The Cory Report and the Regulation of Paralegals in Ontario
May 31, 2000, former Supreme Court justice Peter Cory
issued a report commissioned by the Ministry of the
Attorney General concerning the regulation of
paralegals. Currently, there are no mandatory
educational requirements that Ontario paralegals must
attain, nor do consumers of legal services have any
means of lodging a complaint with a professional
regulatory body about the conduct of a paralegal,
subject to some voluntary self-regulation described
in this paper.
On May 31, 2000, former Supreme Court justice Peter Cory issued a report commissioned by the Ministry of the Attorney General concerning the regulation of paralegals.3 Currently, there are no mandatory educational requirements that Ontario paralegals must attain, nor do consumers of legal services have any means of lodging a complaint with a professional regulatory body about the conduct of a paralegal, subject to some voluntary self-regulation described in this paper.
This backgrounder discusses the content of the Cory report, the reaction of various stakeholders, and some of the approaches to paralegal regulation in other jurisdictions.
2. Definition of "Paralegal"
Justice Cory's Report describes paralegals as non-lawyers who work independently performing legal services before boards, tribunals, or some courts, for a fee.4 The Paralegal Society of Ontario defines the term in the same manner, although numerous individuals who work under the supervision of a lawyer might call themselves "paralegals". However, these supervised activities are not the subject of Justice Cory's report, nor are the activities of individuals who act for friends and relatives on legal matters without charging a fee.5 The term "agent" is often used in the legislation discussed below in referring to non-lawyers who represent clients before courts and tribunals.
3. Public Perception
A poll conducted by Environics Research Group Ltd. in 1998 revealed that one-third of the participants could not identify any difference between lawyers and paralegals. More than three in ten respondents believed that lawyers and paralegals were subject to the same regulations. However, of those respondents who were aware that paralegals were unregulated, three-quarters endorsed the notion of imposing limits on paralegal practice.6
4. Current Regulatory Framework
The Law Society Act restricts the practice of law to barristers and solicitors "except where otherwise provided by law."7 The Law Society of Upper Canada (LSUC) prosecutes individuals accused of unauthorised practice; in the past this has included paralegals. This has led many paralegals to call for a clarification of the law concerning paralegal practice.8 One of the gaps in the current regulatory regime is the absence of a definition of the term "practice of law" in the Law Society Act. In their recommendations to Justice Cory's review, both the LSUC and the Canadian Bar Association (Ontario) (CBAO) suggested that the Act be amended to include such a definition, as is the case in British Columbia, Manitoba, and New Brunswick.9 Both groups favoured the detailed explanation of the term "practice of law" adopted in British Columbia.10
The LSUC's Rules of Professional Conduct provide that lawyers must supervise non-legal professionals to whom they delegate work.11 The Rules of Civil Procedure12 require representation by a solicitor in proceedings before the Superior Court of Justice. There are some exceptions to this principle. One of these is the Construction Lien Act,13 which allows lien claimants to be represented by agents if the claim is within the jurisdiction of the Small Claims Court. The Courts of Justice Act14 permits representation by agents for small claims matters. The Tenant Protection Act, 199715 also allows some agent activity. However, in November 2000 a judge determined that paralegals could not represent clients in the Ontario Superior Court of Justice on appeals of decisions made by the Ontario Rental Housing Tribunal (ORHT). Following this decision, in certain circumstances paralegals will be permitted to appear in court on ORHT appeals, but only if they provide proof of "good character" as well as details about insurance or compensation funds available to clients.16
The Statutory Powers Procedure Act,17 which governs practice before administrative tribunals (which have less rigid procedures than courts, and determine issues requiring specialised expertise), provides for a right to representation by an "agent," without specifying that this individual must be a lawyer. The Highway Traffic Act,18 Provincial Offences Act,19 and the federal Criminal Code20 (discussed below) permit agents to represent clients charged under these statutes before the courts. Finally, the Family Law Rules provide that "a party may be represented by a person who is not a lawyer, but only if the court gives permission in advance."21
LSUC Prosecutions of Paralegals
The Law Society Act allows the Society to prosecute individuals alleged to have engaged in the unauthorised practice of law.22 On September 1, 2000 the Law Society of Upper Canada obtained a permanent injunction against a North Bay paralegal, who was ordered by a Superior Court judge to desist from practising law. Ms. Boldt's activities included preparing and drafting separation agreements and petitions for divorce in both uncontested and contested matters as well as drafting wills and incorporations.23 Justice Bolan noted that Justice Cory had recommended that paralegals be permitted to act for clients in uncontested divorces, as well as to prepare "simple" wills.24 However, he concluded that in engaging these activities, Ms. Boldt had engaged in the unauthorised practice of law. He also commented that "by performing these services (she) created substantial risks to the parties involved and to the community at large."25
Paralegals may choose to belong to three professional associations: the Paralegal Society of Ontario,26 the Paralegal Association of Ontario, and the Paralegal Society of Canada. One quarter of the province's 4000 paralegals belong to the Paralegal Society of Ontario.27 The Paralegal Society of Ontario has worked towards the establishment of an accreditation/certification program and the establishment of a governing body to monitor the professional conduct of all certified paralegals. The Paralegal Society has also drafted a Code of Ethics, which, as Justice Cory notes in his report, is similar to the Rules of Professional Conduct of the Law Society of Upper Canada.28 However, one of the key differences between the rules governing the legal profession and the guidelines concerning the paralegal profession is that there is no mechanism for consumers to lodge complaints about the conduct of a paralegal. The only means open to a dissatisfied client is to sue the paralegal in question.
Lawsuits Against Paralegals Alleging Negligence
Earlier this year an Ontario Superior Court judge found that a Mississauga paralegal was required to pay a client damages for professional malpractice. The client launched the action after the paralegal refused to return a $1,900 fee he had charged for representation in an unsuccessful Worker's Compensation appeal. The Court awarded the client $7,280 for her lost benefits; this amount included $3,500 for emotional distress. In addition, the judge found that the paralegal owed the client a "fiduciary duty," that is, he had a special responsibility towards the client that was identical to the special relationship between a client and a lawyer. The lawyer representing the client noted that this is the first case in which a court has found that a paralegal owes a client a special duty of care.29
5. Prior Public Debate on Paralegal Regulation
The question of how to regulate the paralegal profession has been the subject of considerable discussion in both the courts and Legislative Assembly during recent years. Brian Lawrie, a former police officer who became a paralegal and represented individuals accused of traffic offences, was prosecuted by the Law Society of Upper Canada for engaging in the unauthorised practice of law in the mid 1980s. The Law Society lost its case at trial, and appealed to the Ontario Court of Appeal. In 1987, the Court of Appeal issued a decision concluding that non-lawyers, or "agents," could represent individuals in court in certain circumstances. In rendering its decision the Court called on the Legislative Assembly to develop a regulatory regime surrounding agent activity.30
During the same period a Progressive Conservative M.P.P. for Oakville, Terrance O'Connor, introduced a Private Member's Bill in the Legislative Assembly to regulate paralegal practice.31 In his remarks to the House Mr. O'Connor, a lawyer, noted that in enacting various statutory provisions that permitted "agents" to represent clients before various courts and tribunals, the Legislative Assembly had effectively created the paralegal profession. In both 1986 and 1987, Mr. O'Connor's bill passed second reading and was referred to the Standing Committee on the Administration of Justice. However, it did not become law.
In 1990 the Ministry of the Attorney General published a report recommending legislative action to establish educational standards and other controls over the activities of paralegals.32 The report contains a comprehensive series of recommendations addressing the questions of areas of permissible paralegal practice, regulation, and education and training, as well as discipline and consumer protection. However, no action was taken in response to this initiative.
In 1998 the Attorney General, Charles Harnick, asked Gerry Martiniuk, M.P.P., his Parliamentary Assistant, to canvas the paralegal community for its views. On June 15 1998 lawyers and paralegals met at Queen's Park for the first time to discuss a regulatory structure for paralegal practice. Paralegals were represented by the Paralegal Society of Ontario. Two sub-committees were established to consider various aspects of the problem. During the fall of 1999, Attorney General Jim Flaherty asked former Supreme Court Justice Peter Cory to study the issue and provide recommendations.
In a recent decision, the Ontario Court of Appeal33 noted that the question of paralegal regulation had become yet more pressing in light of amendments to the Criminal Code after 1990.34 These amendments introduced new offences that are described as "hybrid," in the sense that they may be prosecuted either by indictment, (i.e. with a more complicated procedure) or summarily; paralegals and other non-lawyers may represent individuals accused with summary but not indictable offences. The difficulty raised by this change was that many of the new "hybrid" offences are serious: e.g. sexual assault, assault with a weapon, forcible confinement, breaking and entering, uttering threats, and forgery. Jail terms for these offences can be as long as 18 months.
In its remarks the Court noted the serious consequences for individuals accused of such offences as well as the importance of skilled and effective representation at trial, concluding that "continued legislative inaction suggests indifference to the proper administration of criminal justice in summary conviction proceedings. The cynics among us will suggest that only some serious and highly publicised miscarriage of justice will overcome that indifference. We hope not."35
Justice Cory's recommendations appear to address this issue, since the Framework proposes limiting the nature of summary conviction charges for which a client can retain a paralegal to minor offences that do not involve a term of imprisonment.36
The next part of this paper summarises the recommendations made to Justice Cory by both lawyers and paralegals.
6. Stakeholder Recommendations
Law Society of Upper Canada
A number of individuals working as paralegals as well as several associations representing larger groups within the profession also presented their views, some of which have been noted below. Not surprisingly, paralegals favoured a broadening of the range of acceptable paralegal practice to include the following:
7. Conclusions Reached by Justice Cory
Justice Cory rejected the LSUC's recommendations concerning the narrowing of the range of paralegal practice. He also made a number of suggestions concerning how non-lawyer activity could be regulated. His findings are summarised below:
Paralegals currently in practice
Paralegals who have been practicing independently or under the supervision of a lawyer for at least two years prior to January 1, 2000 would not be required to complete the two-year accredited community college program recommended by Justice Cory. However, Justice Cory proposes that once the governing body has approved the special examinations for paralegals, those who have been "grandfathered" will have to demonstrate that they are capable of working in any of the permissible areas of practice.39
8. Stakeholder Response to the Report
Paralegals and the LSUC
While the Paralegal Association of Ontario indicated that they were "very pleased" with the report,40 the LSUC issued a detailed analysis of the report disagreeing with many of the recommendations as well as indicating that it would agree to some of Justice Cory's recommendations if they were amended.41 The LSUC did not believe that paralegals should represent clients before independent boards and tribunals, nor did the Society agree with the Framework's recommendation of paralegal responsibility for uncontested divorces, incorporations of private companies or simple wills.42
A number of lawyers voiced objections to Justice Cory's recommendations. Gary Gottlieb, a Toronto practitioner, commented that no incorporation is straightforward as clients require substantive legal advice concerning the consequences of such a step as well as whether incorporation is appropriate in the circumstances.43 Bob Aaron, president of the Ontario Real Estate Lawyers Association and a Bencher (member of the Board of Directors) of the Law Society of Upper Canada, criticised the Framework's recommendations regarding real estate for their failure to address certain issues listed below:
The CBAO highlighted several issues that in their view were not addressed in the Framework. They also disagreed with some of the Report's conclusions. Some of these comments are noted below:
In September 2000 the CBAO sent letters to each of its 14,000 members urging them to telephone the Attorney General as well as Members of the Legislative Assembly to suggest that Justice Cory's recommendations be rejected.45
Ministry of the Attorney General
Although Brendan Crawley, spokesperson for the Ministry, stated during the summer of 2000 that the Attorney General, Jim Flaherty, would like to deal with the question of paralegal regulation as soon as possible, as of November 2000 there had been no announcement concerning the introduction of legislation.46 Mr. Flaherty noted the existence of two competing policy goals: "our priority is twofold: to protect people who purchase legal services, and to ensure that the justice system continues to be accessible to ordinary people. We are committed to resolving this outstanding issue."47
9. Other Jurisdictions
The final component of this paper surveys approaches to paralegal regulation in other jurisdictions. For example, the provinces of Manitoba and Prince Edward Island have enacted specific provisions concerning areas of permissible practice for non-lawyers. In addition, British Columbia has adopted special measures to address the question of legal representation in rural areas. The other provinces restrict the practice of law to qualified members of the provincial law society, although non-lawyers are permitted to perform certain limited tasks.
Prince Edward Island
The Legal Profession Act allows non-lawyers to appear before boards and commissions on behalf of clients in labour and employment law matters.48 The Act also permits agents to give legal advice, so long as the advice is given exclusively to the agent's employer. The intent of this provision is to allow union representatives to provide legal services.49
In 1990, the Law Society Act50 was amended to regulate paralegal practice. The amendment permitted a non-lawyer to "act as an agent on behalf of and to provide legal advice to another person" in matters involving offences under the provincial Highway Traffic Act (HTA), if the person met the requirements of the Act and regulations including bonding, insurance and licensing.51 However, paralegals could not represent individuals accused of offences under the HTA if the penalty for the offence could be a term of imprisonment, unless the only circumstance in which the defendant might receive a jail term would be for defaulting on payment of a fine.52
The Act also created a Registrar to regulate agents providing legal services.53 An agent is required to supply a penal bond of $2,500. The bond may be forfeited by the Minister of Finance upon the demand of the registrar where
The Court Agent Act55 allows a person who is not a member of the bar to act as an agent on behalf of another person in remote, under-serviced areas of the province. The agent may appear before any court in the province hearing any type of proceeding, but only in those regions where there are fewer than two members of the bar engaged in active practice whose offices are within 8 km. of the location of the court.
The Law Society of British Columbia recently amended its Professional Conduct Handbook to indicate that "it is in the interests of the profession and the public for the delivery of more efficient, comprehensive and better quality legal services that the training and employment of legal assistants be encouraged."56
Approach in the U.S. and U.K.
The only regulation of unsupervised non-lawyer activity in the U.S. is through unauthorised practice provisions in criminal and civil statutes, along with court orders and state bar Unauthorized Practice of Law (UPL) committees.57 Non-lawyers are permitted to represent clients before administrative agencies, although many tribunals have their own rules to determine whether or not the individual is qualified to do so.
A study conducted in Wisconsin concerning the effectiveness of non-lawyer advocacy in unemployment compensation appeals, tax appeals, social security disability appeals and labour arbitration cases suggested that individuals without formal legal training could effectively represent clients as long as they were knowledgeable and experienced.58 The exception to this finding was in the area of tax appeals, where lawyers had greater expertise in identifying and presenting evidence than did non-lawyers. Several states have conducted studies and others are considering legislation that would allow non-lawyers to provide routine legal services to the public under limited circumstances.
In the U.K., a major area of concentration for non-lawyers is real estate. The Administration of Justice Act 1985 created a Council of Licensed Conveyancers, which gives these practitioners the same rights as a lawyer, although they are also subject to disciplinary procedures.59 Licensed Conveyancers must purchase insurance and, as their title suggests, must hold a permit. A sub-committee on paralegal governance set up under an initiative undertaken by former Attorney General Charles Harnick (discussed above) considered this model as a basis for regulation of paralegals involved in real estate conveyancing.60
The debate over the scope of paralegal activity demonstrates that there are few areas of common ground between lawyers and paralegals, except for the need for regulation. Lawyers question the assumption that paralegal practice permits greater access to justice, arguing that in many cases fees charged by lawyers are similar to those charged by paralegals. However, paralegals might point to the increasing number of unrepresented litigants in the courts as evidence that legal fees are beyond the financial reach of many citizens. Reconciling these competing interests to facilitate access to justice as well as to guarantee competent representation for all citizens is a delicate task.
1 Marina Strauss, "Paralegals given qualified support by Attorney-General," Globe and Mail, 22 March 1986, A18.
2 (2000) 178 Dominion Law Reports (D.L.R.) (4th) 466 (Ont. C.A.) at 495-96.
3 Framework for Regulating Paralegal Practice in Ontario [Framework]. See the Executive Summary and Recommendations, at 116, 118, 119, 120, 122 [Framework]. Internet site at http://www.attorneygeneral.jus.gov.on.ca/html/cory/execsummary.htm accessed on 6 November 2000.
4 Ibid., p. 1.
6 Canadian Bar Association Ontario (CBAO), Response to a Request for Comments on the Regulation of Paralegal Practice in Ontario, 3 March 2000 at 2 [Response].
7 R.S.O. 1990, c. L.8, s. 50(1).
8 Maureen Boldt, prosecuted by the Law Society of Upper Canada for unauthorised practice, has called for regulation. See Bill Schiller, "Law faces a Boldt challenge and it's perfectly paralegal; Maureen Boldt loses her home and her health in six-year challenge of lawyer's domain," Toronto Star, 12 March 2000 at A1.
9 Framework, supra note 3 at 154; CBAO, Response, supra note 6 at 27-28.
10 Legal Profession Act, S.B.C. c. 9, s. 1.
11 Law Society of Upper Canada, Rules of Professional Conduct, Rule 5.01(2), "Relationship to Students, Employees, and Others." Internet site at http://www.lsuc.on.ca/services/contents/rule5.shtml accessed on 6 November 2000. On the scope of permissible delegation, see Rule 5.01(3).
12 R.R.O. 1990, Regulation 194, Rule 15.
13 R.S.O. 1990, c. C.30.
14 R.S.O. 1990, c. C.43.
15 S.O. 1997, c. 24.
16 Tracey Tyler, "Ruling evicts paralegals on landlord-tenant cases", Toronto Star, 24 November 2000, A30.
17 R.S.O. 1990, c. S.22, s. 10.
18 R.S.O. 1990, c. H.8.
19 R.S.O. 1990, c. P.33.
20 R.S.C. 1985, c. C-46. S. 800(2) provides that a defendant charged with a summary conviction offence may appear personally or be represented by counsel or an agent. S. 802(2) states that a defendant may examine and cross-examine witnesses personally or through his counsel or agent.
21 Family Law Rules, O. Reg. 114/99, s. 4(1)(c). For a list of Ontario statutes permitting representation by an agent, see the Law Society of Upper Canada, Convocation Report, (March 23, 2000) at 150, footnote 145 [Convocation Report]. Internet site at http://www.lsuc.on.ca/paralegal/paralegalfinalrept_en.pdf accessed on 6 November 2000.
22 Law Society Act, supra note 7, s. 50(1).
23 Law Society of Upper Canada v. Boldt et al, 1 September 2000, Superior Court of Justice, Court File No. 1695-99 [unreported].
24 Ibid, p. 6.
25 Law Society of Upper Canada v. Boldt, supra note 22 at 7.
27 This estimate appeared in a media account. See Gay Abbate, "Report urges widening of paralegal responsibilities," Globe and Mail, 13 June 2000 at A20.
29 Eric Atkins, "Judge goes where province fears to tread: Paralegals' fiduciary duty like lawyers", Law Times, 27 March 2000 at 1.
30 R. v. Lawrie and Pointts Ltd. (1987), 59 O.R. (2d) 161 (C.A.).
31 Ontario, Legislative Assembly, 33rd Parliament, 2nd Session and 33rd Parliament, 3rd Session, Bill 42, Paralegal Agents Act, 1987.
32 Ontario, Ministry of the Attorney General, Report of the Task Force on Paralegals (Toronto: 1990).
33 R. v. Romanowicz, supra note 2 at 472.
34 Criminal Law Amendment Act, 1994, S.C. 1994, c. 44, and Criminal Law Improvement Act, 1996, S.C. 1996, c. 18.
35 R. v. Romanwicz, supra note 2 at 496.
36 See the Framework, supra note 3 at 59.
37 Convocation Report, supra note 20 at 7.
38 Some of the criminal offences include vagrancy; food, beverage, accommodation and transportation fraud; defacing coins; falsifying employment records; and public nudity. For a complete list, see the Framework, supra note 3 at 59.
39 The CBAO recommended against "grandfathering" except in the case of paralegals who had met an approved standard of apprenticeship. See Response, supra note 6 at 30.
40 Dahn Batchelor, a paralegal who represents individuals accused of criminal summary offences, disagreed with Justice Cory's conclusions: "A paralegal takes issue with Cory Report," Law Times, 17 July 2000 at 7.
41 The report, dated 24 July 2000. Internet site at http://www.lsuc.on.ca/pdf/analysis_corys_report.pdf accessed on 6 November 2000.
42 See "Executive Summary", Ibid. at 8.
43 Gary Gottlieb, "The Cory report: time to speak up," Law Times, 21 August 2000 at 7.
44 Bob Aaron, "Paralegal report concerns real estate bar," Law Times, 24 July 2000 at 7.
Eric Atkins, "CBAO mounts
campaign to restrict paralegals," Lawyers Weekly,
46 David Gambrill, "AG mum on timing of paralegal law," Law Times, 31 July 2000 at 3.
47 Eric Atkins, supra note 28.
48 Legal Profession Act, S.P.E.I. 1992, c. 39, s. 21(2)(b).
49 Telephone interview with Jim Wyatt, Secretary-Treasurer of the Law Society of Prince Edward Island, 7 November 2000.
50 R.S.M. 1987, c. L100.
51 Ibid., s. 57.1.
52 Ibid., s. 57.1(4).
53 Agents Bonding and Insurance Regulation, Man. Reg. 105/90, s. 3.
54 Ibid., s. 9(1).
55 R.S.B.C. 1979, c. 73.
56 Law Society of British Columbia, Professional Conduct Handbook, accessible on the Internet at http://www.lawsociety.bc.ca/library/frame_resource_handbook.html , viewed on 6 November 2000.
57 Convocation Report, supra note 20 at 83.
58 Marc-Georges Pufong, Book Review, Legal Advocacy: Lawyers and Nonlawyers at Work, by Herbert M. Kritzer, Ann Arbor: University of Michigan Press, 1999, American Political Science Review, September 2000 at 724.
59 Convocation Report, supra note 20 at 88-89.
60 Michael Fitz-James, "Paranormal Life: You wouldn't recognise them legal agents' practising law. Ontario now seems serious about regulating them", Financial Post, 24 September 1998 at 23.
Copyright (c) 2000: Office of the Legislative Assembly of Ontario, Toronto, Ontario, Canada.