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Representation - Paralegal Scope of Authority

The Law Society Act (LSA) draws the distinction between lawyers (with the concept of "legal advice") and paralegals (with the concept of "legal services"). That is, paralegals can only offer 'legal services', while 'legal advice' is a larger concept that encompasses the complete range of activities that lawyers traditionally engage in. Lawyers can, subject to practical limits of competence and ethical limits of conflict of interest - effectively represent anyone in Ontario.

When considering the scope of authorized (ie. licensed) paralegal activity we should consider that the concept of 'legal services' came after that of 'legal advice' - 'legal advice' was already the standard that governed the issue of 'unauthorized practice' - which well pre-dated paralegal regulation. The focus on 'legal services' arose with the effort to legitimize and regulate paralegals back in the late 1980's (SS: in fact I was an pre-regulation paralegal, I remember back then getting an Ontario questionnaire about the effort to regulate).

When we get into the nitty-gritty of the definition of 'legal services' though, the LSA attempts to draw what I think are untenable distinctions. To start with, the definition of 'legal services' is "the application of legal principles and legal judgment with regard to the circumstances or objectives of a person" [LSA 1(5)] - which is desperately vague and essentially indistinguishable from the practical results of providing "legal advice" - which is the hallmark of what lawyers do and have been doing for hundreds of years. When the definition of 'legal services' is further articulated [at LSA 1(6-7)] we even see that the term "advice" is directly used: ie. "a person provides legal services if the person .... 1. Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person" [LSA 1(6)1].

It's only when we get into the guts of a paralegal's authorized representation - which speels out which specific proceedings they can (and necessarily can't) do - that we see that paralegals are simply inferior legal professionals, being relegated to inherently small-dollar cases [LSO By-law 4, s.6(1-2)]:
  • Small Claims Court;

  • Provincial Offences offences;

  • Summary Criminal offences;

  • administrative tribunal proceedings; and

  • mediation, evaluation, arbitration and a range of statutory accident benefits (SABS) auto insurance dispute resolutions.
Add in ancillary negotiation and document-drafting for these proceedings and you've got the essential paralegal scope of practice.

These representative and ancillary authorities are supported by several forum-specific statutes that exempt paralegals (and lawyers for that matter) from being excluded by the tribunal or court [CJA 26 (Small Claims Court)], POA 50(3) (provincial offences) and SPPA 23(3) (administrative tribunals)] for incompetence. The effective of these provisions is to allow the sitting tribunal member or (deputy-)judge to exclude impugned lay-advocates.

In my opinion, the paralegal licensing regime is essentially an effort by the larger legal profession to mitigate it's inability to provide affordable service to Ontario society. Their scope of practice is all about relatively-minor aspects of the legal system, both civil and criminal (or quasi-criminal) - and of course administrative law, that great statutory replacement for serious law which is it's lame own effort to address the consequences of advanced capitalism.

[last edit 12 Nov 2022]


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Last modified: 12-11-22
By: admin