunals such as Human Rights Tribunal of Ontario (HRTO) and Ontario Labour Relations Board (OLRB).

A critical difference for incorporated businesses lies in the rules governing who can represent the company in court.

Small Claims Court

In the Small Claims Court, a company is permitted to represent itself without needing special permission from a judge. 

The Small Claims Court is designed for accessibility and streamlined processes. The authority for a corporation to represent itself without a lawyer is enshrined in its governing statute, the Courts of Justice Act, R.S.O. 1990, c. C.43.

The key provision is Section 26 (1) of the Act, which reads:

26 (1) A party to a proceeding in the Small Claims Court may appear and be represented in court by a lawyer or by a person who is not a lawyer.

As a corporation is considered a legal "person" and therefore a "party" to the proceeding, this section statutorily permits an officer, director, or an employee to represent the company in Small Claims Court matters. This approach aligns with the court's objective to provide a more efficient and less costly forum for resolving disputes, eliminating the mandatory requirement for corporations to hire legal counsel for claims up to the court's monetary limit of $35,000. No special leave or permission from a judge is required for a company to self-represent in this court.

Superior Court

Conversely, in the Superior Court of Justice, a corporation must be represented by a lawyer unless it obtains "leave" (permission) from a judge. 

The default position is that a corporation cannot represent itself. This is explicitly mandated by Rule 15.01 (2) of the Ontario Rules of Civil Procedure.

The rule states:

15.01 (2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court.

This means that for a company to have an officer, director, or any other non-lawyer act on its behalf in the Superior Court, it must first bring a formal motion to a judge and be granted special permission, or "leave." The judge will consider various factors, such as the nature of the case, the proposed representative's ability to handle the legal complexities, and whether granting leave would be in the interests of justice. Obtaining such leave is not guaranteed and is generally granted in specific and limited circumstances.

This stark contrast in representation rules underscores the Small Claims Court's role as a more accessible forum for businesses to resolve smaller disputes efficiently and cost-effectively. For more substantial and complex legal battles, the Superior Court of Justice, with its formal procedures and requirement for legal representation, remains the appropriate venue.

Administrative Tribunals (HRTO, OLRB)

Neither the Ontario Labour Relations Board (OLRB) nor the Human Rights Tribunal of Ontario (HRTO) requires you to have a lawyer.

You have the right to represent yourself or to choose a non-lawyer representative, such as a paralegal, a union representative, or a consultant. These administrative tribunals are designed to be more accessible to the public than formal courts.

The foundational rule is found in Section 10 of the Statutory Powers Procedure Act (SPPA), which governs the procedures for most provincial tribunals, including the OLRB and HRTO.

• Section 10 states: "A party to a proceeding may be represented by counsel or by an agent."

In this context, "counsel" means a lawyer, while "agent" is a broad term for any person a party chooses to represent them, which can include the party themselves.

Tribunal-Specific Rules

Both the HRTO and OLRB confirm this right in their own Rules of Procedure:

• Human Rights Tribunal of Ontario (HRTO): Rule A9 of the HRTO's Rules of Procedure defines who can be a representative. It specifies that a representative can be a lawyer, a paralegal, or "another person" (unless they are being paid, in which case they must be licensed by the Law Society of Ontario). This rule implicitly confirms the right of a party to act for themselves or choose a representative.

  
  

• Ontario Labour Relations Board (OLRB): Rule 1.6 of the OLRB's Rules of Procedure is very direct. It states: "party" includes a person named in an application, a person asking to participate in a case, or a person added as a party by the Board, but does not include a person who the Board has decided is not a party; "person" includes a partnership, company, employer, employers' organization, trade union and council of trade unions.

Final Words:

Ontario's justice system offers distinct venues for disputes. Small Claims Court is a simplified forum for monetary claims up to $35,000, where companies can easily represent themselves. It's designed to be fast and accessible.

The Superior Court of Justice handles serious, complex cases with no monetary limit, such as major commercial disputes or class actions. Its formal procedures almost always require corporations to have a lawyer.

Administrative Tribunals like the HRTO or OLRB are specialized bodies that resolve specific disputes, such as human rights or labour issues. They are less formal than courts, and parties (including companies) can represent themselves or choose an agent, like a paralegal, instead of a lawyer.

Whether you are an employer or an employee, you may want to consult with an experienced employment law firm, such as HTW Law, to learn about your employment law rights and obligations and your legal options.

With the right legal support, employees and employers alike can navigate the complex employment law issues towards a more equitable and respectful work environment. 

You don't have to fight the battle alone. Speaking with an employment lawyer who is familiar with the laws and regulations regarding the different facets of employment law such as workplace harassment, disability discrimination, wrongful dismissal, constructive dismissal , employment contract will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.

Click here to contact HTW Law - Employment Lawyer for assistance and legal consultation.