Wednesday, August 29, 2007

ACCESS TO JUSTICE IN ONTARIO?

In Ontario, there are about 2,000 of us that practice as Independent Paralegals. In Ontario, Independent Paralegals, who are not Lawyers, but provide services in a number of less complex legal areas, are permitted to practice independently.

Over the past thirty or more years, such Independent Paralegals provided services directly to the public in the following areas: small claims court, worker's compensation, no-fault accident benefits, immigration, uncontested divorce, simple incorporations, basic wills/powers of attorney, traffic tickets, minor criminal charges, among many others. However, over recent years, a number of Lawyers - primarily those in small or solo practices - began to complain about Independent Paralegals taking over certain aspects of their businesses and offering it to the public for cheaper. Instead of telling the public the truth about their motives (money), these particular Lawyers argued that Independent Paralegals are not regulated, not insured, not educated and therefore, not accountable to anybody.

Yes, that's true. For a very long time, Independent Paralegals were not regulated in a FORMAL way, although for the past twenty years, associations of Paralegals lobbied the government to enact some form of self-regulation for this profession. Members of these associations were required to carry insurance, adhere to a certain code of conduct and have a minimum level of education or relevant hands-on experience. So, to state that all Paralegals were uninsured, uneducated and unaccountable was not truly accurate. However, the government never made it mandatory for any Paralegal to join any of these associations - people were still able to practice as a Paralegal without any insurance or standards because they choose not to belong. Most Paralegals didn't like this either.

The then Liberal government of the day in 1989 appointed Professor Ron Ianni, then President of the University of Western University, to review what it called the "paralegal problem" and for the Task Force to come up with ideas on how Independent Paralegals can be regulated, if at all. The Report, later affectionately known as the Ianni Report upon its 1990 release, consulted broadly with stakeholders on the issue, including Lawyers, Paralegals, schools, clients of Paralegals, etc. and concluded that Independent Paralegals do need some regulation, but did emphasize that over-regulation was an inappropriate balance. At that time, the Law Society of Upper Canada, Ontario's body that presently regulates Lawyers, did not express an interest in regulating Paralegals, as they felt it would be a conflict of interest. Ianni recommended against it anyways, citing that some type of government regulation might be appropriate, which would include licensure, training and certification.

The Ianni Report disappeared like a puff in the wind and nobody mentioned it anymore, except to make repetitive references to the "problem" over time. Under the succeeding NDP government, a Private Members' Bill, the Legal Agents Act (or Bill 42), was introduced in an attempt to license and regulate traffic court agents. This initiative sprung in response to the famed Lawrie/POINTTS decision, in which the Ontario Court of Appeal issued an interpretation of the word 'agent' in the Criminal Code to include paid agents and that wherever permissable by legislation, paid agents would be allowed to appear in a judicial forum on behalf of clients. This court fight started when the Law Society attempted to charge Brian Lawrie, founder and then President of POINTTS, with the unauthorized practice of law. Lawrie eventually won when his practice was legalized, but the "paralegal problem" continued to remain.

The Law Society continued to prosecute several Independent Paralegals who were practising in other areas of law, such as uncontested divorces, wills and other "solicitor" type work. Maureen Boldt and her business, Boldt Paralegal and Mediation Services, was particularly a *hot* target in the 1990's and continues to be today. Unfortunately, Boldt signed an undertaking to agree not to practice law in certain areas, but continued. The Law Society used this to successfully prosecute her in the end. Others have also been targeted for doing similar work. I am aware of entire practices that have had to close down, with their principals ending up having to accept low paid work or nothing at all after they shut down their business ... as anybody who is self-employed knows, you can't get Employment Insurance from the closure of your business. Others quietly moved to other areas of law where Independent Paralegals are permitted to practice or worked as an employee in a legal firm.

I am in no way defending or not defending the targets in these cases, but I am illustrating historically what has become a long-entrenched symptom of poor and declining access to justice in this province. These entrepreneurs stepped in when Lawyers either would not or could not provide certain services at a reasonable fee to the general public. In fact, there were many Lawyers before that regularly referred prospects to Independent Paralegals because they knew that their own office either did not get involved in certain uncomplicated matters or could not afford to provide the service at a rate consumers can pay. Many of these Lawyers did have personal contacts in the community as well to refer these clients to - Independent Paralegals they knew and trusted. However, detractors of Independent Paralegals continued to squawk ... they complained they were losing income as a result of being a sole practitioner or involved in a small firm with Independent Paralegals being part of the cause ... (which to date, nobody could really prove, but this is how Paralegals get scapegoated).

Under the Progressive Conservative government of Mike Harris, several attempts were made to find a balance between access to justice and regulation of the providers. Then Attorney-General James Flaherty appointed esteemed former Supreme Court Justice Peter Cory to conduct a review on the regulation of Independent Paralegals, then affectionately known as the Cory Report. He held a series of consultations in Toronto inviting all stakeholders to participate in discussions and roundtable style hearings. He also accepted written presentations and research by presenters, as well as external consultants. After the release of the Cory Report, there were some major recommendations that if implemented would have led to a rational form of regulation for Independent Paralegals, including a recognition that Independent Paralegals had an important role to play in many areas of law where a substantial number of people are representing themselves, such as family law. Cory, like Ianni, rejected Law Society governance on the basis that it was a conflict of interest. Cory instead recommended some type of public body at arm's length, designed in a similar manner to Legal Aid Ontario, to oversee Independent Paralegals. Again, this Report disappeared like a cloud of dust in the night.

The Progressive Conservatives did not stop trying, however. They asked the Independent Paralegals to form a single umbrella organization through which continued discussions can take place with other stakeholders, like the Law Society of Upper Canada and Ontario Bar Association. The Professional Paralegal Association of Ontario (PPAO) was born. Originally mandated to equally represent all six paralegal interests on its Board, the PPAO was going to be the spokesperson for the regulation of Independent Paralegals. This organization originally included two members from the Institute of Law Clerks of Ontario (ILCO), Paralegal Society of Ontario (PSO), Institute of Agents at Court (IAC), POINTTS, Ontario Association of Professional Searchers of Records (OAPSRS) and the Ontario Prosecutors Association (OPA). With the downloading of provincial offences courts to respective municipalities, an increase in the number of non-Lawyer agents working for municipalities opened the door to the OPA. For awhile, this worked well.

However, as "talks" continued between the PPAO and the Lawyer associations, a certain silence was in the air with regards to general knowledge of what was being discussed from the standpoint of Independent Paralegals and possibly even individual Lawyers. A so-called Framework for Regulation was approved and released to the public in 2002, which was the start of proposed regulation by the Law Society of Upper Canada and defined restrictions as to what Independent Paralegals can offer, as well as a new style of "partnership" between Lawyers and Paralegals with regards to completion of so-called "solicitor work" by Independent Paralegals. Neither the Lawyer associations or Paralegal groups liked this Framework, even though it was continuously pushed by each side of the discussion to their respective constituencies.

In 2002 - 2004, there were numerous developments in the work of the Professional Paralegal Association of Ontario (PPAO), and presumably the work of various Lawyer associations. During this period of time, something happened and the voice of the Independent Paralegal got lost. Town Hall meetings were organized by PPAO to introduce and presumably receive feedback on the various phases of these discussions. As somebody who had been in attendance at all but one of these Town Hall meetings, I can't remember a single Independent Paralegal in attendance actually agreeing to the Framework or any watered down version of the same, or even the basic idea of regulation of Paralegals by the Law Society of Upper Canada. Nevertheless, the Progressive Conservative government was tossed out and replaced by the current Liberal administration in October 2003, which in my view made things even worse.

The whole issue here is not that Independent Paralegals hate Lawyers. Many of us work closely with Lawyers and have no trouble working with them. I personally regard many Lawyers to be within my own professional community and networks. It is that Independent Paralegals are naturally afraid of losing what little they actually have left of their businesses. Many are too educated to work as legal secretaries or even legal assistants, although they may not quite have the law degree of a Lawyer. Where else could they work, if they cannot offer basic services independently? With increased technology, there is less need for legal secretaries in law firms and other types of legal support staff tend to be overworked and underpaid. None of these "discussions" were ever intended to put Independent Paralegals only under the supervision of Lawyers, as two contrasting events also took place while all these "discussions" were happening.
First, Humber College was the first educational facility to offer a four-year degree program in Paralegal Studies. This program, if you looked at the brochure, is very comprehensive and broad-based in terms of the knowledge imparted on the Law. Students graduating from such a program would not join a law firm to earn only $25,000 - $30,000 a year ... particularly with the way student loans have skyrocketed in the past ten years, but somebody is going to want to employ these people. Second, legal publishers, insurance companies, conference organizers and other businesses that used to only cater to Lawyers now cater to Independent Paralegals ... software companies are coming out that actually assist people in researching legal precedents, search firms are registering Independent Paralegals on the web to enable them to search information on corporations or locate runaway defendents, etc. These firms would not be marketing their offerings in this way if they did not see potential.

As time went on, the associations that made up the Professional Paralegal Association of Ontario began to question how decisions were being made and how much Independent Paralegals were truly being consulted before the PPAO took on any kind of position. At the same time, the executive committee of the PPAO began to feel it was useless fighting and that the Law Society was inevitably going to be our regulator - period. For awhile, the PPAO was taken to task by members of the associations and forced to take a more independent approach, which is why this organization developed a 'war chest' and used the money to hire a lobbyist to help sell self-regulation to the government of the day. However, despite the surface claims by the PPAO of their push for self-regulation, many Independent Paralegals felt they were still complicit in creating the end result, which was Bill 14, Access to Justice Act.

I can't personally attest to whether or not the PPAO itself actually pushed for Law Society regulation or just simply tried to find a compromise from among a set of very bad choices forced on them by the powers that be. During the period between 2004 - 2005, there were many attempts to "take over" the PPAO by the other associations, which by this point have become invisible in their landscape. The PPAO had long since opted to include individual members who were not members of any of the other associations and no longer required that two members of each serve on its Board of Directors. Instead of being an umbrella association or spokesperson for all the associations, the PPAO essentially became just another Paralegal association.

This unfortunately was not what the government saw. They continued to treat the PPAO as THE spokesperson for all Independent Paralegals, even though its membership was fast declining from among the associations. When other associations attempted to have an audience with Attorney-General Michael Bryant or his Parliamentary Assistant, David Zimmer, they were given the brush-off and told to work through the PPAO. In addition to this brush-off, representatives from the associations were basically told it was going to be the Law Society regulating them, whether they liked it or not. Democracy in this present government suddenly turned on its head and our elected representatives were now telling us what to do.

In the fall of 2005, it became clear that with the introduction of Bill 14, Access to Justice Act, change wasn't going to take place either in the PPAO or the Attorney-General's office. The other Paralegal associations began to petition and members therein exercised their votes and proxies and on January 14th, 2006, the Professional Paralegal Association of Ontario, was officially dissolved by a near unanimous vote by its members. Only one member voted against the resolution. With the dissolution of the PPAO, the other associations took their own stance against Bill 14 but were primarily ignored. If you read the minutes of provincial Hansard, the word for word proceedings of the Ontario Legislature, particularly during the second reading debate of Bill 14, one can see that even in April 2006, several months after PPAO's dissolution, the Liberal supporters of Bill 14 continued to meet with "representatives" of this group and refer to them favourably in their comments. This is despite the fact that members of the Paralegal Society of Ontario, Paralegal Society of Canada (loosely, a federal counterpart to PSO) and other groups attended the Legislative Assembly and sat in the Visitors' Gallery and even wrote and met with various representatives to ask them to reconsider Bill 14.

After its second reading was passed, the Bill soon went to Public Hearings through the Standing Committee on Justice Policy. One can access a transcript of those Hearings by visiting the Ontario Legislative Assembly's website and double clicking on Committees and scrolling down to the Standing Committee on Justice Policy. The way the Legislative Assembly's website was redesigned allows people to scroll through the daily transcripts of each Committee to find the particular Bill they are looking for. Look for Access to Justice Act, Bill 14. There were some Hearings in the spring of 2006, while other days were booked in August and September 2006. I personally watched and reviewed the transcripts of every single day these Hearings took place.

Presenters were divided into three camps. The first camp included Lawyers and Lawyers' associations that basically supported the intent of Bill 14, but many had smaller issues within the Bill itself. Some of these issues included the need to clearly differentiate between Independent Paralegals and Lawyers when the Law Society Act is redrafted, as well as to specifically state IN LEGISLATION what an Independent Paralegal can do and cannot do. A few commented on other aspects of Bill 14, which included issues around the appointment of Justices of Peace, changes in the Limitation Act, changes to settlement provisions in medical malpractice cases, etc. The second camp of presenters on the "Paralegal issue" included organizations of other professionals that did not want to get swept up in the definition of "practice of law" and end up having to be regulated twice. These groups included bankers, real estate agents, appraisers, unions, etc. who all think they do legal work, but they don't really. My final feedback on that question was only to make sure these professionals act only within their professional boundaries and not try to act outside of them ... yes, I've seen social workers and property managers appear on behalf of "clients" in court and that certainly needs to stop. The third camp included Independent Paralegals and their supporters (such as clients or organizations that work with Independent Paralegals). Out of dozens of presentations from this camp, there was a grand total of three presentations made by Paralegals, two of which included presenters appearing in pairs ... that were in favour of Bill 14. The grand total of five presenters that supported Bill 14 included Michelle Hague, Stephen Parker, Paul Dray, Margaret Louter and Brian Lawrie.

Even among these five Paralegal presenters that generally did not have problems with Law Society regulation, they still wanted to ensure that 'Paralegals' were equal to 'Lawyers' in the new Act and wanted to ensure we were not treated as second class. The rest of us had a running bet about who the Attorney-General would pick to sit as Paralegal representatives on the Standing Committee on Paralegal Services, which is the part of the Law Society that was created by this Act that would ultimately regulate us. This Standing Committee would include the five Paralegals appointed by the Attorney-General, five Lawyers appointed by the Law Society and three persons who were neither Paralegals or Lawyers appointed by the Law Society. I bet successfully that the five above named persons would be appointed ... it didn't come as much of a surprise to me, because governments generally want people in these types of positions to support the intent behind the roles and responsibilities of these positions. While I have no personal issues against any of the five individuals selected, I did have a concern that one of the members is not an Independent Paralegal but works as a Law Clerk. If this person were to be appointed, I would argue they should have been one of the three persons who were not Independent Paralegals or Lawyers, but unfortunately for our government, they didn't do that.

There were dozens of other Independent Paralegals, as well as supporters, who spoke clearly against Bill 14. Henceforth, regardless of what was said about exemptions, concerns over conflict of interest, perceived restrictions on practice and so forth, the government charged right ahead and did what it wanted regardless. What really told me this was on one of the Hearing dates, despite many people being turned away on the basis of there being "no more room", an unscheduled guest appeared on one of the September 2006 slots. This guest was Dylan McGuinty, none other than our Premier Dalton McGuinty's brother who also happens to be a Lawyer and in his time slot, most certainly went on to rip Independent Paralegals up and down. Dylan McGuinty, as well as many of the other Lawyer guests that appeared, claimed they spent some of their time "correcting" mistakes made by Independent Paralegals. Henceforth, I can also attest to many times that I, as well as many of my Independent Paralegal colleagues and other Lawyers, have corrected work done by Lawyers! So, Dylan, what was your point again?

The Bill got passed in a hurry during its third reading in the Legislature. Both the NDP and Progressive Conservatives voted against Bill 14, while the Liberal majority rammed it through. While just about everybody, including Independent Paralegals, believe Paralegals should be regulated -- 99.99% of them think the Law Society is not be the appropriate body. Oh well, Michael Bryant got his way and the Bill was proclaimed and in effect as of May 1, 2007. On April 24th, 2007, the Law Society of Upper Canada organized its own province-wide teleconference to answer questions of Paralegals about the pending regulation under its auspices, what they needed to do, if they qualified under grandparenting provisions and what were "transitional" provisions, and so on. This was hardly one week before the May 1, 2007, start date, upon which if ANY Independent Paralegal wanted to continue to practice, would have to: (a) carry sufficient Errors & Omissions Insurance; (b) adhere to the Paralegal Code of Conduct; and (c) practice only in the permissible areas of Law outlined on the Law Society's website. Further, all Independent Paralegals or prospective Independents under the 'grandfathering' or 'transitional' categories have to apply to the Law Society for a screening (e.g. good character, experience, etc.) and then write an exam, scheduled to be sitting on January 17, 2008, in Toronto.

I have no problems with any of this. In fact, I am one of those Independent Paralegals that have been wanting regulation for a long time. No, I don't think the Law Society was the right choice, but given that Michael Bryant forced the issue - we have to try to make it work for us. However, I have many concerns about the way this regulation was pushed through. About half the Independent Paralegals practiced the wrong kind of law and will therefore not qualify for grandparenting. I know at least three at this given moment that have had to close their doors and because they had no other employment or income options, turned to Ontario Works. They disappeared off the radar. I anticipate many more may end up there before May 1, 2008, when the first set of Independent Paralegals get licensed. A few others, including many high profile Independent Paralegals got jobs outside the legal field altogether. A couple of the lucky ones were able to find suitable work for an employer in the legal field.

Many Independent Paralegals remain. I am one of them. Some of us have already got their applications turned in to the Law Society of Upper Canada and others, including myself, are in process of getting this done. Again, this is not the issue here. When we're licensed, we will still be able to do what we've always done, at least for those of us practising in permissible areas. What gets me about this whole thing is the costs ... the fees the Law Society is charging for each step of our licensing process are very steep for many people. Many Independent Paralegals may not be able to complete this process due to the fees alone. The average income of an Independent Paralegal is between $24,000 to $30,000 a year. Is it really fair to impose approximately $3,000 in additional direct costs, plus another $5,000 in indirect costs on each of these people, whose incomes are at best, modest? Further, with regards to permissible areas of practice, some regions fare better than others. In the Toronto area, there are many head offices and large companies that do their dealings through the Greater Toronto Area. Independent Paralegals have much more opportunities within the GTA region to develop contacts with high volume clients than they do, say, in Timmins or Sault Ste. Marie. Niagara Region is not much better. So, Independent Paralegals are punished for where they live and work, even though their clients need them just as much in Timmins, Sault Ste Marie, North Bay and Niagara Falls, as they do in Toronto.

While I cannot definitively make predictions based on what is currently in place, as the full impact of regulation has not been felt yet, I do have many concerns about restricted areas of practice, regions of practice and licensing/regulation costs. The least that Michael Bryant could have done is use his head when he put this Act together to make sure there will be Independent Paralegals available throughout the province, instead of just in high volume areas like Toronto and Mississauga. In other words, he could have issued different levels of licenses, so Paralegals that don't have a lot of Landlord and Tenant work in their regions (like I get called on one of these cases once or twice a month at best, because 75% of people in Niagara own their own homes) can practice in another area, like family law duty counsel, filing uncontested divorces, setting up a search house (which can be done anywhere), doing incorporations, etc. Small Claims Court also needs to increase its jurisdiction from $10,000 to perhaps, $25,000, and yes - the Judges that serve this Court should be paid a lot more too!

There should also be access to telephone hearings for certain Tribunals, so that I can represent anybody across Ontario, for example, on disability claims. At present, I do travel for some of these cases, but teleconferencing access would make it possible for me to pick up more clients and do more for them. There should also be access to salaried positions to do the type of work I do, because much of what I do falls in the gap between Legal Aid and "regular" cases. For example, I should be able to do a certain number of cases under a specific amount of money paid to my firm by the government (and I can report on the number of cases opened, progress and closures, etc. without disclosing confidentiality so they know people are getting served). I can then do other cases that are not on behalf of low income, but the client can pay on a private basis. This way, not only will there be competent Paralegal services available to people, but there will be a reduction in fees or no fees for those that cannot afford this type of service, but cannot access Legal Aid. Legal Aid is very limited and restricted in the types of services they fund and most Lawyers do not take Legal Aid cases anyways.

Finally, the Attorney-General should provide the Law Society of Upper Canada with money for "start up costs" for its task in regulating us. Although the Law Society accepted this task, they are not getting paid for it by the government. That is very foolish, as now the Law Society is forced into a position where it had to hire a number of additional staff, re-jig its administrative systems, upgrade its computers and phone lines, as well as its website, in order to accommodate incoming Paralegal members. Lawyers certainly shouldn't be billed extra so that the Law Society can regulate us. They pay enough. Independent Paralegals cannot afford the full freight, as we do not on average earn as much as Lawyers do. Doesn't the Attorney-General even read the reports about the troubles faced by sole practitioners and Lawyers in small firms? These people feel they are not making enough money to cover their own regulatory costs ... why would the Attorney-General think WE can afford it, when we make even less?

So, guess what? Those of us who intend to continue to practice had to re-assess our fees. I cancelled most of my subscriptions and non-mandatory memberships and cut back other expenses, and increased my hourly rate and most of my flat rates. This cost me about 15% of my clients, but the other ones will pay the increase. I think this has to do with being Canadian, how we all can be taxed to death and we never complain. However, I think this is a very serious wrong that is being imposed on us by the government. If the Attorney-General wants us to continue to provide accessible, affordable legal services, why is he forcing us to pay through the nose just to keep our doors open? How about all those businesses, such as software companies, reporting services, etc. that used to make a good profit off of us? Now, they are making less money because I know I am not the only one who had to cancel a number of subscriptions. I will re-think it next year when regulation is firmly in place and I know where I stand, but right now, it just seems that no matter how much money comes in, it goes out just as fast and I am still not making any money. This simply sounds like another Liberal job creation project to me and another way to put more people on welfare.

But then again, who am I to know? Isn't it the Attorney-General's mandate to work with us, as well as the Lawyers, to make sure there is access to justice in this province? After all the experience I had working with Paralegals, serving on boards and lobbying the government over this issue, I am really having my niggling doubts that access to justice was truly the goal of Bill 14 and the regulation of Independent Paralegals.

Until then, I have to do what is required to keep my doors open. However, as I told all of my clients, I am not finished with this topic yet. I've only just begun.

9 comments:

Harry said...

Dear Browneassociates,

Thanks for this enlightening article on the behind-the-door dynamics surrounding this awful piece of legislation. I'm not sure if you are still following this issue, but there is a constitutional challenge in the works and it would be most valuable to get in touch. Please email or visit our website for more details: www.harrykopyto.ca

Amy said...

Hello,

Thank you so much for your in-depth examination of this process in Ontario. I'm in Alberta where Independant Paralegals are not regulated, so this article provided some interesting insight.

I was wondering what it's like now for Independant Paralegals, since it's been a few years since Bill 14 took effect. Were there other costs that arose that you didn't anticipate (or that your government and regulators didn'ta nticipate)? Did the Act actually havea ny effect on access to justice after all?

Thanks so much for the article!

-Amy

The Advocate said...

Hi Amy,

Since Bill 14 has taken effect, the costs of running a paralegal office has gone up substantially. In order to earn sufficient funds from a practise to be profitable, you need to specialize in a particular area such as traffice court, or landlord and tenant, and live in a sizable urban area.

The cost increases come from annual LSUC dues, as well as ongoing requirements for technology, research, upgrading, continuing professional development, insurance and other things. Not all of these costs are *bad* for the paralegal, as the LSUC has been opening up new services here to paralegals, and offer excellent member resources and workshops, many of them low cost. However, by our costs increasing, there is a contingent of our community that can't even afford paralegal fees.

Also, it is very difficult and demanding in this field, as a minority of clients "expect" freebies from us, bounce their cheques, or take forever to pay, which just costs us more stress and aggravation, as our costs and bills still come in and have to be paid on time. While I do enjoy the work, I don't like doing it as self-employed for these reasons.

Many licensed paralegals have tried to seek work in law firms, but only a minority seem to find their place there, as most still do not know what to do with us, as a non lawyer is either a law student, a secretary or legal assistant. Non lawyer staff are not expected to handle files on their own, and these tasks are instead handed to associates and law students.

Amy said...

Hi,

Thanks for the additional information. Wow, seems like a bit of a rough road for you and your colleagues.

Since one of the justifications for Bill 14 was to protect the public/consumers from "bad" paralegals (e.g., those who acted unprofessionally), do you think it actually accomplished this at least? Or was this ever really an issue in the first place?

Thanks again,
Amy

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