Crown employees who provide legal services must be licensed paralegals, the Superior Court has found.
In April, the Law Society of Upper Canada (LSUC) got a declaration from the court that Ontario Public Service Employees Union (OPSEU) employees cannot advise employees or employers without a paralegal licence.
The case, LSUC v. OPSEU et al., 2014 ONSC 270 (CanLII), essentially narrows the licensing exemptions available for Crown employees who provide legal services to clients other than the Crown. They must be licensed, unless they have a specific exemption.
The Law Society’s By-law 4 and the licensing requirements in the Law Society Act provide exemptions for certain types of employees. For example, By-law 4 includes an exemption for provincial employees who provide legal services under the Workplace Safety and Insurance Act (WSIA).
Amendments to the Occupational Health and Safety Act (OHSA) in 2011 meant that matters related to safety-related reprisals are now handled by Crown workers, in non-union workplaces — including providing representation before the Ontario Labour Relations Board (OLRB). LSUC applied for a declaration that the Law Society Act applies to those provincial employees.
OPSEU, which represents Crown employees, opposed the application on the basis of Crown immunity, or alternatively, that the WSIA exemption provided by By-law 4 applied by extension to include providing legal advice under the OHSA.
Justice Carole J. Brown found that provincial staff who provide legal services relating to OHSA must be licensed paralegals.
Justice Brown wrote:
“I find that the prospect of a patchwork of regulation of persons providing legal services in Ontario, by both the Law Society and by the Crown’s internal disciplinary process, as urged by OPSEU, and the prospect of having both licensed and unlicensed persons offering legal services both appearing on behalf of the public before tribunals and the courts is not tenable and is not in the best interests of the public seeking legal services. In the interest of the administration of justice and the protection of the public, all persons offering legal services to the public should be on the same footing, and subject to the same regulations, administered by the same regulatory body.”
The Law Society had asked that a contextual approach be used in interpreting the legislative amendments.
Such a method would “reveal an intention to bind the Crown,” LSUC counsel Helen Daley and Danielle Gallo argued. “If the express purpose of the LSA is to protect the public by requiring legal service providers to be licensed, then it would result in an absurdity for an entity such as the provincial Crown to be able to provide legal services on an unlicensed basis.”
By-law 4 Exemptions
Do I Need a Paralegal? – Succinct information about the scope of practice
Friends of the Oldman River Society v. Canada (Minister of Transport),  1 S.C.R. 3
R v Ouellette, 1992 CanLII 110 (SCC),  1 S.C.R. 3