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Representation - Paralegal and Lay Representatives - General. Caruso v. The Law Society of Ontario
In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act.
In these quotes the court sets out the licensing regime of Ontario paralegals, which is closely related to that for lawyers:[1] The central issue raised in this application is whether the processing and filing of immigration applications on behalf of clients is within the Applicant’s scope of practice as a paralegal licensed by the Law Society of Ontario (LSO).
[2] The Applicant takes the position that he is authorized to provide such legal services pursuant to s. 91(2) of the federal Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[3] The Applicant takes the position that, properly interpreted, there is no LSO by-law that limits the authorization set out in the IRPA. Accordingly, the LSO’s policy that purports to limit his scope of practice in matters relating to immigration to providing legal services in connection with proceedings or intended proceedings before the Immigration and Refugee Board (IRB) is, therefore, not authorized by the LSO by-laws.
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Law Society Act
[11] Lawyers and paralegals in Ontario are governed by the LSO. The regulation of lawyers by the LSO (formerly the Law Society of Upper Canada) dates back to 1797: “An Act for the better Regulating the Practice of the Law” 1797 (U.C.) (2nd Sess.), c. 13.
[12] The regulation, licensing and discipline of paralegals by the LSO only began in 2007 pursuant to statutory amendments enacted in 2006 (Access to Justice Act, S.O. 2006, c. 21, Sched. C). Ontario was the first province or territory to licence paralegals and remains the only province or territory in which paralegals require a licence.
[13] Section 26.1(1) of the Law Society Act contains a broad prohibition that “no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario”.
[14] Only lawyers are licensed to practice law. Paralegals are licensed to “provide legal services”. The Law Society Act defines “the provision of legal services” in ss. 1(5)-(7):Provision of legal services
(5) For the purposes of this Act, a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.
Same
(6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:
1. Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person.
2. Selects, drafts, completes or revises, on behalf of a person,
i. a document that affects a person’s interests in or rights to or in real or personal property,
ii. a testamentary document, trust document, power of attorney or other document that relates to the estate of a person or the guardianship of a person,
iii. a document that relates to the structure of a sole proprietorship, corporation, partnership or other entity, such as a document that relates to the formation, organization, reorganization, registration, dissolution or winding-up of the entity,
iv. a document that relates to a matter under the Bankruptcy and Insolvency Act (Canada),
v. a document that relates to the custody of or access to children,
vi. a document that affects the legal interests, rights or responsibilities of a person, other than the legal interests, rights or responsibilities referred to in subparagraphs i to v, or
vii. a document for use in a proceeding before an adjudicative body.
3. Represents a person in a proceeding before an adjudicative body.
4. Negotiates the legal interests, rights or responsibilities of a person.
Representation in a proceeding
(7) Without limiting the generality of paragraph 3 of subsection (6), doing any of the following shall be considered to be representing a person in a proceeding:
1. Determining what documents to serve or file in relation to the proceeding, determining on or with whom to serve or file a document, or determining when, where or how to serve or file a document.
2. Conducting an examination for discovery.
3. Engaging in any other conduct necessary to the conduct of the proceeding. [15] Also relevant is subs. 1(8), which exempts specified persons conducting specified activities from the definition of “practicing law or providing legal services”. Of relevance to this case is subs. 1(8)1, which provides:(8) For the purposes of this Act, the following persons shall be deemed not to be practising law or providing legal services:
1. A person who is acting in the normal course of carrying on a profession or occupation governed by another Act of the Legislature, or an Act of Parliament, that regulates specifically the activities of persons engaged in that profession or occupation. [16] Section 27(1) of the Law Society Act provides for classes of licences to be prescribed by the LSO in its by-laws:Classes of licence
27 (1) The classes of licence that may be issued under this Act, the scope of activities authorized under each class of licence and any terms, conditions, limitations or restrictions imposed on each class of licence shall be as set out in the by-laws. [17] Finally, s. 62(0.1) 4 of the Law Society Act gives the LSO broad authority to make by-laws governing the classes of licences that may be issued, including the scope of activities authorized under each class of licence:62(0.1) Convocation may make by-laws,
4. prescribing the classes of licence that may be issued under this Act, the scope of activities authorized under each class of licence and the terms, conditions, limitations or restrictions imposed on each class of licence; [18] Pursuant to its authority under s. 62(0.1) 4 of the Law Society Act, the LSO enacted By-Law 4, in 2007. That provision is at the heart of this legal dispute.
[19] Paralegals hold a Class P1 licence. Section 6(2) of By-Law 4 prescribes the scope of practice for paralegals: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. [20] By-Law 4 defines “proceeding” as a “proceeding or intended proceeding” before certain bodies, including “a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament”.
[21] If a legal service does not fall within a paralegal’s scope of practice under By-Law 4, it is proscribed by s. 26.1(1) of the Law Society Act.
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