What is competency? A train heading our way

Photo: Steven Depolo

Photo: Steven Depolo

Do clients who pay less for paralegal services deserve a lesser standard of competency than they would from a lawyer? That sticky issue will inevitably be decided by a court of law. The only question is when.

During his talk to licensees at the LSG College of Law, Sept. 13, His Honour Justice Rick Libman mentioned a recent appeal, in which the appellant argued that paralegals do not have the same competency requirements as lawyers. In R. v. Bilinski, 2013 ONSC 2824 (CanLII), the Superior Court of Justice dismissed an appeal against an assault conviction. The appellant had argued that, because he was represented by a “grandfathered” paralegal, the standard of competence to be expected is lower than from a lawyer.

Court was not satisfied that any miscarriage of justice resulted, and the appellant’s conviction was upheld.

“This appeal is important for what it doesn’t say,” Justice Libman told the paralegals gathered for the LSG event. “This train is coming. You can be challenged on competency.”

No decision has yet settled the question of whether the level of competency for paralegals is the same as for lawyers, His Honour said. But he expects such a decision is inevitable, and urged paralegals to prepare themselves. His comment on the Bilinski case runs this month in REGQuest, the Regulatory Affairs and Compliance newsletter from Carswell.

Challenges Will Continue

“There will likely be more such challenges to the competency of paralegals in the future,” Justice Libman writes, “Particularly in cases involving provincial offences proceedings where representation by paralegals is the norm, and not the exception, as occurred in Bilinski.”

There are several practical reasons why the issue of whether “competency” varies by licensee category has not yet been determined by a court:

    • Previous cases that approached the issue took place before licensing
    • Licensing has been in place for just six years
    • The grandfathering phase-in period ended in 2007, after which anyone who wants to apply for licensing must have graduated from a program accredited by the Law Society of Upper Canada
    • The Continuing Professional Development (CPD) Requirement for paralegal licensees has been in effect only since January, 2011

These factors come into play when a court considers the level of competency expected for various licensee categories, as discussed in Bilinski. The combined effect has been that no paralegal formally educated under the Law Society’s educational requirements, and mandated to meet the CPD Requirement, has yet been the subject of an “ineffective counsel”-based appeal.

Such an appeal would involve judicial consideration of the issues as identified, but not decided, in Bilinski.

The accused in Bilinski was charged with domestic assault and tried before a provincial court judge – a forum in which it is uncommon for a paralegal to appear. The Crown had elected to proceed by summary conviction, so a sentence of no more than six months’ imprisonment was the maximum available.

Quality of Representation – Mandated Or Not?

During the Bilinski trial, the judge was critical of the paralegal. The client was found guilty. On appeal, the defendant argued he had been denied “effective representation,” and asked for a new trial.

The Crown contended that the Ontario Court of Appeal’s pre-regulation decision, R. v. Romanowicz, 1999 CanLII 1315 (ON CA), continues to apply. That case held that an accused who chooses to be represented by a paralegal cannot expect to receive the same level of representation as if he had retained a lawyer. The Court of Appeal had emphasized the importance of legal training when comparing lawyers to paralegals. The educational requirements, substantive differences in the licensing exams, articling requirements, and professional responsibility and practice courses, differ significantly.

The appellant in Bilinski suggested a compromise position – that, in the alternative, there should be a “middle ground” standard of representation by paralegals, which is “somewhat lower” than for lawyers. Bilinski’s paralegal had been “grandfathered,” or permitted to apply for licensing before the accredited program requirement came into effect. It was not clear to the Court what legal training the paralegal had received.

Justice Durno rejected the lower-standard suggestion and dismissed Bilinski’s appeal. “The fact a lawyer would have done things differently is not the test to be applied,” he found.

Case Law Before and After Licensing

In the extensive ratio, Justice Durno outlines competency criteria and discusses the judicial consideration history of paralegals. The decision could set the stage for that critical case – the “train” heading our way.

Criteria for ineffective assistance of counsel has been determined in R. v. G.D.B., 2000 SCC 22 (CanLII), [2000] 1 SCR 520, the Supreme Court of Canada decision which found that it must be established that counsel’s acts or omissions constituted incompetence, and that a miscarriage of justice resulted. Incompetence is determined by a standard of reasonableness and the burden is on the appellant.

Justice Durno refers to the Ontario Court of Appeal decision in R. v. Joanisse, 1995 CanLII 3507 (ON CA), which set three criteria for ineffective assistance: (1) the appellant must establish the facts on which the claim of incompetence is based; (2) the appellant must establish that the representation provided by trial counsel was incompetent; and (3) the appellant must establish that the incompetent representation resulted in a miscarriage of justice.

Skills, Attributes, Values

Justice Durno references the Law Society rules that govern paralegals — the Paralegal Rules of Conduct. Provisions that are relevant to the issue of competent representation include Rule 3.01. It provides that a paralegal shall perform any service undertaken on a client’s behalf to the standard of a “competent paralegal.” Rule 3.01(4) defines a competent paralegal as “one who has and applies the relevant skills, attributes, and values appropriate to each matter undertaken on behalf of a client.”

A person who retains a paralegal is not entitled to effective assistance on par with a lawyer, Justice Durno found. He held that the differences between paralegals and lawyers remain and that a “clear distinction” exists between the representation that an accused person is entitled to when they retain a paralegal, as opposed to a lawyer – but stopped short of determining specifically what the entitlement is.

A lesser standard of competency is a “problematic” issue, Justice Durno noted. The “middle ground” standard posited in Bilinski’s appeal could not mean simply that a paralegal is entitled to make “more mistakes than a lawyer.” He ruled that the Law Society’s regulation of paralegals cannot be certain to have created a standard of competency, in particular for grandfathered paralegals.

Whether there should be a “middle-ground” standard could be determined based on a full record of all the licensing and education requirements for the 2,230 grandfathered paralegals and thousands of post-2007 licensed paralegals, Justice Durno wrote.

Merits-based Competence Analysis is Inevitable

Bilinski could be seen as a bellwether of the apparently inevitable decision to come, the leading case to determine a judicial standard of competence for the profession. In his case comment, Justice Libman outlines the issues that may arise in such a future case, settled on the merits of a question of competence.

The decision will likely originate in a provincial offences proceeding, under the Provincial Offences Act. This raises such questions as:

    • What standard of competency should apply to law students who appear in Provincial Offences court – to that of a paralegal, of a lawyer, or some other middle ground?
    • Whether competency standards vary between Part I and III prosecutions
    • Whether competency standards vary between grandfathered paralegals and post-accreditation licensees
    • What effect the Continuing Professional Development Requirement should have on the competency standard
    • To what standard lawyers should be held, in representing clients at provincial offences proceedings?
    • Could a paralegal raise the issue of competent representation “to the level of a paralegal,” while handling the appeal of an accused who was convicted while represented by a lawyer, causing a miscarriage of justice?

Justice Durno found that, while there may be evidence which could support a middle ground standard for paralegals, especially those who have graduated from accredited schools, “It has not been presented into evidence, nor is it readily available to the public.”

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Justice Libman - Photo: Tracey Gauley

Justice Libman – Photo: Tracey Gauley

The Hon. Justice Rick Libman was appointed to the Ontario Court of Justice in 1996. He serves as Chair, Rules Committee of the Ontario Court of Justice. He is well-known for his expertise with the rules of court and regulatory offences, and for encouraging the paralegal profession.

His publications include “Handling Provincial Offence Cases in Ontario, 2013,” and the “2013 Annotated Ontario Provincial Offences Act.”

3 comments

  1. Ronald Rybowski · ·

    When I was finishing up my formal education portion of being a paralegal my class mates as well as my teachers where asking me what areas am I going to focus in. Once I became licensed my fellow licensee suggested I should specialized in one area or two but no more than that. Since moving from Toronto to London I became more of a generalist due to one basic fact, I am building a business. However in a very short time I found my main area of practice is Part III POA, Small Claims, RECO and WSIB. Regardless of specializing or not I expect myself to to be held to the same standard as a lawyer. When we represent others where a decision can and most likely result in their future financial or freedom we have no choice to set the bar high, the issue of competency comes up regardless if you are a lawyer or paralegal. I found the smart legal practitioners know this and look more at the experience rather than the education.

  2. Tracey Gauley · ·

    What a great article Elizabeth! And certainly another great lecture from the Honourable Justice Libman. I paste below a line from your article:

    Rule 3.01(4) defines a competent paralegal as “one who has and applies the relevant skills, attributes, and values appropriate to each matter undertaken on behalf of a client.”

  3. Baruch Lipinsky · ·

    If a paralegal can be challenged on competency in this fashion, would it be a good idea to for paralegals to start receiving & advertising specialization? I know that there are some paralegals who only take traffic, or only take small claims, but most are generalists. Rather than being generalists, should we encourage specialization, and offer courses & CPDs to reflect this? This way, we can focus on becoming competent in our one (or two) chosen areas of specialty.

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