Are Paralegals Officers of the Court?

The recent decision of Justice Fuerst in R v. Lippa has the controversy over the standing of paralegals raging again in Ontario. The decision relates to whether judicial officers have the discretion over which legal professionals will sit in the courtroom, and the order of cases which will be called.

In deciding that paralegals can be treated differently within the court system, Justice Fuerst made some interesting comments. She states at para. 18,

s. 29 of the Law Society Act provides that every person who is licensed to practise law in Ontario as a barrister and solicitor is an officer of every court of record in Ontario. Black’s Law Dictionary, 8th ed., defines “officer of the court” as “A person who is charged with upholding the law and administering the judicial system.” Licensed paralegals are not included in s. 29.

The section in the Act, which was last amended in 2006, states,

Officers of the courts

29. Every person who is licensed to practise law in Ontario as a barrister and solicitor is an officer of every court of record in Ontario. 2006, c. 21, Sched. C, s. 26.

Normally the expressio unius maxim would hold, as Justice Fuerst indicates, that the absence of paralegals from this section means they are not in fact officers of the court. But from at least April 2008, when paralegal licenses were first issued in Ontario, paralegals have commonly referred to themselves as such.

Paul Calarco describes the development of this concept in the 2007 paper presented at LSUC, “NOT IN MY COURT YOU DON’T!! The Right of Audience and the Enforcement of Ethical Conduct,”

In England the origins of the defence bar have been lost in time. Prior to C. E. 1200 there is no indication of a professional body of people who acted as lawyers. However, under the expansion of the common law rules in the era of Henry III and the legislation of Edward I, it became clear that people not skilled in the law could not hope to represent any other person.

As well, as pointed out by Professor Ogilvie, procedure was becoming more technical. In the first part of the thirteenth century, a group of what we would now call barristers was developing. By the end of the 13th century, it appears that lawyers were well established as part of the King’s courts. They were regarded as officers of the court. [citations omitted]

An officer of the court has a duty, as part of their profession, to promote justice and the effective operation of the justice system. However, barristers and solicitors are not the only officers of the court described in Canadian legislation.

The Supreme Court Act refers to several court support staff as officers, all of whom are necessary for the proper functioning of the Court. Although the Registrar of the Supreme Court and Deputy Registrar are both described in s. 12 as “barristers or advocates,” there are other officers, such as the Sheriff of the County of Carleton in s. 21 who clearly are not. The Act enumerates in s. 24 a lengthy list of officers,

Officers of the Court

24. All persons who may practise as barristers, advocates, counsel, attorneys, solicitors or proctors in the Court are officers of the Court.

But the Supreme Court is a statutory court. Calarco notes that determining the right of appearance are part of the discretionary powers of courts with inherent jurisdiction.

Section 800 of the Criminal Code allows an accused to appear on summary conviction personally or by an agent, which can include friends, relatives or interpreters. The responsibility placed on these agents was described by Justice Wein in R. v. Lemonides, [1997] O.J. No. 3562, as follows,

79 All agents should expect to be in a position to satisfy the Court that the defendant has been advised of the agent’s status, and it should be clear on the record that the client waives their right to counsel and understands the significance of appearing without a lawyer. All agents should be aware that they will be expected by the Court to act as officers of the Court, that is in an ethical and competent manner. [emphasis added]

In other words, when non-licensees act as agents they are also required to act as officers of the court (even if they may not actually be officers, as suggested by Justice Hill in R. v. Romanowic at para. 40; but note this is the context of being an unlicensed agent). To suggest that a licensee acting in the same capacity in Ontario is not also acting as an officer of the court simply does not follow.

The in pari materia maxim of statutory interpretation, looking at other statutes in Canada, would suggest that an expansive definition is provided to officers of the court throughout our judicial system. The title denotes more of a responsibility to the court system than any proffered right, such as appearing before the bar. Interpretation and use of the term by courts also suggests a broad and liberal meaning.

Justice Green of the Supreme Court of Newfoundland and Labrador referred to the Adult Corrections Act in NLAPPE v. Newfoundland (Minister of Justice) to indicate that probation officers had a right to strike, but were obligated as officers of the court to continue to perform duties lawfully required of them by the court.

Justice Garson of the Supreme Court of British Columbia considered the admissibility of a court monitor’s report and the compellability of a monitor as an expert witness in Pine Valley Mining Corporation (Re), and cited Janis Sarra in “Rescue!: The Companies’ Creditors Arrangement Act,”

As an officer of the court, the monitor has been found not to be compellable to give evidence in a proceeding, although the monitor reports to the court on a regular basis. The monitor’s reports have been found to be “not evidence” and hence not generally subject to cross-examination; rather, as an officer of the court, the monitor is to act “lawfully, fairly and honourably”. In Ontario, the court has held that insolvency officers will not generally be subject to cross-examination of their reports, while acknowledging that these court-appointed officers do occasionally make themselves available for examination in the spirit of co-operation and common sense. [emphasis added]

Similar comments can be found by Justice Farley of the Ontario Superior Court of Justice in the Commercial List case of Bell Canada International Inc., Re

Perhaps the most expansive comments on this topic recently would be by Justice Himel in Page (Trustee of), where she considers whether persons who accept appointments as a trustee in bankruptcy or a receiver is an officer of a court, and therefore exempt from jury duty under the Juries Act. Justice Himel provides a comprehensive review of case law of various positions and titles which are included as officers of the court, even where they are not explicitly stated as such by legislation. She also refers to Black’s Law Dictionary (though an earlier edition than Justice Fuerst), cites the Courts of Justice Act and Public Service Actand provides several maxims of statutory interpretation.

Justice Himel concludes trustees in bankruptcy and receivers are officers of a court of justice, but her analysis in Page doesn’t resolve the issue entirely. Her interpretation of the Juries Act is largely based on the language in s. 3(1) of the Act, which states,

Ineligible occupations

3. (1) The following persons are ineligible to serve as jurors:

6. Every person engaged in the enforcement of law including, without restricting the generality of the foregoing, sheriffs, wardens of any penitentiary, superintendents, jailers or keepers of prisons, correctional institutions or lockups, sheriff’s officers, police officers, firefighters who are regularly employed by a fire department for the purposes of subsection 41 (1) of the Fire Protection and Prevention Act, 1997, and officers of a court of justice. R.S.O. 1990, c. J.3s. 3 (1); 1994, c. 27, s. 48 (1); 1997, c. 4, s. 82. [emphasis added]

This specific wording would prevent any application of expressio unius or ejusdem generis (both of which can be applied to lists) to the Juries Act, and no such expansive language can be found in the Law Society Act.

We could assume the absurd interpretation that paralegals in Ontario are officers of the court for the purposes of being excluded from juries, but not for the purposes of actually operating within the court system. But the noscitur a sociis maxim of interpretation may be of assistance in looking elsewhere in the Law Society Act specifically in order to provide broader context.

The 2006 amendments to the Law Society Act created the Paralegal Standing Committee, which in turn led to the changes which created paralegal licensing in 2007. The Paralegal Standing Committee, created in s. 25.1 of the Act, is also responsible for creating the by-laws for paralegal regulation. Subsection 25.1(10) of the Act also confers quite a bit of discretionary power to the Committee as follows,

Delegation of powers to committee or referee or both

(10) Convocation may delegate any of the powers conferred upon it by this section to a committee of Convocation and, whether or not Convocation has made any such delegation, it may appoint any licensee as a referee and delegate to the licensee any of the powers conferred upon it by this section that are not delegated to a committee. R.S.O. 1990, c. L.8, s. 51 (10); 2006, c. 21, Sched. C, s. 71 (7). [emphasis added]

The Committee was specifically responsible for and instituted the Paralegal Rules of Conduct. Rule 3.04(1) discusses personal interests and how to deal with conflicts of interests which may arise from personal relationships, and states,

Whether such a relationship may interfere with the paralegal’s fiduciary obligations to the client, including his or her ability to exercise independent professional judgment and his or her ability to fulfill obligations owed as an officer of the court and to the administration of justice. [emphasis added]

The implications of not recognizing paralegals of officers of the court is to disregard the ethical obligations they owe to the court. Ensuring that paralegals are officers of the court benefits the public interest and the entire judicial system, because it indicates they have a broader duty and professional responsibility to the law.

Calarco points out the close relationship between the right of appearance as officers of the court and enforcement of ethical conduct. When appearance is denied, the purpose is not necessarily punishment, but rather promotion of the proper administration of justice.

Without the possibility of discipline there is little ability by the legal system to address unethical conduct of licensees. Courts also have their own ability to enact discipline against officers of the court. The Ontario Court of Appeal stated in R. v. Elliott, [2003] O.J. No. 4694,

144 The power of a superior court to cite a person for contempt of court is a very important power but it is to be used with restraint. It is a serious matter to threaten anyone, let alone an officer of the court, with contempt of court…

Although the Law Society Act may not explicitly identify paralegals under s. 29, this should not be taken as an exhaustive list, especially since these amendments occurred before paralegals were officially licensed. As we’ve seen, there are many other officers of the court within the judicial system.

This section in the Law Society Act could not have envisioned or foreseen the prospective developments of the Paralegal Standing Committee, and the intent of the statute could not reasonably be construed as binding their authority to define and regulate the new legal profession which was being contemplated in Ontario at the time.

The same Act used by Justice Fuerst also provides broad discretion under s. 25.1 to the Paralegal Standing Committee, which has seen it fit to refer to paralegals as officers of the court in at least once instance. Conferring this status does not necessarily change the decision of Justice Fuerst about the order in which cases are called, which is based in law in the Barristers Act and the inherent jurisdiction of superior courts, but it does have some significance.

One final thought can be derived from a small footnote in a 2006 decision by Master MacLeod in Iroquois Falls Power Corp. v. Jacobs Canada Inc.where he discusses the roles of the court and the Law Society in governing the conduct of lawyers,

Whatever historical differences may have existed between the roles of barrister and solicitor no longer apply under Ontario law. s. 29 of the Law Society Act provides that every “member” is an officer of every court of record in Ontario and s. 28 provides that a person who is qualified and is called to the bar and enrolled and admitted as a solicitor “are members and entitled to practice law in Ontario as barristers and solicitors”.

Similarly, whatever historical differences may have existed between the roles of lawyers and paralegals no longer apply in Ontario as it relates to their status as officers of the court, despite differences in scope of practice. As “licensees,” paralegals are just as responsible to the Law Society for their license as lawyers are, and are just as answerable to the court as its officers.

Ensuring this duty exists for all licensed agents working within our court system for the courts that they work in can only be a good thing for other licensees, the judicial system as a whole, and the public.

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Comments

  1. Thanks for the analysis, Omar.

    While s.29 of the LSA may exclude paralegals from being an officer of EVERY court of record in Ontario, I think that the window is certainly open to paralegals being recognized as officers of SOME courts (those within which they are licensed to act). Clearly, there is a lot of legislation that needs changing for this to be confirmed.

  2. Who recalls the days when QCs had priorities?

    From R v. Lippa:

    “[5] On June 10, 2010, Ms. Lippa appeared in a Newmarket courtroom as agent for counsel on two criminal cases. The presiding Justice of the Peace “reminded” her that agents were to remain behind the bar until their cases were called. The Justice of the Peace said that the area in front of the bar was reserved for lawyers and law students. The Justice of the Peace cited “the Law Society’s protocol” and “safety reasons”, and referred to it as a tradition that had existed for hundreds of years. The Justice of the Peace also referred to the Crown having an opportunity to call matters in order of protocol by “elder counsel” first.”

    . . .

    “[42] It may well be that a “first come, first served” approach to the calling of cases, applicable to all those who attend as legal professionals, whether as counsel, paralegal, or articling student, is efficient, and avoids conveying the unintended impression that some legal professionals are deserving of greater respect from judicial officers than others. It may well be that some uniformity of procedure can be achieved, at least in courtrooms within a geographic area. Whatever the procedure in any particular courthouse or courtroom, if information about the procedure were posted in a public area and available to all in attendance, it might provide sufficient explanation of the process and the rationale for it to avoid applications of this kind.”

    Plus ça change

    I’d quote Santayana but that, too, would be pointless.

    I’d prefer to quote Shakespeare, but I won’t.

    I’ll simply mention ducks and quacking.

  3. So long as I’m talking to myself –

    The irony in the application – I doubt that Justice Fuerst missed it – is that the those opposed to paralegals didn’t make their best argument: once based on the cost component of access to justice.

    It would go something like this. Access to justice is advanced by reducing the cost. Lawyers usually charge more than paralegals. More experienced lawyers usually charge more than less experienced. So, on an access to justice rationale, the more expensive representatives – be they lawyers, students, or paralegals – should be heard first to minimize the cost to the client.

    Drum roll, please.

  4. A lawyer commenting in the legal press made this argument – better to let the $500/hour lawyer get out quickly than the $500/day paralegal. OTOH maybe there’s a better way to schedule motions than have everyone with a motion show up at once at wait however long turns out to be necessary. Being a prisoner of other people’s work – or of their articulateness – is not a productive way to spend one’s time, however much one may bill for it.

  5. I’m not surprised others have seen it. I wonder how many think it’s a valid argument?

    In any event, most motions – perhaps all on the civil side except those that could result in incarceration – should be in writing unless the court determines otherwise. This would include arguments about the date for a motion. Also, many motions are boilerplate, in any event. That will eliminate the waiting time. It would also eliminate the instances where the moving party’s agent doesn’t adequately know what’s in the material that the judge got too late to review in advance.

  6. Couldn’t agree more about motions in writing, David. The Federal Court does a fantastic job of dealing with motions in writing, leading to significant gains in effeciency. Not to mention, it is much less frightening for may lay litigants to write down their argument rather than stand in front of a busy chambers to recite it.

  7. Awesome article Omar … very well rounded summary of the points at hand. Worth printing and keeping with me as reference for the next time this comes up in court …as it does from time to time.

    Still not sure what the upshot of all that is. Sooooo we are NOT officers of the court … we are sometimes or we are just in some ways?

  8. Ian,
    Nobody really knows. The above piece just suggests that Justice Fuerst’s analysis was incomplete. My opinion is that the only logical conclusion is that at the very least paralegals are officers of the courts in which they practice, as Marc emphasizes above.
    What most of us would readily concede is that the legislation needs to be updated to reflect the fact that we have different licensees in our system now.

  9. Omar,

    Intentionally incomplete but sufficient for the purpose.

    I think, having decided to dismiss the application, Justice Fuerst chose an adequate analysis which said nothing that could be problematic if the issue is argued, again, on a better record. After all, we’re dealing with legislation, and legislation tends to have a … legislative history. Which tends to be kept in the … legislature’s library. Etc.

    David

  10. I agree with David. The points in issue before Justice Fuerst were whether paralegals had a right to sit before the bar and to be heard in order of the motions list, or of presence in the courtroom. Justice Fuest held that the presiding judicial officer had the authority to decide both questions, and the decisions made did not go beyond that authority.

    It was not necessary to decide whether paralegals were ‘officers of the court’ – ruling either way would not have affected the rulings on the two points of practical importance at the time.

    It is certainly arguable that the Barristers Act giving precedence to QCs (and AGs) should be amended – though Ontario-appointed QCs may now be sufficiently aged that maybe they are entitled to preference due to frailty? [joke...] But getting legislation on such a narrow procedural point like that is a challenge even for a government that controls the Legislature (to the extent that any government does so) and even if the solution were obvious, and is not likely in a minority and where there is no consensus on the right answer.

  11. John,
    Your comments actually agree with my analysis. It was not necessary for Justice Fuerst to enter into the analysis of whether paralegals are officer of the court. As I note, the issue of precedence and sitting beyond the bar has an entirely different basis.
    I also agree that legislative change at this point in time on this specific issue is unlikely. But I also don’t think it’s entirely necessary, even in looking at legislative intent of the current Act, in order to come to the conclusion that I set out above.

  12. Omar, as a paralegal candidate, I found your article not only informative but very fair and balanced. I would agree with your analysis, particularly that it was quite unnecessary for Justice Fuerst’s to venture into that issue. However, perhaps it that it is now being discussed. If not, misconception would still exist. Still, I do not think paralegals held themselves out to be officers of the court but rather they were told they were; Rule 3.04 certainly would given anyone that impression.

    As a matter of historical record, it is also worth reading the Hansard records with respect to the Access to Justice Act. On the matter of s.29, the Late Mr. Kormos argued, in effect, that it was foolish not to include paralegals within the scope of that provision.

    To that end, I would argue that amending s.29 in such a manner that would be more inclusive is long overdue to remove both the uncertainty and the perception of discrimination that still permeates throughout the profession.

    Great article.