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Why I support the proposed family law services provider licence | Michelle Lomazzo

Tuesday, September 29, 2020 @ 3:13 PM | By Michelle Lomazzo

Michelle Lomazzo %>
Michelle Lomazzo
Facilitating access to justice is one of the key roles of the Law Society of Ontario. Soon, benchers will vote to transform access to legal services in family law for the people of Ontario.

In a December 2016 report Justice Annemarie E. Bonkalo made several recommendations directed at the law society relating to the creation of “a specialized licence for paralegals to provide specified legal services in family law.” Over 50 per cent of litigants in the family law system are self-represented, with that figure increasing to 70 per cent in some metropolitan areas.

The report noted that paralegals play a well-developed role in providing access to justice in that they represent clients in tribunals and small claims court and on minor criminal charges. The report also referenced the fact that paralegals can reduce the cost to the client. The Family Law Services Provider (FLSP) licence is now out for consultation until Nov. 30, 2020. Allowing paralegals to represent clients in certain family law matters means greater access to justice for the people of Ontario.

According to Ontario’s Law Society Act, a function of the law society is to ensure that: a) all persons who practise law in Ontario or provide legal services in Ontario meet the standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.

The Law Society of Ontario (LSO) has established Paralegal Rules of Conduct, and Rule No. 3 addresses competency. A paralegal is required to recognize a task for which the paralegal lacks competence and the disservice that would be done to the client by undertaking that task. A paralegal shall not undertake a matter without being competent to handle it or being able to become competent without undue delay or expense to the client.

There are many reasons why a client may be better served by a paralegal. Affordability is one main factor; however, the other is the specialized knowledge in a particular field a paralegal has obtained. Many paralegals have become experts in their chosen field.

In my practice, I focus my legal services on worker appeals at the Workplace Safety & Insurance Board (WSIB) and the Workplace Safety & Insurance Appeals Tribunal (WSIAT). I have exclusively offered legal services in this area of law for the past 32 years. I do not handle landlord and tenant or small claims court matters nor powers of attorney (POA) — only WSIB appeals. I know little to nothing about small claims court or POA or other areas in which paralegals offer legal services.

The WSIB and WSIAT are administrative tribunals created by statute. Legislatures confer these decision-making obligations on administrative tribunals rather than on courts for a variety of reasons. In the case of the workplace safety and insurance system, this permits decision makers to become specialized in a highly complex area.

The WSIB is not required to follow legal precedent in making decisions, and paralegals must present evidence and argue the case based on its individual merits and justice. It stands to reason that a legal representative must be highly skilled to properly represent the interests of their clients.

Because WSIB is a challenging and complex area of administrative law, there is a substantial learning curve. During numerous speaking engagements with paralegals in attendance, I reinforce the importance of not dabbling in WSIB law. There are serious downside risks to doing so. We have a duty of competency as paralegals, and lawyers and should never learn on the backs of our clients.
While there are the usual soft tissue injuries and fractures, my clients have included victims of workplace sexual harassment; workers claiming for occupational disease due to exposure to contaminants and cancer-causing agents; and spouses of first responders seeking entitlement for survivors’ benefits after death by suicide of their spouse. Death by suicide is a particularly complex area because if the first responder was not diagnosed with post-traumatic stress disorder (PTSD) the presumption clause does not apply.

These are seriously complex matters with some awards resulting in millions of dollars over the course of the claim. They require detailed medical research, review of medical chart notes, medical investigations and, in some cases, reviewing autopsy reports; and drafting medical/legal requests to medical specialists for an opinion on causality or researching chemical compounds and their effects; and drafting affidavits for witnesses.

Obtaining benefits for a worker who has Non-Hodgkin’s lymphoma because of their exposure to chemicals while working for a utility company is very rewarding on many levels. Not only is the worker set for life, but their spouse may be entitled to survivors’ benefits if the workers’ death results from the workplace chemical exposure.

These matters involve understanding the rules of evidence, legal research, identifying the legal issues, knowing how to read legal statutes and preparing clients and witnesses for hearings.

Paralegals providing legal services in family law matters will have the required competencies. To offer legal services in Ontario, a paralegal must be licensed. This is generally obtained after graduating from a two-year education program and passing good character requirements and a paralegal exam administered by the LSO.

The proposed FLSP will require an approximate one-year education program specializing in family law matters which addresses 209 competencies over eight areas, including: ethics and professional responsibility; knowledge of the law; substantive family law; problem, issue identification, analysis and assessment; alternative dispute resolution; litigation process; practice management issues; and prohibitions, followed by a FLSP licensing exam.

Paralegals will therefore have specialized education in family law and two licensing exams administered by the LSO and will be regulated by the LSO. In addition, the LSO’s consultation report recommends a prerequisite of one to three years of full-time practice experience as a licensed paralegal, and/or include a two- to three-month field placement in family law.

While some matters will be more complex than most as is the case in other areas of law, paralegals will establish working relationships with other, more experienced paralegals and lawyers. This becomes a source of reciprocal referrals. Those who can competently address the complex matters will do so; those who cannot will refer the matter to a more experienced advocate.

The Ontario government identified a need to expand access to justice. The scope of practice for paralegals has been minimally expanded since 2007. With proper education and licensing exams, character review, regulation by the LSO, the requirement for having errors and omissions insurance, practice experience and/or field placement and ongoing continuing professional development, paralegals representing litigants in family law will be well equipped to fulfil that access to justice need.

Last month in the United States, the Arizona Supreme Court unanimously voted to transform the public’s access to legal services and a number of other states plan to soon follow, noting access to justice is a national concern. Legal paraprofessionals will handle family law matters after having met the educational and experience requirements and after having passed a professional abilities exam and a character and fitness process. Arizona likened the legal paraprofessionals to nurse practitioners.

A statewide public opinion survey in Arizona found 72 per cent of the public surveyed said yes to allowing non-lawyers to offer these services, while only 22.8 per cent said no. Most cited the reason that lawyers are unaffordable.

In Ontario, let’s vote yes.

Author’s note: The views in this article are mine alone and not representative of the Law Society of Ontario.

Michelle Lomazzo was elected a paralegal bencher at the Law Society of Ontario in 2019. Lomazzo has worked as an injured worker advocate for several years in Windsor, Ont. Through her legal services practice, Lomazzo Workers Compensation Appeals Professional Corporation, she specializes in workers compensation appeals before the Workplace Safety and Insurance Board (WSIB) and regularly appears before the Workplace Safety & Insurance Appeals Tribunal (WSIAT).   

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