Last December, the province announced a comprehensive Social Assistance Review. This is part of the all party supported Poverty Reduction Act, passed approximately two years prior. The purpose of this review is to achieve the following objectives:
Review Objectives
The review commission will create a concrete action plan to reform Ontario's social assistance system. A reformed system will:
■help get people back to work
■be part of a larger income security system that includes municipal, provincial and federal programs
■share responsibility for improving the outcomes of low-income Ontarians with municipal and federal governments as well as the people who rely on social assistance
■be simple to understand and access, and provide people in need with basic income support in a fair and equitable way
■work well with other municipal, provincial and federal programs outside of social assistance - including education, training, housing, child care and health benefits - to support employment
■respect the autonomy, responsibility and dignity of individuals and recognize that clients are best placed to decide how to spend their money to meet their needs
■be efficient, financially sustainable and accountable to taxpayers, and
■meet its intended purpose as a system of last resort
Unfortunately, there is no stated objective to reduce poverty among those that receive, or must rely on these social programs to survive. Also, while a stated objective, the present system does more to discourage work than it does to encourage and maximize the benefits from paid work for such individuals and families.
Among my colleagues, there is as much fear and trepidation as to what this review might recommend, or result in, as there is excitement. This concern was outlined in a previous blog entry of mine. Treating persons with disabilities as part of the welfare system is the first biggest mistake of our social safety network, as this effectively prevents individuals from forming families and those with families from getting ahead financially.
As of the time of the 2006 Census, 68.6% of all families consist of two married persons, while an additional 15.5% of families in the 2006 Census were living in a common law relationship. Accoding to the Ministry of Community & Social Services, as of February 2011, 77.3% of the entire ODSP caseload consists of individual persons living alone, while an additional 8.75% are single parents with dependents under the age of eighteen years of age. This means approximately 84% of ODSP recipients are unattached, while a roughly equal number of non-recipients are attached in some way.
According to the National Council of Welfare, the greatest risk of poverty falls on to those who are unattached. When risk of poverty was selected by family type, unattached individuals, married couples and families, were compared, unattached individuals were at least five or six times as likely to live in poverty than those who were attached, or were a part of a family.
One would think logically, then why don't more ODSP recipients get married or involved in a common law union? The answer is obvious, if you are either one of the many unattached ODSP recipients, or one of the 16% of the caseload that is part of a marriage or common law union. If one member of the couple works, their income cannibalizes the recipient's income proportionately, regardless of whether the recipient has earnings of his or her own or not. The non-disabled spouse is obligated to fully support the disabled spouse to an extent that is beyond what is required by law in non-welfare situations. For example, if the disabled spouse was in receipt of worker's compensation, CPP Disability, Long-Term Disability, or any other income, even earnings, these sources of income are completely unaffected by the non-disabled person's income and assets, even though in those cases, the non-disabled person has an equal obligation under law to support their spouse. That means the working spouse goes to work, gets taxed on every dollar they make, and after that, they lose an additional 50% of their income to ODSP. In effect, they are paying more taxes than are required of millionaires!
If a spouse wants to bring their family out of poverty, they must either work in a job that pays them at least $70,000 or $80,000 a year, with benefits, or work the equivalent of 2.5 jobs to keep their family OFF benefits. Conversely, the person with the disability loses more and more of their independence the more money their spouse earns. This is setting people up for some pretty horrible situations: Many times, spouses do not feel obligated to report their income to ODSP, and thus will not disclose their income to their disabled spouses and thus will not declare their income, getting the disabled person in trouble with ODSP. Henceforth, this type of intrusion in the family unit results in a large number of break-ups. In virtually all of the break-ups I have seen for this reason, resulted in ODSP forcing the non-disabled spouse, now separated from them, to pay support - even if they have to sue. Now the non-disabled spouse does not only have to support themselves, they now have to support a second household, while the disabled person does not net a single penny more than they would if they were on ODSP alone.
When this issue is raised in some parts of the community, some common retorts come back about why should well-paid lawyers or teachers or business people be able to keep all of their income if they marry somebody on ODSP? The answer is simple. These people get to keep all of their income if their spouse is working, is on WSIB, is on CPP, is on LTD, or whatever else, apart from ODSP. The tax system takes care of any alleged inequities. If they split up with their ODSP recipient partner, they would still have to pay support as they always would have, regardless of the lower income spouse's source of income. Under the current law, working spouses are required to do more than their obligation under family law, and suffer greater penalties if the relationship does not work. That is why there are so very few people married or living common law that receive ODSP. Thus, their opportunity to escape poverty by marrying somebody is closed to them.
Self-employment is often an option for persons with disabilities that cannot fit in the regular workplace. Many people who start their own businesses carry on and become quite well off, as a result of their own efforts and subsequently, the business supports them. Unfortunately, for those in receipt of ODSP, the rules prohibit any moves that can help get a recipient out of poverty. The self-employment directive, or Directive 5.4, has been set up to keep a recipient and/or their family in poverty and relying on ODSP in perpetuity. Less than 2% of those on ODSP are receiving self-employment income (reports from Ministry sources). Many people who were self-employed have stopped working in their businesses, once the barriers put into place by ODSP are discovered and affect them.
First, the self-employed person cannot hire anybody to assist them. The person is supposed to be the sales person, the accounts recievable, accounts payable, receptionist, researcher, delivery person, service provider, etc. For businesses beyond being a dog walker, babysitter, crafts person, or writer, the business is going to need to grow to accommodate increased business and service demand. A business owner can't tell its customers that "No I can't serve you because if I do, I will need to hire somebody else to help me and I am not allowed to, so I have to keep my business small and non-profitable". First, a business person would be stupid to admit this, as customers would not patronize a business that is known to be operated by somebody with a disability ... due to stigma. Second, this business is not permitted to write off expenses to attend networking sessions with peers, or to purchase career related clothing to help present a positive and business like image to their customers.
If the business person is any good, the customer base WILL grow, and it is beneficial to ODSP for it to do so, as over time, the earnings will increase and in many cases, eventually take the person and/or their family off ODSP. By sticking to the original directive, the person ends up working very long hours every day, often risking exhaustion and then possibly compromising product or service quality as a result of not having paid help to take care of the administrative matters. In a decent business, the telephone might ring twenty to twenty-five times a day. There may be as many as thirty to forty e-mails. Somebody needs to respond to them, or the customers calling or emailing will be upset. However, responding to the calls or the email does not result in billable time, so the time spent doing these items takes away from time that is paid.
ODSP's objection is they don't want taxpayers to subsidize a business. This objection is moot given multi-billion dollar handouts to corporations each year, as well as regularly FUNDED programs for consumer/survivor initiatives, as well as a number of other "community economic development initiatives". Any employee funded under a business operated by an ODSP recipient would be paid for from the business' earnings, unlike the consumer/survivor businesses, such as those run or started by groups like OCAB, or Ontario Council of Alternative Businesses. While this is not an objection to these types of organizations, the government needs to be consistent with its policy applications and objections. If they do not want to let ODSP recipients that operate private businesses hire employees, then stop handing out money to banks, insurance companies, automakers, etc. and discontinue funding for all alternative businesses.
Because the above actions are not going to stop for various policy-based reasons, then the rule against hiring employees must cease.
With this policy in place, we are forcing vulnerable persons to work very long hours, completing all tasks associated with the operations of a business, and replete with limitations imposed on them by their disability. They are expected to be superhuman. Even people without disabilities that operate a business have their limits, and will definitely seek to hire a helper at some point when their business starts to grow. Instead of deducting the money paid out as 100% and thus, risking the family's base income, ODSP should connect these self-employed persons to business consultants to help ensure they hire the right kind of help, obtain the best marketing assistance, and so forth to ensure the business works well. Income that goes to the owner is still declared, but all income going to other workers, or to other purchases should be exempt as it would under Canada Revenue Agency rules.
A further complication of this issue is when one starts or is involved with a business subject to special regulations, such as the Health Profession Regulations Board, the Teacher's College, the Ontario College of Social Workers and Social Service Workers, or the Law Society of Upper Canada, there are other regulations imposed on the business in order for it to keep running, such as continuing education regulations, conference attendances, technological training workshops, and so forth, that ODSP also fails to exempt. The directive only allows conferences where income is being earned. These workshops are necessary to meet the conditions of one's license. At the present time, I know of a few contractors, tradesmen, a registered nurse that practices naturpathic medicine, a self-employed counsellor, a couple of lawyers, and a trades writer, all of whom are considering quitting working altogether because of the ODSP rules restricting their businesses. ODSP needs to ask itself if it is better to keep them working, or to have them sit at home and continue to collect ODSP in perpetuity.
One of my contractor clients has been unable to break the barrier because of this, as in order to be considered credible and able to bid on large contracts, he needs to have paid help. He can't make an adequate living on "Joe jobs" like painting window sills, and installing the odd set of blinds. He needs to be able to access and utilize the labour of other workers in order to even take on larger residential jobs. Another client wants to set up a limousine company, but will run into significant difficulties if he is unable to acquire more than one vehicle for his business and to hire somebody else to do the work, when he needs a break, or wants to grow his business beyond small jobs. In particular, these regulations also apply to the non-disabled spouses of ODSP recipients. Why? What purpose does this serve? How do these regulations help the self-employed recipients or spouses of recipients earn more money, grow their businesses (thus make them a more secure source of income over time), or improve their working conditions?
Some recipients live in subsidized housing, and for these people, it is impossible to start or become involved in self-employment anyways, due to regulations in subsidized housing that irrationally prohibit this. Again, over 70% of businesses that operate outside the home (e.g. operate in a commercial office or industrial space) started in the home or in a garage. Without the chance to start, these would be entrepreneurs are not going to be working, thus setting a further precedent in terms of time spent in subsidized housing and thus increasing the wait list for others waiting to move in. For these recipients even working is severely curtailed. In a report, our own John Stapleton reported on the insanity of these regulations governing earned income and subsidized housing, when it crosses over from income from social assistance. In this case, the recipient was in supportive housing, and as she worked more, her rent went up by a ridiculous amount. She soon fell into arrears, and the only way she was able to budget was to quit her job, and stay on ODSP only. How does that help people return to the workforce?
Another issue is savings. Even if somebody on ODSP was miraculously able to work and put away some money, they are limited to a total of $5,000 in "liquid assets", meaning that if they do not qualify for the generous provisions of the Registered Disability Savings Plan, only issued to those with very severe and visible disabilities, they will retire poor. They will rely only on government provisions for retirement, and given that most of these people live alone, they will definitely be living below the Statistics Canada poverty line. A non-disabled spouse has to drain ALL of their retirement savings in order for their disabled spouse to qualify for ODSP, and after that, cannot replenish this fund, no matter how hard they work. What good does this do? How does this help the economy? This is yet another reason why ODSP recipients cannot get into relationships.
A final issue is earnings themselves. The government was good to increase the amount of money one can keep from working by increasing the percentage of earned income one can keep, and adding a $100 work benefit to offset the small percentage of workers that would lose out on the 50% proposal alone. However, this new policy does not exempt any income. The fifty percent starts from the very first dollar earned, until the person earns enough to migrate off ODSP. For many people who accept minimum wage employment, for example, they feel they are losing, as they are bringing in what they see as less than minimum wage for every hour they work. One Conservative MPP recognized this issue, and attempted to push for an exempted earnings bracket of $500 per individual, and if that person is married, $700 (although as a Coalition, we proposed $1,000 if they still keep the benefit unit). This money would be exempt from any deductions until after they earn more than that amount, then the 50% deduction will kick in.
The province will bitch and complain about the size of their deficit. Don't let them do this, or white wash this deliberate ploy to keep people with disabilities under their thumbs. As long as they keep pouring money into tax cuts for businesses, regardless of whether they hire anybody or not, or worse yet - handing out money like they did with the auto sector, or paying for frills like eHealth, the OLG, multi-million dollar consultants, and so forth, there are NO excuses. Their existing policies and directives keep people in poverty, regardless of how hard they work, or how they try to organize their financial affairs. Normal exits from poverty such as a job or business, or moving in with a spouse, are not available to this population like it is for other people.
Yet the government has a policy on its books that ODSP recipients and beneficiaries can recieve up to $6,000 a year in gifts from "family and friends". There is a lot wrong with this. It is presumptuous: it assumes that all recipients have family members that are only itching to pour their hard-earned monies into the accounts of their loved ones on ODSP. In my experience working with ODSP recipients, I can count the number of recipients that have family that is that supportive on my left hand. Most recipients that have family at all cannot benefit from this, as their own families are also on ODSP (e.g. genetic disabilities), too old or frail themselves, or dead. Others are too far away. A few have families that have completely written them out of their lives, and fail to contact them, let alone provide "gifts". Why can't an ODSP recipient who is able and willing to earn make up this $500 per month for themselves, particularly if they are unable to access any "gifts" from family and friends?
Further, this whole "gifts" policy treats persons with disabilities as some type of charity case. Many do not want to be considered a charity case. When people come into my office to appeal their ODSP benefits, most are tearful, upset and ashamed of being required to ask for these benefits in the first place. Must we punish them some more to make them look like society's Timmy and Tammy? This is not a request to remove this provision, but to equalize earnings, or perhaps make earnings even more exempt because of the cost of obtaining these earnings. As far as I am concerned, a non-disabled spouse should be exempt - period, or at worst, exempt in terms of $500 per month per member of the benefit unit, including themselves, if they are going to be kept as part of the benefit unit ... at least that way, they are providing a "gift" from family of sorts, that should be equivalent to a gift from say, one's parents or siblings. Why is a "gift" from a parent or sibling exempt, but not exempt if it comes from a working spouse? The inconsistencies and ideologies that mount these policies are not only confusing, but unfair for many groups.
The final issue is definition of disability. This is one of the concerns that has led to rifts within the legal community about these programs. Ontario does have a fairly generous program compared to other programs in other provinces. A disability program should not require one to be "permanently unemployable" or "severely disabled", but must present proof that they have a verifiable disability that leads to substantial restrictions in a number of areas, such as working, caring for oneself, engaging in relationships, interacting in the community, etc. but not all of them. The existing definition works fine, with some cases to be reviewed in a set period of time, if it appears the disability is of a time limited nature. Others are long term, and should be subject to rapid reinstatement if a job does not work out. Restricting the definition of disability only results in more long term cases on Ontario Works, or people cycling in and out of Ontario Works without ever getting permanently back into the labour force. I know many people who are on OW for years at a time, simply because they lack a family doctor to assist them with their ODSP application, or they have unrecognized barriers. For example, an inability to drive, in itself, as long as the reason for it is medical, should be deemed a substantial restriction that should qualify one for disability benefits.
People who consider themselves fiscal conservatives will consider the cost of these proposals, and scream. However, the cost of NOT doing these things will keep people on ODSP for life, and the numbers of those with earnings will continue to remain very low. Indirectly, medical costs associated with depression, poverty, isolation and social exclusion will more than make up for what has been "saved" by keeping them on this punitive system.
Your thoughts?
Showing posts with label family law. Show all posts
Showing posts with label family law. Show all posts
Sunday, March 27, 2011
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.
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.
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