Change could be on the way, if a report commissioned for the Ministry of the Attorney General sways the government.
Consultant David J. Morris wrote the “Report of Appointee’s Five-Year Review of Paralegal Regulation in Ontario,” which was presented in November 2012. The “Morris Report” is in addition to the mandatory report from the Law Society of Upper Canada, which was delivered last June.
The report examines the first five years of licensing for paralegals in Ontario. It declares the profession a success, and suggests expanding the scope of paralegal practice.
Among the findings that could affect paralegals: the public is satisfied overall with paralegals’ fees and services; the LSUC is the appropriate regulatory authority; scope of practice expansion would further serve the public; and inclusion in the Legal Aid Ontario system would make access to legal services more widely available.
Improving Access to Justice
Brendan Crawley speaks for Ministry. He says the Attorney General’s office is “carefully considering” the results and recommendations of both the LSUC’s and Mr. Morris’ reports on paralegal regulation.
Crawley notes that Ontario is the only jurisdiction in North America to regulate the paralegal profession. “Our leadership in this area demonstrates our province’s ongoing commitment to continuously strengthening our justice system and improving access to justice for all Ontarians,” he says. “A regulated paralegal profession helps protect consumers and gives Ontarians a choice when seeking legal representation.”
Ontario’s Access to Justice Act, 2006, broadened the role of the Law Society to regulate all legal services in the province and effectively created the licensee category of paralegal.
Scope of Practice Considerations
Paralegals may offer legal services in limited areas of law. This includes Small Claims Court matters under $25,000, Provincial Offences Act cases before the Ontario Courts of Justice, regulatory boards and tribunals, and summary conviction offences that carry a maximum penalty of less than six months in jail.
As of mid-September 2012, there were 4,301 active paralegal licensees in the province. The Morris Report notes that one-quarter of all 4,301 licences issued since regulation have been issued since January 1, 2011. This leaves a split of pre-licensing paralegals who were grandfathered through introductory provisions, and recent graduates of accredited community college programs.
Morris points out that the initial boundaries of permissible practice reflect the scope permitted to “agents” in legislation and case law. Forty per cent of paralegals who responded to a Law Society-commissioned survey are in private practice as sole practitioners. One-quarter are in private legal and paralegal practice as employees.
Getting the “mechanics” of regulation in place was the over-arching task of the first five years, Morris found. If the Legislature endorses the Morris Report recommendations, the Law Society may pursue opportunities to facilitate greater access to justice through broadening of the scope of permissible paralegal practice.
Such expansion is linked to recommendations regarding paralegal education, training and professional conduct. Approximately 26 colleges are LSUC-accredited to provide paralegal studies. Those accredited paralegal programs are audited to ensure standards are upheld.
Specialization being considered
Scope expansion could include uncontested divorces under Family Law, preparing simple wills, handling some real estate transactions, super summary criminal matters, Small Claims Court appeals and limited matters heard before the Superior Court of Justice. Sub-classes, or specialties, of paralegal licences may also be considered.
The Morris Report suggests that sub-classes, or other forms of accreditation — linked to specialized and substantive training — could permit paralegals to work in sectors that currently fall outside the permissible scope. Such expansion must function “in lock-step with improvements in the standards of learning, professional competence and professional conduct of the paralegal sector.”
Including Paralegals in the Legal Aid Ontario system is another significant highlight in the report.
The Morris Report addresses the exclusionary language in several provincial acts. It recommends amendments “when that exclusion cannot be justified in the interest of facilitating access to justice or protecting the public interest.” Certain provisions in the Barrister’s Act, Legal Aid Services Act, Notaries Act, Juries Act, Justices of the Peace Act, and the Law Society Act exclude paralegals.
Here are the report’s recommendations:
Recommendation 1: That the Law Society continues to pursue elimination of exclusions to its regulation that cannot be justified in terms of facilitating access to justice and/or protection of the public interest.
Recommendation 2: That the Law Society Act be amended to provide for proportionally equal representation of lawyers and paralegals in its governance structure.
Recommendation 3: That language in statutes that serves to exclude paralegals, when that exclusion cannot be justified in the interest of facilitating access to justice or protecting the public interest, is amended so as to include paralegals.
Recommendation 4: That the Law Society undertakes a comprehensive review of the paralegal training and examination regime, beginning with a re-assessment of the competency profile that is appropriate for the legal services that are permissibly offered by newly-licensed sole practitioners.
Recommendation 5: That the Law Society considers implementation of sub-classes of paralegal licences and/or other forms of accreditation to which, following specialized and substantive training, is attached the right to practice in specific areas of law (e.g. Small Claims Court).
Recommendation 6: That the Law Society undertakes a public education program that raises awareness of the legal services options available to Ontarians and the protection offered its consumers.
Recommendation 7: That the Law Society allocates the necessary resources to actively enforce within the paralegal sector adherence to its standard of professional conduct.
Recommendation 8: That paralegal licensees of the Law Society are required to include a Law Society-authorized description of their licence class (e.g. “Paralegal”) and/or subclass in all marketing and communications materials.
Recommendation 9: That paralegals are required at their first meeting with a client to obtain and file on record the client’s acknowledgement of disclosure of the scope of the paralegal’s services and legal advice.
Recommendation 10: That the Law Society continues to actively pursue opportunities to facilitate greater access to justice through broadening of the scope of permissible paralegal practice, but that such broadening is directly linked to the recommendations above with respect to paralegal education, work experience, and professional conduct.
Recommendation 11: Consistent with Recommendation 5 above, that the Law Society considers implementation of sub-classes of paralegal licences and/or other forms of accreditation to which, following specialized and substantive training, is attached the right to practice in specific areas of law that might currently fall outside of the scope of permissible paralegal practice.