The Ontario Superior Court of Justice has ruled that employees of Ontario’s Office of the Worker Adviser and Office of the Employer Adviser who provide legal services relating to the Occupational Health and Safety Act must be licensed paralegals. The Offices of the Worker and Employer Advisers provide certain legal services under the OHSA to employees and employers in non-union environments.
The ruling comes after the Law Society of Upper Canada applied for a declaration that the Law Society Act applies to employees of the Crown (in right of Ontario) who provide legal services, and that Crown employees who provide legal services to the public respecting employer conduct prohibited by the OHSA are not exempt from the LSA paralegal licensing requirement (Bylaw 4). This includes officers of the worker and employer advisers.
The need for such an application arose after amendments to the OHSA in 2011, when the Offices of the Worker and Employer Advisers started advising on safety-related reprisals. The OHSA amendments aimed to prevent reprisals by employers when a worker sought to enforce the provisions, or gave evidence in a proceeding in respect of the enforcement, of the OHSA. The amendments specified that the functions of the advisory offices include educating, advising and providing representation before the Ontario Labour Relations Board to non-unionized workers who experience reprisals from employers under the OHSA.
Following the OHSA amendments, the Ministry of Labour, on behalf of the advisory offices, applied to the law society for an exemption from the LSA that would encompass any and all future activities that these offices may be mandated to undertake. This would be similar to the existing exemption under the Workplace Safety and Insurance Act that allows the offices to provide legal services to workers or employers regarding workplace safety and insurance matters.
The Ontario Public Service Employees Union (OPSEU)—the union representing the employees of the Crown—opposed the application on the basis of Crown immunity, or alternatively, that the exemption provided by Bylaw 4 applied by extension to include providing advice under the OHSA.
The court disagreed with the union and agreed with the Law Society of Upper Canada as follows.
Though the employees were not bound expressly, they were bound by necessary implication. When using the modern approach to statutory interpretation, the words of the legislation have to be read in their entire context in their grammatical and ordinary sense, harmoniously with the scheme of the legislation, the object of the legislation, and the intention of the legislature. It was clear that the employees were bound by necessary implication when looking at these factors.
The exemption was limited to legal services in relation to the WSIA only. When examining statutory interpretation principles, the phrase, “related proceedings,” could not be interpreted to broaden the scope of the unlicensed provision of legal services. This meant that the exemption did not apply to the employees providing legal advice regarding the OHSA.
Therefore, the court granted the Law Society of Upper Canada’s application. As result, the LSA, as regards the provision of legal services, binds employees of the Crown, including those providing services under the OHSA. The exemption provided by Bylaw 4 applies only to provision of legal services under the WSIA.
The takeaway is that any workers who provide legal services are likely to fall under the authoritative scope of the Law Society of Upper Canada. The exemptions are rare. The obvious benefit of this oversight is that members of the public are protected because most anyone who gives legal advice as part of their work must be trained in the law. It might impose limits on businesses, public services and other organizations, as this case demonstrates, but the court accepted the law as written. The Offices of the Worker Adviser and Employer Adviser will have to make a different case for exemption.