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Law Society of Ontario’s By-law 14 amendment: Late better than never | Majid Pourostad

Tuesday, March 30, 2021 @ 8:31 AM | By Majid Pourostad

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Majid Pourostad %>
Majid Pourostad
On Feb. 25, 2021, the Law Society of Ontario (LSO) made some amendments to By-Law 14, particularly s. 4 (1) that imposed a “reciprocity requirement” on applicants for the Foreign Legal Consultant (FLC) permit. An FLC is entitled only to give legal advice respecting the law of their home jurisdiction. Thus, they are not permitted to engage in any other aspects of the practice of Canadian law or appear in any court or before any tribunal in Canada.

Among all law societies in Canada, the LSO was a single exception. However, according to this amendment and consistent with the long-standing policy of the other provincial law of societies in Canada and even the New York bar, applicants for an FLC permit in Ontario are no longer required to submit proof of reciprocity in their home jurisdiction.

Nonetheless, such amendment should have been made far much earlier. I applied to the LSO for this permit in 2016 but unfortunately, my application was refused due to the lack of reciprocity between Iran’s Central Bar Association (ICBA) and the LSO. I started to canvass and persuade both LSO and ICBA to recognize such a relationship but without success. Therefore, I had no choice but to bring a human rights complaint to the Human Rights Tribunal of Ontario (HRTO) on the ground of discrimination based on “national laws” (analogous to discrimination on the base of “national citizenship” relying on Law Society British Columbia v. Andrews [1989] 1 S.C.R. 143, arguing that the fulfilment of such a requirement lies beyond my control. (Pourostad v. The Law Society of Ontario, 2019 HRTO 130). Ultimately, this complaint was dismissed but I wonder how much my complaint and submissions have made a positive impact on the revocation of s. 4 (1).

Access to justice is the hallmark of a civilized society and is fundamental to the rule of law, but it is meaningless without providing the practical means of getting access to it. Access to justice means being treated according to the law and if you are not treated fairly, being able to get appropriate redress. That does not mean only access to lawyers and courts, but in a truly diverse society it should also include access to advice regarding laws of foreign jurisdictions. Therefore, lack of access to legal information and consequently the risk of “misinformation” by ineligible foreigner consultants can be deemed one of the barriers related to access to justice.

Access to justice is a human rights issue. Human rights laws are universal and egalitarian legal rights of individuals which cannot be subject to reciprocity in the context of foreign legal consulting. Human rights laws ultimately aim to protect individuals and do not fundamentally relate to interstate relations, but states have an obligation to protect and uphold human rights of individuals regardless of whether other states comply with them. As a result, human rights laws go beyond a state’s boundaries and there is no basis for reciprocity in human rights laws whose main aim is to protect the rights of those individuals who are unable to reciprocate or cannot do so at all, including those who come from states that are not party to a treaty or a bilateral agreement.

In this case, although the LSO is independent of government, it is an entity performing acts properly characterized as government activity through exercising its statutory authority and consequently is bound by the Canadian Charter of Rights and Freedoms (Eldridge v. British Columbia (Attorney General) [1997] S.C.J. No. 86).

As such, the LSO’s approach that since Iran did not have such a provision, then Iranian applicants were ineligible for an FLC Permit could be seen as incompatible with human rights principles. For example, a state cannot refrain from torture or genocide acts on condition of reciprocity. It follows that the LSO should not use the principle of reciprocity to breach fundamental rights of those who need advice on foreign laws and those who are qualified to give it. Consequently, the LSO has been in the breach of the fundamental rights of individuals with respect to such legal services.

Access to justice is also an economic issue. A huge number of Iranians are citizens, permanent residents or work and study in Ontario and they need to legal advice regarding the laws of their home country. Due to the economic sanctions imposed by the former Trump administration on Iran, Ontario-based Iranians could not afford to travel to Iran to pursue their judicial and administrative affairs in Iran and they really needed to be provided with legal advice on Iran’s laws. More importantly, owing to the international travelling restrictions, the COVID-19 pandemic had exacerbated this situation.

However, the detrimental effects were not limited only to the Iranian community, whether recipients or providers of these services. Ontario-based enterprises may have wanted to get legal advice respecting the laws of Iran in the course of their business dealings with their Iranian parties. To hire FLCs, Ontario lawyers and licensed paralegals must have complied with the Law Society Act and its By-law 14, otherwise they were subject to penalties.

Despite the repercussions as mentioned, we should take the recent amendment as a good and auspicious sign. Hereinafter, FLC permit applicants do not need to provide the proof that their home jurisdiction reciprocally permits Ontario’s lawyers to give legal advice regarding the laws of their jurisdiction. The revocation of s. 4 (1) was too late but better than never.

Majid Pourostad is an internationally trained lawyer (ITL). He has extensive practical experience in drafting international business contracts as well as dispute resolution clauses. He also just obtained the degree of professional LLM in international business law from Osgoode Hall Law School and currently is an NCA candidate to be eligible to apply to the bar admission program in Ontario.

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