Our defined practice area continues to be clarified by legislation and decisions from courts and tribunals. On the legislative front, Rules changes make it more difficult for unlicensed representatives to take work from licensees in the areas paralegals practice. Since January 1, the Rules of the Small Claims Court have included a new Rule:
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 affects representation before the Court. While it does not require all parties to be represented, it does place new limits on those who choose not to be represented by a paid licensee. The new rule works in conjunction with s. 26 of the Courts of Justice Act:
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.
Landlord & Tenant Board Applies LSUC Case
A Court of Appeal decision this year, referenced in at least one LTB decision, further clarifies the lawful role of non-licensees: Landlords must also be owners of properties they represent at the Landlord and Tenant Board.
Theoharis noted that the Court of Appeal in Chiarelli found that a person who meets the expanded definition of “landlord” under the Act — that is, a person who is not the owner of the property and is acting as a property manager — is not entitled to self-represent at hearings. In Chiarelli, the appeal court found that any right of self-representation is subject to the provisions of the Law Society Act.
Protecting the Public Through Regulation
Legislation explicitly deals with the right to self-representation. The Law Society Act, Section 8(3) permits self-representation only where an individual “is acting on his or her own behalf.” The Act provides exemptions for certain types of employees. These exemptions have been narrowed recently.
Courts have considered the issue of exemptions, as well as unlawful practice within the paralegal scope. Superior Court granted the Law Society of Upper Canada (LSUC) request for a declaration that Ontario Public Service Employees Union (OPSEU) employees cannot directly advise members of the public unless they have a paralegal licence. 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.
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).
Reporting & Ignoring: Risks
The Law Society warns the public about unauthorized practitioners. It is illegal for someone to claim to be licensed as a paralegal when they are not. It is illegal for someone to tell people that they can provide a legal service, legal advice or legal representation that they are not licensed to provide.
LSUC notes that an unlicensed provider:
- May not be properly trained to provide legal services
- Is not required to follow a code of professional conduct or to answer to a regulator
- Does not have to carry insurance for negligence and is not backed by a compensation fund. There may be no compensation for damages. If they take your money and provide no services in exchange, you may not get your money back.
All licensees are obliged to report unlicensed legal practice when they become aware of it. If you suspect that someone who is not licensed is providing, or advertising, legal services, or calling themselves a paralegal, tell the Law Society.
Unlawful Immigration Practice – Duty to Report
Despite legislation cracking down on crooked consultants, people still advertise unlawful services. The Immigration Consultants of Canada Regulatory Council (ICCRC) is the national regulatory authority designated by the government of Canada to safeguard those who seek immigration services such as visa applications and work permits.
Immigration consultants who provide Canadian immigration services for a fee must be registered with the ICCRC and accredited as Regulated Canadian Immigration Consultants (RCIC). ICCRC has a search tool, to check whether an immigration service provider is regulated and insured.