Electronic Filing, Service Changes: SCC Update

Andrew Hyland

Photo: Andrew Hyland

Last August, paralegal Andrew Hyland broke down coming changes to the Rules of the Small Claims Court. SCOPE updates the changes, as more rules are on-deck to be phased-in.

Amendments to the Rules of the Small Claims Court will continue to affect paralegals who work in this area of practice, with more changes coming into force this July.

The coming amendments affect:

      RULE 8 – SERVICE
      RULE 9 – DEFENCE
      RULE 19 – COSTS

      The Table of Forms is also amended, beginning July 1, 2014.

Other changes took effect Jan. 1, 2014. These followed the Law Society of Upper Canada v. Chiarelli, 2013 ONSC 1428 (CanLII) and Law Society of Upper Canada v. Augier, 2013 ONSC 451 (CanLII) decisions from the Superior Court of Justice. In those cases, the Court and the Law Society indicated a move to crack down on unlicensed practice before Ontario’s Courts and Administrative Tribunals.

The Rules of the Small Claims Court have been amended to include a new Rule 1.08:

    1.08 For greater certainty, nothing in these rules permits or authorizes the court to permit a person to act as a representative if that person is not authorized to do so under the Law Society Act.

This new rule is likely to have a significant impact on the way business is conducted before the Court; it is important to understand exactly what it means.

The new rule does not require all parties to be represented; nor does it restrict the Court’s discretion to allow or remove persons appearing before it. In particular, s. 26 of the Courts of Justice Act remains. It states:

    26. A party may be represented in a proceeding in the Small Claims Court by a person authorized under the Law Society Act to represent the party, but the court may exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of the party if it finds that such person is not competent properly to represent the party, or does not understand and comply at the hearing with the duties and responsibilities of an advocate.

Self-represented persons (including, presumably, corporations via directors and employees) will continue to be allowed to speak before the Court. So will persons exempted under the Law Society Act, including but not limited to friends and family members — provided they meet the requirements set out in By-law 4, including the requirement not to be paid. This is made further explicit in changes to rule 19.04, which restricts representation fees to lawyers, paralegals, and students-at-law only.

The Court also retains its powers to exclude unlicensed persons exempted under the Law Society Act if they fail to meet the standards of competency and responsibility under s. 26.

Unlicensed Practice Costs Dearly

The primary target of the new rule, then, is unlicensed practice. Paralegals who practise in Small Claims Court have frequently encountered unlicensed practitioners, ranging from persons who are completely unaware of the Court’s rules, to those who are deliberately ignorant of them, to those who abuse the exemptions in the Law Society Act while appearing before the Court.

Too often, what should be relatively simple matters turn vexatious, resulting in significant delays, increased costs, and prejudice to both parties, as the Court deals with matters that might have been resolved much sooner if all parties were properly represented. Instead, proceedings can become akin to something out of a U.S. daytime court show. Put another way, while Small Claims Court is a people’s court, it is not The People’s Court.

As paralegals, we have a professional obligation to report unlicensed practice; however, the act of doing so did not mean we would cease to encounter the subjects of our complaints before the Court. Rule 1.08 represents a significant step towards solving this problem, by making explicit what is implied in s. 26 of the Courts of Justice Act.

While this new rule will not completely eliminate the problem of unlicensed practice, it should give paralegals hope and cause to rest a bit easier at the end of the day.

The changes affect ONTARIO REGULATION 230/13, under the Courts of Justice Act. These amend O. Reg. 258/98, the Rules of the Small Claims Court

    Further Information

    Last April, the Law Society obtained an injunction against a student who had offered paralegal services without a licence. Court found that Chantal Coulson attempted to recruit classmates from her law clerk program to help her to provide legal services. Clients paid her retainers, after responding to ads on social media. Coulson is permanently restrained from holding herself out as, or representing herself to be, a person who may practice law or provide legal services in Ontario.

    Law Times reported that Joseph Kary, counsel for Chiarelli, told the Court of Appeal in December that his client meets the definition of a landlord under Ontario legislation.

    Update on Electronic Filing Changes: Paralegal SCOPE, April 11, 2014.

Andrew Hyland operates Veritas Legal Services in Oshawa. Reach Andrew at:

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