Ontario paralegals to be regulated — by the Bar

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Under “Bill 14“, a statute passed on Oct. 19, 2006, the Law Society of Upper Canada (“LSUC”) now has a Paralegal Standing Committee in place to set policy and administer a regulatory scheme that will go into effect on May 1, 2007.  Five of the 13 members are paralegals and three others are lay members of the Society.  (Law Times, “LSUC sets up paralegal committee,” Nov. 27, 2006; LSUC News Release) According to the Ontario Attorney General, Michael Bryant:   

“The Access to Justice Act will provide for paralegal regulation in order to give consumers a choice in qualified legal services while protecting people who get legal advice from non-lawyers. For the first time in Canada’s history, paralegals will be required to receive training, carry liability insurance and report to a public body that can investigate complaints.”

A Nov. 17, 2006 press release from the Ontario AG also asserts that “Ontario consumers looking for legal services are closer to having more choice and better protection, as the provincial government moves to solidify a new system for authorizing, empowering and regulating paralegals,” and goes on to explain (“New Era Begins with Pathbreaking Paralegal Regulation”):

“Under the act, the Law Society of Upper Canada, which regulates lawyers, will now also regulate paralegals.  If authorized by the Law Society, paralegals will continue to provide the services they are currently authorized to provide including representation in small claims court matters, traffic infractions and other provincial offences, and tribunals.”  

foxG The Ontario Bar is, apparently, quite pleased with its new role as regulator of legal services provided by paralegals.  (see LSUC Paralegal Information Page)  However, it’s difficult for consumer advocates who have watched the regulatory style of lawyers (and most other professions), and the Bar’s broad dislike of independent paralegals, to be universally sanguine about the regulatory scheme that is being established as a model in Ontario.    Many questions come to mind, but the most prominent are:

  • Will the Bar unjustifiably restrict the roles/tasks that can be lawfully undertaken by paralegals? 
  • Will regulation significantly reduce the number of paralegals, resulting in higher prices for their services and a reduction in price competition with lawyers? 
  • Are the many costs of self-regulation justified by documented harm to consumers or the prevention of significant harm in the future?  Also, is the true objective — of the bar and of paralegal groups — based on a “capture theory” that increases the income of those regulated or by a “public interest” theory? (see “What is the Objective of Professional Licensing? Evidence from the US Market for Lawyers,” by Turin University Professor Mario Pagliero, Nov. 2004, who found that the American legal profession is regulated under the captive theory.)  
  • Will lawyers regulate paralegals in the often torpid fashion that they regulate themselves (see, e.g.ethicalEsq, and HALT) or with overzealousness in their crusade to protect consumers from nonlawyers?  That is: Will lawyers be sleepy watchdogs or hungry foxes as they guard the paralegal henhouse?

A quick bit of research today on the topic of Bill 14 and paralegal regulation in Ontario [we really could use Canadian contributors here at shlep!] produced a number of indications that the picture may not be totally rosy for the consumer of legal services.  For example:

  1. wolfDude The Paralegal Society of Ontario, issued a “White Paper on the Licensing and Governance of Paralegals” (Sept. 21, 2005) calling for self-regulation by paralegals and very skeptical of regulation that was administered by the Law Society.
  2. Eileen Barnes.the president of the Association of Legal Document Agents and the Paralegal Society of Ontario, told the committee hearing on Bill 14 last September, that “The sticking point has always been the definition of ‘the practice of law, which has caused so much consternation at these hearings. To be honest, it is not a difficult task. It is only difficult when one of the parties — that is, the law society — does not want to cede any ground to paralegals and fights tooth and nail to keep paralegals out of as many areas of legal practice as possible.”
  3. PSO President Barnes also told the legislative hearing: “The anger that some lawyers’ groups demonstrate towards the very idea of paralegals treading on their turf is palpable. I would remind you of what Mr. Justice Cory had to say in his report:

    “I would emphasize that it is of fundamental importance that paralegals be independent of both the Law Society of Upper Canada and the province of Ontario. The degree of antipathy displayed by members of legal organizations towards the work of paralegals is such that the law society should not be in a position to direct the affairs of the paralegals.”

  4. Randall Bocock, representing the County and District Law Presidents’ Association, told the Bill 14 Legislative Hearing that they should not use the term “paralegal” because “It may in fact likely lead to the notion in the minds of the public of an additional professional designation and a new order of professionals, which is clearly not within the intent of the legislation nor, frankly, needed for the purposes of a regime of regulation.”  In addition, Bocock opined: “Notably, non-advocacy roles such as the preparation and drafting of instruments, contracts, documents, wills, separation agreements, powers of attorney and the like should not be permitted for legal service providers. Errors in these areas, as mentioned by my colleague Orm Murphy, are discoverable much later in time, are not generally susceptible to remedial court orders for rectification, and result in irreparable and irrevocable harm where errors do occur.” 
  5. An October 2004 report, by that Ontario Bar Association, on Regulation of Paralegals states “The Professional Paralegal Association of Ontario (PPAO) refused to meet with the Law Society and hired Frederick H. Zemans to write a position paper on their behalf, arguing against regulation by the Law Society and for paralegals being permitted to do “all” solicitor’s work.” 
  6. Despite the claims in item #5 above, the Professional Paralegal Association of Ontario was apparently so derided by other paralegal organizations, and lost so much support even within its own membership, for failing to achieve more progress in the area of “non-advocacy” tasks, that it voted itself out of existence in January 2006.
  7. An advocate for tenants in Toronto voiced fears that “Less paralegals representing tenants means that either more lawyers will have to take the cases or those paralegals who do qualify to represent tenants will have to increase the fees they charge (to cover Errors & Omissions and Law Society fees, etc). Bad news for tenants? Possibly…perhaps more tenants will learn to represent themselves rather than pay even more for representation.   I suspect a lot of tenants will go unrepresented and the building owners will take advantage of the fact and tenants could end up paying even more in their rents for new roofs, heating boilers, etc.” 

p.s. For a stateside perspective on the many issues raised between and within the legal and paralegal professions, see this news account of a Florida Bar proposal for regulating paralegals and related political maneuvering. (Daily Business Review, “The Business of Law: About Face,” April 5, 2006) Also, see the discussion of Arizona’s Legal Document Preparer certification at f/k/a.

8 Comments

  1. Rod Paddon

    December 2, 2006 @ 9:21 am

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    I am a practicing paralegal, involved with the representation of persons charged with Ontario Provincial Offences. Although I believe in many cases that I am capable of doing so, I do not defend people charged with summary conviction criminal offences, nor do I attempt to provide legal services in those other areas of law, where I could if I wanted to.

    It is a fact that Lawyers do not pretend to be experts in all things to all people, and that they stick to what they are good at. Unfortunately, there are paralegals who believe that they can be “all singing and all dancing”, and seem to be willing to take on anything that they believe will produce a fee for service.

    I for one, not only support the introduction of a specific level of qualification and regulation of paralegals in Ontario, but I cannot wait for the provisions to come into place. I have been appalled by some of the horror stories that have been brought to my attention, and I believe that once in place the need to be licenced will be an opportunity for many of those who now oppose regulation, to move onto other unregulated occupations.

    The idea of having the Law Society as the principle regulating body, is also not a concern to me. They know the law, and the vast majority are ethical professionals who understand an have experience the trials and tribulations of providing these kinds of services. For these reasons I believe that they will be fair.

    Otherwise, the situation could be akin to having a civilian review board overseeing the activities of the police officers, and making carer killing decisions, based on their own personal agenda.

    The alternative would be to have to

  2. david giacalone

    December 2, 2006 @ 11:11 am

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    Thank you for your thoughtful Comment, Rod. I hope other paralegals and interested persons will also give their perspectives.

    In the USA, paralegals do not represent clients in court proceedings. It would be very helpful to get a brief summary of what services paralegals can do under current Canadian law, and what the “non-advocacy” tasks issue is all about.

  3. Bruce Parsons

    January 21, 2007 @ 6:14 pm

    3

    Hi all,

    Some more Canadian input on this issue….

    Paralegals can appear, in Ontario, in Small Claims Court and at most, if not all, tribunals, boards, agencies, etc. to represent people, in addition to the HTA offences Rod acts in and in some simple criminal matters.

    As a practice, for some 20 plus years, paralegals have also done simple wills, uncontested divorces, incorporations, pardons, etc. Across Canada, paralegals as Immigration Consultants can practice immigration, provided they are properly registered with CSIC (Canadian Society of Immigration Consultants).

    A little history perspective, the Professional Paralegal Association of Ontario (PPAO) was started in 2000 to actively promote self regulation as envisioned by Peter Cory, a respected judge and legal mind, who was commissioned by the province and delivered an outstanding report on the issue. As for paralegal regulation by the Law Society of Upper Canada, Peter Cory held that Paralegals should be self-regulated due to several factors, not least of which was competition between the parties, the animosity of lawyers to paralegals, the cost of regulation, etc.

    The PPAO was created primarily through the Paralegal Society of Ontario (PSO) and was to serve as a unifying body for paralegals to pursue this goal. Somewhere along the way, even though 100% of paralegals did not want the LSUC, their Board decided the LSUC was the only solution to the regulation of paralegals and failed to develop or listen to, other alternatives. The Board was likely well-meaning and sought to develop the profession but had no moral or ethical ground to continue, given their support for an alternative 100% of their members had soundly rejected. This led to a very bitter division between paralegals and ultimately led to LSUC being named the regulatory model. It also led to the forced dissolution of the PPPA, led by the PSO. The PPAO Board appear not to have suffered, as three of their Board members are among the five Paralegals appointed to the LSUC Standing Committee on Paralegals, and are currently drafting the regulations to be introduced May 1st, 2007. Even more ironic is that one of those appointtees is a career law clerk who will never qualify as a paralegal under those regulations.

    For paralegals, that is ancient history now that regulation is coming and the profession’s focus is on preparing for such regulation. LSUC has been clear that even though there is widespread evidence of public use of and need for paralegal services for things like uncontested divorces, any non-advocacy work will not be part of the initial regulatory model.

    Another concern is the cost of regulation, the LSUC is hardly a low cost service provider expert and even if fees and E & O insurance remain reasonable, the cost of compliance with a heavy regulatory model like that for lawyers may well put even paralegals beyond the reach of most of the public, with an average wage of $31,000 canadian per year.

    The PSO is working with LSUC to develop the best regulatory model for its members that it can under the circumstances and will continue to lobby within the system for paralegals.

    Bruce Parsons,
    Member of the Paralegal Society of Ontario

  4. Angela Browne

    February 7, 2007 @ 1:54 pm

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    I am also a Paralegal from Ontario, and a member of the Paralegal Society of Ontario (PSO). Having been on the Board of the PSO for over seven years, before I left last year, I have active involvement and know many Paralegals across the Province. I have had the opportunity to listen to the views of many parties in the regulation issue, as well as the post-regulation issue. I continue to moderate an online discussion group for Paralegals, as well as a Bulletin Board from the PSO website.

    I have met very few Paralegals that supported Bill 14. Once members of the public were informed about Bill 14, which the government never sought to tell the whole truth to, they were also in disagreement. During the legislative hearings, almost every Presenter opposed the Bill. Some of the notes from seakers are still available under http://www.pscanada.ca, a website for the PSO’s “national” version. I recall exactly five Paralegals, four of whom spoke in pairs, who favoured the legislation. And guess who got appointed to the Paralegal Committee? You guessed it!

    There is an undercurrent in the Paralegal community as to what was possibly offered to these individuals to have them present this position before the Legislative Committee studying Bill 14. As my good friend and colleague stated above, they were ALL appointed to the Paralegal Committee. Further undercurrents have produced a substantial group of angry Paralegals who have started to blame our leadership and other high profile Paralegals for failing to prevent Bill 14 from passing, which has created the rift I think the government was hoping for. However, in my view, even if we had the Pope himself before the Legislative Committee to speak against Bill 14, nothing would have changed.

    The position of the paralegal community is what has been done is done, but let’s try to see what we can do to save our profession. I am naturally cynical, because I felt the Legislative Committee hearings were a set up. Ontario’s Premier Dalton McGuinty’s own brother (and another lawyer) made an unscheduled appearance and made an argument in favour of Bill 14. He has also been actively stirring up members of the Ontario Bar Association to push for strict limits on what independent Paralegals can do and cannot do.

    But the fact remains: unless you are a Paralegal living and working in the large hub of the Greater Toronto Area; that is, Toronto itself, Brampton, Oshawa, Oakville, Mississauga, Pickering, etc. – the areas of practice that the OBA want us to be restricted to will essentially not make it worth staying in business. There simply isn’t enough of this type of business to keep a Paralegal busy and profitable outside the GTA. In addition, Paralegals do not have as high of an income as that of Lawyers. Lawyers can make an unlimited income in some areas. However, if we are restricted to the basic areas the OBA wants us to be involved in, our gross incomes will decrease and costs of doing business under the Law Society will increase, leaving many of us no option but to quit.

    In Ontario, and the rest of Canada, for that matter, people who are self-employed, are not eligible for Employment Insurance, as we would be if we were employed for a certain length of time with an employer. There are many Paralegals who do the supposed “desk work” or what the Bar Association called “solicitor’s work”, which includes uncontested divorces, filling out family law forms for clients who go on to represent themselves, simple incorporations, etc. These people have been instantly been put out of work, so who do they rely on? Their families? Many of them are the sole support of their families. Their savings? Having not made a signficant amount of income, I would suspect there would not be a lot of savings to live on. Get another job? Jobs are very difficult to get in Ontario, particularly if you want to stay out of the low-waged, minimum wage type trap. So what happens to these people? Ontario has a welfare system, but it is hardly enough to sustain a single person, yet a family – even at family rates. So, people may lose their homes, businesses, health and so forth, as the government goes on about how we are protecting the public against these very people who provided a needed service for a reasonable price. Very few of them to my knowledge have been sued or ever complained about by a consumer.

    And for those us including me, whose functions are primarily in the so-called “allowable” areas? I am barely making ends meet, because I choose to be self-regulated under the Paralegal Society. I carry insurance, receive reportings on various areas of law, subscribe to an online legal research service, pay an accountant to assist me with things like my trust account, etc. I am genuinely concerned despite doing all the right things, that I will not be able to afford to practice once we are all under the umbrella of the Law Society. By the way, four of the people appointed to the Paralegal Committee are from the Greater Toronto Area, and the fifth, who is not an Independent Paralegal, is not in a position to know what the market is like for Independents living in the Toronto area or outside the Toronto area.

    And yes, as part of the Paralegal Society of Ontario, we advanced a vote which received unanimous support at our 2005 fall conference to stop financially supporting the Professional Paralegal Association of Ontario, then in January of 2006, we all unanimously voted to dissolve this association. As my colleague above explained, they started off as a responsive, representative organization, but for whatever reason, became the only group of people (12 people sitting on a board around the table) who favoured Law Society involvement by trying to convince the rest of us there were no alternatives. Virtually all the members of the PPAO who were not Board members (and I think even a few Board members) disagreed with Law Society governance. So why continue supporting an organization that failed to continue to represent our interests at Queen’s Park?

    I have nothing personally against any of these people. I just think that the Attorney-General could have selected from a broader base of Paralegals when he formed that committee. The way he did this does not give me any positive feelings at all about regulations to come.

  5. Charles C Figueroa

    April 1, 2007 @ 12:52 pm

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    Can Developement of Canada Paralegals Eventually Benefit US Consumers?

    These events in Ontario with the Law Society of Upper Canada and the regulation of Paralegals are extremely interesting. Paralegals will pssibly provide greater access to legal services for the general public. Hopefully at a lower cost, this is like a breath of fresh air for consumers.

    It is great that Paralegals or Legal Assistants may be able to provide legal services and even be Advocates/Representatives in certain forums like small claims court, traffic court, administrative hearings and others. These are situations where representation by a Paralegal may be useful,cost efective and in many cases the only representation that the client/consumer would be able to afford.

    However, consumers should know that in situations where a defendant(criminal proceeding) can loose his/her liberty or where a client can loose a substantial sum of money, the advice and services of a seasoned Lawyer/Attorney should be sought.

    It will be interesting to see how the developement of the Paralegal profession in Canada and other countries affects the developement of paralegals and regulation in the United States. As many law firms already use paralegals or legal assistants to provide services at lower rates to clients. This advantage gives some law firms a competative edge over other law firms.

    Finally, in the United States is a movement to license, certify and regulate paralegals by state governments has been lacking. One would think that the state government licensing boards, as well as bar associations in the 50 states would jump at the chance of regulating and control thousands of paralegal professionals and of course collect annual license fees and dues from them.

  6. Jerry McFarland

    April 13, 2007 @ 1:05 pm

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    I am considering becoming a paralegal. With the new legislation would it be worth it??

  7. Karl Crevar

    May 9, 2007 @ 2:41 pm

    7

    We would like clarification on who or what organizations may be exempt.

    example: Organizations or individuals not charging a fee for service.

    Many of our member groups and affiliated organizations do not charge a

    fee for services provided.

    Please clarify item #9 Paralegal Questions & Answers Who Is Going To Be

    Regulated By The Law Society Under The Legislation.

    Look forward to hearing from you on this matter.

    per Karl Crevar
    Ontario Network of Injured Worker Groups
    (905) 662-7128

  8. Angela Browne

    June 21, 2007 @ 6:24 pm

    8

    A lot of discussion went on about who should be, or shouldn’t be exempt. I think there should be no exemptions, except those who work directly under the supervision of a lawyer and do not themselves go to court.

    Some have argued non-profit organizations, and volunteers from unions and other similar groups should be exempt. I don’t agree, because I have seen more evidence than not, that many of these same people can be just as incompetent as an untrained, unregulated independent paralegal. True, these people do not charge a fee, but to me, there is no difference … it is the quality of service that is provided, whether the service is provided by a paralegal directly representing you out of a legal firm, or a volunteer representing people through a non-profit organization.

    Who governs the qualifications of the people in these non-profit organizations? How do I know these people have any training at all, let alone legal training? Who do I complain to if somebody in these non-fee positions screws up a claim or a file of mine? To whom are they accountable?

    Some may answer they are accountable to their board of directors, but I have more experience than not, with boards that hide their heads in the sand when it comes to dealing with legitimate complaints against people in their organizations, whether staff or volunteer.

    As a paralegal, the only reason I have to charge a fee for my service is because no government agency will fund these types of services, and Legal Aid Ontario is not likely to cover us in the near future. The only difference between me and a volunteer in a non-profit organization is that I charge for my services, but nevertheless, I have to go under the umbrella of the Law Society and pay excessive amounts of money only to support a growing bureaucracy intended to protect the public, but with the untoward effects of forcing me to raise my fees.

    How can that be any good for the consumer?

    In conclusion, the only people who should be exempt from regulations here are those who are already regulated elsewhere, and only to the extent they are regulated elsewhere. For example, I would still consider it unauthorized practice of law if I see any social workers or non-legal agents “representing” somebody in a court or a tribunal anywhere.

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