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LSO election bodes well for paralegals | Ian Wilkinson

Monday, June 03, 2019 @ 8:55 AM | By Ian Wilkinson


Ian Wilkinson %>
Ian Wilkinson
Much was said of the StopSOP slate of Law Society of Ontario (LSO) benchers that were elected, both before and after the election. They made a choice to stand up for their principles and regardless of your position on the SOP (Statement of Principles) or any other issue, that deserves respect. Despite any election Internet baiting, the entire slate acted in a measured and rational manner and responded with equanimity. Agree with them or not, they believe that their opposition to the SOP was a rationalist one.

It’s a safe bet that the StopSOP group aren’t going to change into something else now. They will follow the best argument because that is what rationalists do. They have staked themselves to that ground. This is why, for the first time as a paralegal, since regulation and even well before, I have an optimistic outlook for the future of the paralegal profession.

No one, including paralegals, wants a scope of practice that would leave the public at any significant risk.

Alternately, it simply cannot be denied that there is an access to justice deficit that needs to be resolved. Expanded scope for paralegals is one of the ways to alleviate that need. So, if this is going to be a rational discussion let’s have the arguments on these issues, one by one.

The overwhelming unmet need for family law services seems to be an unassailable argument in favour of expanded scope.

The real need is doing the paperwork and speaking in court on custody, access and support. Why are 68 per cent of parties going unrepresented? Are almost 60,000 lawyers in Ontario not enough? Would the LSO rather these people continue to go unrepresented before the courts than allow paralegals with the proper training to fill this void?

In criminal law, paralegals have been providing representation in summary conviction offences up to six months in custody for decades but with new Canadian legislation Bill C-75 that moves all summary conviction offences to two years less a day, these matters could be out of scope.

The only substantive argument against allowing paralegals to practise in these matters is that the incarceration time of two years is too much to risk allowing the public to engage paralegals to do such work. But paralegals already act as the legal representative in numerous Provincial Offences Act offences which provide for even five-year sentences; so, to use length of incarceration as the prevailing consideration is inconsistent and invalid. Shouldn’t paralegals at least be able to continue to do what they have already been doing; i.e., summary convictions? Otherwise it would mean even more people going before the courts unrepresented.  

In small claims court appeals, the substantive issues are the same as in the original trial so the only differences between small claims and the Appeal Court are procedural. The cost of having to employ a new litigator just to get up to speed is significant and provides no benefit. Is the only reason to restrict practice here that it would cut into the lawyers’ bailiwick?

A similar unnecessary prohibition applies to immigration. The federal legislation allows paralegals to act as representatives, but it is the LSO interpretation of Bylaw 4 that precludes paralegals from doing so. Again, is the only objection to paralegals operating in this area that the billing rate is less than half of what a lawyer charges for the same services?

My optimism lies in that I fully expect these, and all the paralegal issues to be dealt with on a rational basis. If the objections to expanded scope for paralegals don’t stand up to scrutiny, then I expect they will be tossed. This is about the public’s rights to affordable legal representation not the lawyers’ rights to a monopoly on legal services. If our motto is “Let right prevail” we should at least try to get the right right(s) right ... right?
 
This begs the question: What are the appropriate underlying fundamental principles that the LSO should use to determine which services should be allowed to be offered by paralegals?

Surely, rationality requires some level of consistency.  Are these principles to be based on public need, risk, complexity, cost or a matrix that includes other factors as well?  

Currently, the LSO precludes paralegals from advising on any issue or drafting any document that “might” affect any person’s legal rights except in relation to an actual proceeding. Why? “The law is complicated and there is too much risk to let people decide that on their own.”

Only lawyers can decide how much risk is too much in any and all areas of law?

No one will argue that a person charged with an indictable offence shouldn’t have a lawyer representing them, but being that there are a range of matters within any given scope, from simple to complex and from very serious to those much less so, the primary operating principle should be to give the public the right to choose unless the risk, in terms of seriousness and chance of occurrence, is such that it should override that right.

True, the devil is in the details and how to judge this requires some hard thought and a calculated balancing of ranges of risk. But it’s one thing to err on the side of caution and quite another to defend a system that uses such a broad brush that large portions of the population are effectively deprived of their basic right to affordable legal representation.  

So, while not without reservations, I am optimistic that, for the paralegal profession, the future ain’t what it used to be.

Ian G. Wilkinson B.A., LL.B. provides litigation paralegal services throughout southwestern Ontario. You can e-mail him at iangwilkinson@legalcentre.ca or visit Legal Eagle Paralegal Solutions.

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