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• Globe Article
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Download the Proposed Regulatory Framework document in .pdf A Framework For Regulating Paralegal Practice
In Ontario - The Honourable Peter deC. Cory EXECUTIVE SUMMARY The Review was implemented to explore the role of paralegals in the Ontario justice system. There are incompetent and irresponsible individuals claiming to be paralegals. Their misconduct is disgraceful their actions mislead the public and disrupt the proceedings of courts, boards and tribunals. However, it is also clear that there also able, conscientious and efficient paralegals who provide a needed service to the public in a number of areas. The importance of legal services to society is self-evident. The public needs access to adequate, effective, affordable legal services. To increase access to justice in a manner that protects the public must be the aim of the legal profession and goal of society. The presence of paralegals in Ontario has steadily increased. They are now playing an important role in the delivery of legal services particularly in their work before boards and tribunals and in court on provincial offences. Paralegals have a significant role to play in increasing the public's access to legal services. There is agreement among all interested parties that the activities of paralegals must be subject to a regulatory regime. The protection of the public and the proper functioning of the courts, boards and tribunals urgently require the establishment of a system of licensing and regulating paralegals. The first step that must be taken is to ensure that paralegals have attained the requisite level of competency. A minimum level of education, successful completion of the examinations and a requirement of good character will ensure the competency of all who work as paralegals. For those entering the field there should be a minimum requirement of the successful completion of a two-year community college program. They must as well complete a period of mentoring. In order to practise before specialized boards or in court on provincial offences or in some of the other areas referred to in this Report competency examinations will have to be successfully passed by those who have newly entered the field and those who qualify as grandfathers. There will have to be a governing body put in place. At the outset it will be composed of four paralegals; four members of the public; two nominees from the Law society of Upper Canada and four representatives from the Ministry of the Attorney General with an independent chair presiding. The board of governors will be required to ensure that all paralegals have an errors and omissions insurance policy and that a compensation fund has been established. Paralegals will be required to provide and have executed a retainer letter which clearly indicates that the paralegal is NOT a lawyer; that the paralegal is limited as to the extent of the advice that can be given and that the client may have their accounts assessed. The governing body will also establish a system of discipline for a breach of conduct that is expeditious and fair. Once an adequate educational standard has been attained and the public protected by a code of conduct, a discipline procedure, an errors and omissions policy and a compensation fund, then paralegals should be authorized to practice in a number of areas. These areas of practice will include: * appearances before specialized boards and tribunals after passing
examinations such as the Ontario Rental Housing Tribunal; the Ontario
Labour Relations Board; the Financial Services Commission of Ontario
(Dispute Resolution Group); the Ontario Workplace Safety and Insurance
Appeals Tribunal; and the Ontario Municipal Board; A suggestion but not a recommendation has been made that qualified licensed paralegals may appear before the Immigration and Refugee Board of Canada. Paralegals should be able to draw simple wills in the following restricted circumstances: where the assets are limited to a matrimonial home, bank accounts, RRSPs, insurance policies and savings bonds and where the distribution under the will is limited to situations where the sole beneficiary is to be the spouse, and if the spouse predeceases the testator or there is no spouse, and the assets are to be divided equally among the children per stirpe. They should also be able to draw and have executed powers of attorney and living wills. In the family law area paralegals should be restricted to undertaking uncontested divorce proceedings in any one of the following three circumstances: first, where the parties have no children and no significant assets or the assets are jointly held, and if there is no need for, or no issue outstanding, as to spousal support; second, where the proceedings are commenced within one year of the execution of the separation agreement which resolves all collateral concerns; third, where there was a court order resolving all of the ancillary issues granted within one year of the commencement of the divorce action. Licensed paralegals should also be made available by Legal Aid Ontario in a role similar to that of duty counsel for proceedings in family court. Licensed paralegals should be authorized to practice in the real estate law area where he or she is acting for the vendor in the sale of a residence that is either clear of any mortgage encumbrance or subject only to one mortgage. The practice of paralegals in the criminal law area will be strictly limited to appearances in court on a small number of true summary conviction offences such as vagrancy. Paralegals should have the authority to swear affidavits. This is an essential requirement that is integral to their work. Confidential information imparted to paralegals must not be divulged unless a judge deems it necessary for the administration of justice and orders it to be disclosed. If, in any of the areas in which paralegal are authorized to practise, a client requests the services of a French-speaking paralegal, every effort must be made to find a paralegal in the appropriate field who is fluent in French. RECOMMENDATIONS Recommendations 1 to 5: Chapter II General Education and Good Character Requirements of Paralegals 1. A system should be established for the regulation and licensing of independent paralegals who wish to work in the permissible areas of practice. 2. All paralegals applying for a licence must be of "good character" as the Law Society of Upper Canada has defined that term. 3. Once the courses and curriculum at the accredited community colleges have been approved by the governing body, the following licensing requirements will be in effect: (1) paralegals must successfully complete a two-year program provided by an accredited community college; (2) the curriculum for the two-year accredited community college program will be fixed by the governing body of paralegals in consultation with the members of the faculties of the community colleges, justices of the Ontario Court of Justice, members of boards and tribunals, and the Law Society of Upper Canada; and (3) upon completion of the two-year accredited community college program, all graduating paralegals will spend three months in a mentoring program, and mentoring may be provided by a lawyer or licensed paralegal with five years of experience; alternatively, it may be attained by monitoring the public proceedings of a specialized board or tribunal with its consent for a period of three months. 4. Those who have practised under the supervision of a lawyer or as independent paralegals for at least two years prior to January 1, 2000 will qualify as "grandfathers" for a licence; they will not be required to complete the two-year accredited community college program. 5. Once the special examinations for paralegals have been approved by the governing body, those who qualify as "grandfathers" will have to pass the special examinations to demonstrate their competency to work in any of the permissible areas of practice and to appear before specialized and non-specialized boards and tribunals and specified courts. Recommendations 6 to 16: Chapter III The Provision of Protection for the Public 6. The governing body should develop a code of conduct to which all licensed paralegals must adhere, which to the greatest extent possible resembles the code of conduct prepared by the Law Society of Upper Canada for its members. 7. The code of conduct for licensed paralegals should include a provision that information obtained by a licensed paralegal from a client in the course of providing services to the client must be held in the strictest of confidence and not be divulged unless authorized by the client or required by an order of a court. 8. A procedure for disciplining licensed paralegals should be developed. 9. The procedure for discipline should include, until the paralegal organization becomes self-regulatory, a panel consisting of three members: one lawyer; one licensed paralegal; and one member of the public to review complaints. 10. The discipline panel should be authorized to impose an appropriate punishment, including licence suspension or revocation, fine and reprimand, or any other disposition that it deems appropriate. 11. There should be provision for an appeal of the decision of the discipline panel to the governing body or to the Divisional Court; the appellate body should be authorized to adopt, rescind or vary the decision of the discipline body as it sees fit and impose such sanctions as it deems appropriate. 12. Errors and omissions insurance should be carried by all licensed paralegals. 13. A compensation fund should be established by the governing body. 14. Whenever requested and wherever possible the services of licensed paralegals should be made available in the French language. 15. A process for assessing the accounts of licensed paralegals should be developed by the governing body. 16. All licensed paralegals should use a standard retainer letter which clearly indicates that the licensed paralegal is not a lawyer; that the paralegal is only authorized to practise in specified areas; that advice given to the client must be limited to those areas in which the paralegal is authorized to practise; and that the client may have the bill assessed. Recommendations 17 to 33: Chapter IV Areas of Permissible Practice - Provincial Boards and Tribunals 17. Wherever the empowering statute of any board or tribunal provides that parties may appear by agent, only licensed qualified paralegals should be authorized to appear. 18. All licensed paralegals appearing before a specialized board or tribunal should be required to either pass a special examination which demonstrates their competence in the work of the particular specialized board or be recommended by a specialized board or tribunal for a secondary licence. 19. The secondary licence should be valid for one year and be renewable annually, and the licensed paralegal should be restricted to appearances before the specified board or tribunal. 20. A paralegal who obtained his or her licence after having completed a program in an accredited community college should be authorized to appear before any non-specialized board or tribunal. 21. "Grandfathered" licensed paralegals should be required to pass a general examination respecting administrative tribunals in order to appear before non-specialized boards. However, a "grandfathered" licensed paralegal who has passed an examination to appear before one specialized board should not be required to pass a further examination to appear before non-specialized boards and tribunals. 22. Costs may be awarded to parties who are represented by licensed paralegals before provincial boards and tribunals and where the licensed paralegal is authorized to appear on the first level of appeal from a decision of a board or tribunal, before those appeal courts. 23. Boards and tribunals should be authorized to order costs against a licensed paralegal if his or her conduct is extremely disruptive, misleading, mendacious or unscrupulous. 24. Boards and tribunals should be authorized to expel a licensed paralegal on a temporary basis where the behaviour of the licensed paralegal is incompetent, dishonest or disruptive. 25. Licensed paralegals duly qualified, whether by passing a special examination or by holding a secondary licence, should be authorized to appear before the Ontario Rental Housing Tribunal. 26. Licensed paralegals duly qualified, whether by passing a special examination or by holding a secondary licence, should be authorized to appear on an appeal in the first instance from the Ontario Rental Housing Tribunal. 27. Licensed paralegals duly qualified, whether by passing a special examination or by holding a secondary licence, should be authorized to both assist injured parties in preparing their accident claim forms and to participate in the mediation and arbitration work of the Dispute Resolution Group of the Financial Services Commission of Ontario. 28. Licensed paralegals duly qualified, whether by passing a special examination or by holding a secondary licence, should be authorized to appear on an appeal before the Director of the Dispute Resolution Group of the Financial Services Commission of Ontario. 29. Section 398 of the Insurance Act should be amended to permit authorized licensed paralegals to appear before the Dispute Resolution Group of the Financial Services Commission of Ontario. 30. Licensed paralegals duly qualified, whether by passing a special examination or by holding a secondary licence, should be authorized to appear before the Ontario Labour Relations Board. 31. Licensed paralegals duly qualified, whether by passing a special examination or by holding a secondary licence, should be authorized to appear before the Ontario Workplace Safety and Insurance Appeals Tribunal. 32. Licensed paralegals duly qualified, whether by passing a special examination or by holding a secondary licence, should be authorized to appear before the Ontario Municipal Board. 33. Licensed paralegals duly qualified, whether by passing a special examination or by holding a secondary licence, should be authorized to appear before any other specialized board or tribunal of the Province of Ontario. Recommendations 34 to 36: Chapter VI Areas of Permissible Practice - Small Claims Court 34. Licensed paralegals duly qualified by passing a special examination should be authorized to appear in the Small Claims Court. 35. Licensed paralegals who are qualified to appear in the Small Claims Court should be authorized to take an appeal at the first level from a decision of that Court. 36. Clients represented by licensed paralegals should be entitled to costs in the Small Claims Court or on the first level of appeal from that Court. Recommendations 37 to 38: Chapter VII Permissible Areas of Practice - Provincial Offences 37. Licensed paralegals duly qualified by passing a special examination should be authorized to appear and prosecute and defend provincial offences in the Ontario Court of Justice. 38. Licensed paralegals duly qualified by passing a special examination should be authorized to appear at the first level of appeal from a conviction or acquittal on a provincial offence in the Ontario Court of Justice and their clients on such appeals may be awarded costs. Recommendation 39: Chapter VIII Areas of Permissible Practice - Criminal Offences and Criminal Pardons 39. Licensed paralegals duly qualified by passing a special examination should be authorized to appear in the Ontario Court of Justice only in the following specified Criminal Code summary conviction offences: * vagrancy; Recommendations 40 to 41: Chapter IX Areas of Permissible Practice - Family Law and Change of Name Applications 40. Licensed paralegals duly qualified by passing a special examination should be authorized to appear as duty paralegals in the Ontario Court of Justice and, if future regulations make it permissible, in the Superior Court of Justice. 41. Licensed paralegals duly qualified by passing a special examination should be authorized to prepare and file the necessary papers and to do all that is required in completing an uncontested divorce in circumstances which meet the following conditions: (a) where the parties have no children and no significant assets or the assets are jointly held, and where there is no need for, or there is no issue outstanding as to, spousal support and there are no outstanding collateral issues (for example, division of pensions); (b) where the parties have a separation agreement resolving all collateral issues with a certificate of independent legal advice executed within one year of the commencement of the divorce action; and (c) where there is a court order resolving all of the ancillary issues granted within one year of the commencement of the divorce action. Recommendations 42 to 46: Chapter X Areas of Permissible Practice - Wills, Powers of Attorney, Living Wills and Commissioner for Oaths 42. Licensed paralegals should be authorized to draw a simple will in the following circumstances: (a) where the assets consist of no more than the matrimonial home, bank accounts, life insurance policies, RRSPs, annuities and personal chattels; and (b) where the distribution of those assets is straightforward, for example, all to a spouse and if the spouse should predecease the testator, or if there is no spouse, to be divided in equal shares per stirpes among the children. 43. "Grandfathered" paralegals duly qualified by passing a special examination should be authorized to prepare a "simple" will as set out above. 44. Licensed qualified paralegals should be authorized to advise regarding powers of attorney and living wills, to prepare these documents and have them executed. 45. Licensed paralegals should be authorized to administer oaths and take affidavits. 46. Upon their attaining a licence, paralegals should be issued a seal under the Commissioners for Taking Affidavits Act, which indicates that they are licensed paralegals and are commissioners for filing affidavits in and for the courts in Ontario. Recommendations 47 to 48: Chapter XI Areas of Permissible Practice - Real Estate 47. Licensed paralegals should be authorized to act for a vendor on the sale of a residential property that is either clear of any mortgage encumbrances or subject to only one mortgage. 48. "Grandfathered" paralegals duly qualified by passing a special examination should be authorized to act for a vendor on the sale of a residential property that is either clear of any mortgage encumbrances or subject to only one mortgage. Recommendations 49 to 53: Chapter XII How Should Paralegals Be Governed? 49. The Province of Ontario should enact legislation for the regulation of licensed paralegals and delegate to a corporation which functions independently of the Law Society of Upper Canada and the Government of Ontario the responsibility of regulating paralegal practice. 50. The board of the corporation should be composed of 15 persons, and in the interim period during which the board becomes fully functional, the following appointment process should be in effect: (a) four members representing the Attorney General of Ontario should be appointed by the Attorney General of Ontario; (b) four members representing the public should be appointed by the Attorney General of Ontario; (c) four members representing independent paralegals should be appointed by the Attorney General of Ontario; (d) two members of the Law Society of Upper Canada should be appointed by the Attorney General of Ontario; and (e) one independent chairperson should be appointed by the Attorney General of Ontario. 51. Once the board is fully functional: (a) the four members representing the independent paralegals should be elected from their membership instead of being appointed by the Attorney General of Ontario; (b) two additional members representing licensed paralegals should be elected from their membership; and (c) the four members representing the Attorney General of Ontario should be reduced to two members. 52. The enabling legislation should provide that it is an offence for licensed paralegals to practise outside the areas specifically authorized for them. 53. Where a licensed paralegal practises outside specifically authorized areas, the governing body should refer the matter to the Attorney General of Ontario for prosecution. SUGGESTIONS Suggestions 1 to 2: Chapter V Areas of Permissible Practice - Immigration and Refugee Board of Canada 1. Licensed paralegals duly qualified, whether by passing a special examination or by holding a secondary licence, should be authorized to appear before the three divisions of the Immigration and Refugee Board of Canada in Ontario, namely the Convention Refugee Determination Division, the Immigration Appeal Division and the Adjucation Division. 2. The Immigration and Refugee Board of Canada should require agents appearing before them in Ontario to provide them with the evidence that they are licensed and have passed the special examination for the Immigration and Refugee Board of Canada. Additions 54. Licensed paralegals should be authorized to undertake the simple incorporation of private companies, where, for example, there is only one shareholder and one class of shares. 55. "Grandfathered" paralegals, duly qualified by passing
a special examination, should be authorized to undertake the simple
incorporation of private companies, where, for example, there is
only one shareholder and one class of shares. |
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