Canada has mixed approach on regulating paralegals; greater acceptance needed: industry voices
Wednesday, November 04, 2020 @ 9:40 AM | By Terry Davidson, Ian Burns and John Schofield
Judi Simms, of the Paralegal Society of Canada, said this greater acceptance of paralegals would be essential if additional jurisdictions are going to regulate them and expand the services non-lawyer practitioners are able to provide to the public.
Judi Simms, Paralegal Society of Canada
This view was expressed during an investigation by The Lawyer’s Daily into what the term “paralegal” means across Canada. What became clear is the existence of a patchwork when it comes to what the job is and what paralegals can and cannot do.
What is first striking is the variance of status from place to place: from regulation in Ontario; to a hands-off approach in Alberta; to various forms of regulation or practice exemptions being considered in Manitoba, Saskatchewan and British Columbia; to a perceived lack of need on Prince Edward Island.
Simms says any regulation in places where it is lacking would likely be a slow, incremental process — as it has been in her home province of Ontario, which started regulating paralegals in 2007 and currently remains the only province to have done so.
Regulation, she said, would “depend on how hostile the lawyer population is.”
For example, there is a general acceptance of paralegals in Ontario’s small claims courts, where monetary awards are relatively modest and, as a result, not attractive to many lawyers.
“If lawyers were willing to relinquish some of their standing, some of [the jobs] they don’t even want to touch, there would be a clear field for paralegals. [But] really, it is the idea that, ‘Ugh, I’m letting a paralegal handle something,’ I think it is hard … for lawyers who’ve paid a lot of money for many years of education; I can understand where they’re coming from. But, on the other hand, the justice system is overwhelmed, family law is totally overwhelmed, and many other areas are overwhelmed.”
Unlike many other jurisdictions, where the title of paralegal is colloquially given to assistants working in law firms and under lawyer supervision, Ontario’s paralegals can operate independently so long as they adhere to limits set out by the provincial regulator, the Law Society of Ontario (LSO).
According to information from the LSO, Ontario’s paralegals — there were 9,660 of them as of September — have a “defined and limited scope” and are able to act in small claims court, administrative tribunals, such as the province’s Landlord and Tenant Board and in certain criminal and quasi-criminal matters in provincial court. They can also negotiate for clients in these proceedings and draft documents, among other things.
Michelle Haigh, Precision Paralegal
Like Simms, Haigh spoke of a long-standing tension between paralegals and lawyers. But she has seen this slow-burn animosity ease over time — and with regulation.
"There used to be more,” said Haigh. “Honestly, from inception, it was really bad in the beginning. In 1996, when I graduated, the relationship between paralegals and lawyers from that point in time to today has changed dramatically. And it’s even changed from … when we became regulated. A lot of lawyers were still distrusting of paralegals, thinking that we were going to step on their toes and, you know, take their business away. But often we were doing stuff that lawyers generally wouldn’t do anyway. So, I think it just took some time for lawyers to recognize our value and what we can provide to the public. … We see a lot more lawyers hiring paralegals now to actually work in their firms as paralegals. You see a lot more referrals back and forth between paralegals and lawyers, so the relationship has really changed. It’s way more positive now than it used to be.”
But the stereotype that paralegals are interlopers in a lawyer’s world continues to linger, says Ontario Paralegal Association (OPA) president George Brown.
“I often say that there is a perception that paralegals are not knowledgeable,” said Brown. “I disagree … because most of the people in our profession carry with them two or three degrees, and they are well versed in many different areas of our society. We see a lot of people who are psychologists, engineers. We see lawyers who were practising in other countries, who come here and don’t want to do the [National Committee on Accreditation assessment] to upgrade because of the cost and simply go into the paralegal program, so those are the people you would see in the one-year program or the two-year program.”
In Manitoba, as in many other places, the title of paralegal is loosely used to describe those assisting lawyers in law firms.
Last March, amendments to the province’s Legal Professions Act were proposed, potentially paving the way for the Law Society of Manitoba (LSM) to create a designation for non-lawyer practitioners and allow them to provide limited legal services.
Law Society of Manitoba CEO Kris Dangerfield
“We don’t have a defined term here in Manitoba in terms of paralegals, but under the proposed legislation, limited practitioners would be in a position to provide services in an approved area, approved by the [law society] benchers, provided they are satisfied that certain conditions were in place in terms of training and education and competence and those kinds of things. Our next step … is we are going to begin our consultation, beginning with the profession and other stakeholders, around what is an appropriate scope of practice for these individuals, and we’re going to start with family law.”
When asked about Simms’ comment about regulation being contingent on lawyers agreeing to give up territory, Dangerfield said this subject will be broached during consultations with the profession.
“First off, our role isn’t to represent our members, our role is to protect the public,” said Dangerfield. “I think she’s right in the sense that there are certainly some in the profession that have some resistance and some concern about perhaps, as she said, giving up some of their turf. Our role … is to educate the profession, to make them understand that, in many instances, what paralegals are able to do is work that lawyers aren’t doing; aren’t willing to do; aren’t prepared to do. It provides an opportunity to facilitate members of the public getting access to legal services in a way that they currently aren’t. So, there isn’t a risk in the sense that lawyers are suddenly going to be losing a vast scope of their business.”
BC Paralegal Association president Michèle Ross
Their allowable duties include meeting with clients, drafting court documents and settlement proposals, doing research, preparing briefs, interviewing witnesses, instructing experts and participating in negotiations.
But the evolution of the B.C. paralegal seems to go in fits and starts.
According to Ross, B.C.’s law society launched a “designated paralegal initiative” in 2012 and expanded the scope of tasks paralegals could perform. A pilot project was started allowing these paralegals to appear in B.C.’s Supreme and provincial courts on “certain family matters.”
However, the pilot has since ended and paralegals are once again barred from making court appearances.
But in 2015, the law society again expanded the designated paralegal role, allowing them to represent clients at family law mediations. And this past September, a “licensed paralegal task force” presented a report to the law society, where the benchers approved in principle a plan for a “grass roots” approach involving a “regulatory sandbox” that would allow non-lawyers to apply to the law society with proposals to provide certain legal advice or services directly to the public.
The process continues.
“The sandbox is a way where the paralegals can come to the law society with their ideas and innovation and say this is what I am thinking about doing,” said Ross. “If there is no harm to the public then the law society may permit them to do that, and over time it may grow to the formal recognition similar to the Ontario model, and so I think this is a good thing for paralegals in B.C. I think there are a lot of paralegals that want to consider doing a business model which will allow them to do this type of work and now the law society says give us your ideas and they will decide whether it is harmful to the public and if it is not, we can be part of the sandbox.”
On the East Coast, the Nova Scotia Barristers Society (NSBS) is trying to solve its own paralegal puzzle.
“One of the society’s 2019-2022 strategic goals is to continue to regulate Nova Scotia’s legal profession in the public interest in a manner that is proactive, principled and proportionate,” said NSBS acting executive director and general counsel Bernadine MacAulay. “One of our specific objectives to help us achieve that goal is to review and assess the viability of paralegal regulation in Nova Scotia.”
As for Saskatchewan, its law society formed a task team in 2017 that recommended expanding the list of exceptions to the unauthorized practice of law, as well as to grant limited licences to certain non-lawyers on a case-by-case basis.
On Jan. 1 of this year, amendments to the province’s Legal Profession Act included a clearer definition of the practice of law, but the limited licence program is a work in progress.
Law Society of Saskatchewan executive director Tim Brown
Still, Brown said, there is movement.
“We are currently going through the process of identifying individuals or organizations who may fall under our recently amended definition of ‘practice of law.’ During this discovery process, we are also undertaking an assessment of legal needs in the province. ... Understanding both existing legal or near-legal service providers and the needs of Saskatchewan citizens will serve to inform the future development of exemptions in our rules and the appropriate aims of an eventual limited licensing program.”
Then there is Alberta, which seems to be a bit more freewheeling when it comes to its paralegals — including those who operate outside the lines.
There is currently no governing body for paralegals and nothing in Alberta’s Legal Professions Act covering them, according to Heidi Semkowich, president of the Alberta Association of Professional Paralegals (AAPP).
“Currently, all of the members of the AAPP who are paralegal members are supervised or are working under the supervision of a lawyer and that is for protection of the public so if something goes sideways, lawyers insurance is there as a safety net,” said Semkowich. “We do realize there are lots of independent paralegals practising throughout the province and, unfortunately, the AAPP doesn’t really have the teeth at this point to deal with them. However, we are … starting to look at bringing them under our fold as members so we can offer some guidance and deal with things if something goes sideways.”
Semkowich talked of some out there taking advantage of a lack of framework.
“Unfortunately, in Alberta right now anybody can hang out a shingle and say they are a paralegal,” she said. “It is causing a really ugly atmosphere in the province because there are some less-than-upstanding individuals doing this and on average I am receiving … [one] to [two] complaints a week from members of the public who are being defrauded.”
But Law Society of Alberta (LSA) communications manager Colleen Brown says paralegal regulation was discussed in 2012 and, in the end, it was decided there would not be any.
“We are in favour of people getting services where they can and we only become engaged right now if paralegals cross into the unauthorized practice of law,” said Brown, who was asked if the LSA would consider working with government to bring the province’s paralegals under the auspices of the Act.
“We are always open to the discussion on this topic,” said Brown. “Our strategic goal for Innovation [and] Regulation is focused on seeking new governing legislation, reducing regulatory barriers for innovation in legal service delivery and increasing innovation, efficiency and transparency in all regulatory and governance processes.”
As for Prince Edward Island, the regulation of paralegals has not factored into the access to justice discussion, said Law Society of Prince Edward Island secretary-treasurer and executive director Susan Robinson.
“We are always discussing access to justice issues here with the stakeholders,” said Robinson. “It’s probably the [low] number of paralegals here. There’s not an organized profession of paralegals here, or paralegals coming to us … saying this is something we’d like to see discussed. There is lots of discussion around access to justice but the paralegal piece hasn’t come to the attention of the law society.”
Olga Leyenson, an instructor and curriculum developer with the paralegal program at George Brown College’s School of Continuing Education in Toronto, spoke of the ambiguity surrounding the term.
“The trouble with the word ‘paralegal’ is that it can be very non-specific, and so it has been adapted to mean different things in different jurisdictions by convention,” said Leyenson. “To the best of my knowledge, the term is not regulated by statute in any Canadian jurisdiction. One dictionary’s definition of the word is ‘a person trained in subsidiary legal matters but not fully qualified as a lawyer.’ This can encompass a number of professions, including law clerks, legal secretaries, court clerks and, in Ontario, court and tribunal agents who are licensed by the Law Society of Ontario [as licensed paralegals], or who fall into one of the law society’s exemptions, such as in-house agents working for a single employer and appearing before certain courts and tribunals. In the United States and numerous Canadian jurisdictions, what is generally referred to as a paralegal is what is often called a law clerk in Ontario. So, perhaps the disuse of the term in some jurisdictions can be attributed to the confusion that it can cause.”
Jodi Simms, the independent, regulated paralegal in Ontario, was asked if this coast-to-coast patchwork negatively impacts the paralegal profession.
“Patchwork regulation makes it difficult for paralegal mobility from province to province and puts paralegals moving from an unregulated province to Ontario at a definite disadvantage, as they will have to re-educate themselves and go through a lot of testing to recapture their designation in Ontario,” she said. “However, there might be some advantages to being unregulated for paralegals in other provinces if they are historically allowed to perform certain services without regulation.”
On top of this, says Simms, widespread economic shutdowns brought on by COVID-19 has been felt by paralegals everywhere.
“I think it’s been devastating all across the spectrum — for paralegals and lawyers,” said Simms. “The courts have been closed; the people who need legal services, a lot of them don’t have the money to get it done. I hear about not just paralegals but lawyers as well who are unable to pay their rent. … I think it’s been a hard go.”
But Ross, the B.C. Paralegal Association president, says paralegals, like most others in the justice system, have had to turn to technology to get through.
“I think the biggest effect that COVID-19 has had on paralegals is the challenge of working remotely. I am aware of some paralegals that remained in their law firm offices when the pandemic first hit. However, I am also aware of many who relatively quickly had to adapt their usual practice of being in a law firm five days per week to working remotely five days per week. Unfortunately, for law firms that were not properly set up for remote work or did not allow paralegals to work remotely prior to the pandemic, this presented challenges.”
Illustration by Chris Yates/Law360
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