10th Anniversary of Paralegal Regulation

Tomorrow will mark the 10-year anniversary of paralegal regulation in Ontario. The Access to Justice Act, which included amendments to the Law Society Act, received Royal Assent on May 1, 2007.

As of that date, the Law Society of Upper Canada became responsible for this regulation of paralegals, making them “licensees” with equal standing, but of a different scope of practice, than lawyers. This week Treasurer Paul Schabas commemorated this anniversary, recognizing the over 500 newly licensed paralegals since December 2016 alone. There are an estimated 8,000 licensed paralegals in Ontario today.

Shabas stated,

This is a significant milestone. No doubt the implementation of paralegal regulation has had its challenges, but regulation has been tremendously successful in … making legal services more accessible and improving consumer services and public protection.

One of the biggest challenges continues to be the scope of practice, in particular with family law, which is currently under review in Ontario, and subject to ongoing friction between lawyers and paralegals (and within these groups). Prior to regulation, some paralegals were able to practice in this area.

Scope of practice issues are not limited to family law, however. The paralegal scope of practice is defined in Bylaw-4 as follows:

Activities authorized

(2) Subject to any terms, conditions, limitations or restrictions imposed on the class
of licence or on the licensee and subject to any order made under the Act, a licensee who holds a
Class P1 licence is authorized to do any of the following:

1. Give a party advice on his, her or its legal interests, rights or responsibilities with
respect to a proceeding or the subject matter of a proceeding.
2. Represent a party before,

i. in the case of a proceeding in the Small Claims Court, before the Small
Claims Court,
ii. in the case of a proceeding under the Provincial Offences Act, before the
Ontario Court of Justice,
iii in the case of a proceeding under the Criminal Code, before a summary
conviction court,
iv. in the case of a proceeding before a tribunal established under an Act of
the Legislature of Ontario or under an Act of Parliament, before the
tribunal, and
v. in the case of a proceeding before a person dealing with a claim or a
matter related to a claim, before the person.

3. Anything mentioned in subsection 1 (7) of the Act, provided the activity is
required by the rules of procedure governing a proceeding.
4. Select, draft, complete or revise, or assist in the selection, drafting, completion or
revision of, a document for use in a proceeding.
5. Negotiate a party’s legal interests, rights or responsibilities with respect to a
proceeding or the subject matter of a proceeding.
6. Select, draft, complete or revise, or assist in the selection, drafting, completion or
revision of, a document that affects a party’s legal interests, rights or responsibilities
with respect to a proceeding or the subject matter of a proceeding.

[emphasis added]

The types of legal services offered under this definition are typically understood to be comparable as the representation that paralegals provided prior to regulation as agents, which could best be understood as litigation and the activities surrounding litigation.

However, the best kind of litigators are those who can problem-solve an issue, and sometimes that happens prior to proceedings even beginning.

We discussed Bylaw 4 during a CPD yesterday with the Ontario Paralegal Association (OPA), Not On the Menu: Sexualized Dress Codes in Ontario. The topics we covered included the Ontario Human Rights Commission’s (OHRC) policy on gender-specific dress codes, including the new inquiry report released in March 2017, as well as employers’ obligations under Bill 132.

To me it seemed obvious that the best approach to reducing the incidents of discriminatory conduct in the workplace would be to assist employers in designing proper policies in advance, and conducting adequate training and guidance to supervisors, managers, and staff. The question though is whether this would properly fall within the scope of practice for paralegals under Bylaw 4.

These activities would clearly be potentially subject matters for proceedings, but under a strict interpretation of the bylaw, it would appear that litigation would at least have to be contemplated for such activities to fall clearly within the scope. If litigation was contemplated or initiated, the drafting, completion or revision of workplace policies to comply with the Human Rights Code would appear to properly be in the purview of paralegals.

This strict interpretation though goes against the larger purpose and goals of the Code. The OHRC’s mandate under s. 29 of the Code includes prevention of discriminatory practices in Ontario. Following the 2007 amendments to the Code under Bill 107, which removed the gatekeeper function of the OHRC, the main mandate of the Commission is in regards to broader systemic problems, including greater public education.

The greatest challenge with the population discussed in the OHRC’s new inquiry report is that it deals with a particularly vulnerable population. The report states,

Restaurant work is an important source of employment. In Ontario, restaurants employ 440,000 people, or 6.4% of the workforce, and more than one in five Canadians between the ages of 15 and 24 work in the industry. It is often an entry point for newcomers into the Canadian job market, and an accessible career option for many others, as most positions do not require specialized training or higher education.

However, restaurant work can also be precarious, with low wages, reliance on tips and part-time hours. Women are more likely than men to hold precarious employment and are more likely to experience poverty. Hosts, bartenders and servers in Ontario are predominantly female, and more than one-third are young women under age 24. Factors such as lack of awareness of human rights laws, age, recent immigration, uncertain employment, reliance on tips, low rates of unionization, and the prevalence of sexual harassment and sex discrimination in the restaurant industry can increase worker vulnerability. This means that many employees are afraid to complain about dress codes, sexual harassment or other discrimination, and that discriminatory environments and staff complaints are often not appropriately addressed. Some workers fear reprisal for raising concerns about dress codes and other sexual harassment…
[emphasis added]

Paralegals are the group of licensees most likely to assist these vulnerable sectors of the population given their specialized focus on administrative tribunals and generally lower fees. But paralegals could also assist these vulnerable employees even more through provision of legal services to employers to help them better comply with the Code. Not only would this be more aligned with the broader public interest, but it furthers the purposes and objectives enunciated under s. 5 of the Code itself.

As paralegals continue to provide more cost-affordable services under their scope of practice, often in specialized tribunals where the majority of parties are entirely unrepresented, their knowledge and background about the legal interests, rights or responsibilities of the parties can often exceed that of lawyers, who may never practice in these areas at all.

Utilizing this expertise to facilitate broader systemic changes, and greater public legal education, is also a component of the paralegal scope of practice which should also be explored in the years to come.