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Posted on October 1, 2013 | Posted in Lawyers' Issues

For about 20 years, a controversy swirled in legal circles. What to do with unlicensed, non-lawyer, legal practitioners who practised law under the “paralegal” moniker? Ultimately, Michael Bryant, the then Ontario attorney general, decided that, if it agreed to do so, the Law Society of Upper Canada would regulate paralegals.

LSUC had two major incentives to take on this responsibility:

1. The Province would amend the Law Society Act to give LSUC the power to seek injunctions restraining unauthorised practice. Previously, LSUC could only prosecute criminally. It was a very expensive, time-consuming, and blunt instrument for compliance and did not produce good results.

2. LSUC could define the areas in which paralegals could practise. LSUC restricted these areas to some basic litigation and tribunal areas (e.g. highway traffic offences, residential tenancy disputes, etc) and disallowed paralegals from practicing in areas considered as solicitors’ work.

LSUC now regulates paralegals and the Law Society Act was amended by adding section 26.3, allowing LSUC to apply to the court for an order prohibiting a person from contravening the basic “though shalt not practise law or provide legal services if not licensed” section (s. 26.1).

Does LSUC exercise its section 26.3 power? It does: see Law Society of Upper Canada v. Chiarelli (2013), 115 O.R. (3d) 53 (S.C.J.).

Personal Rep

A property manager (PM) decided that, besides his normal duties of managing property, he should have the right to attend before the Landlord and Tenant Board as a landlord’s personal representative. The PM was neither a lawyer nor a paralegal.

A tenant took issue with the PM’s attendance before the Board. The PM argued he could appear before the Board, not because he was licensed, but because the Residential Tenancies Act defined a landlord as an owner of a rental unit and “the heirs, assigns, personal representatives and successors in title of an owner” and he was the landlord’s personal representative.

The Board member rejected this argument, stating:

“Clearly, it is contrary to any common sense approach to statutory interpretation for the Board to interpret “personal representatives” to include “paid legal representatives” as to do so would completely defeat the entire process of licensing legal professionals, and make the Board the only tribunal in Ontario where legal professionals can operate completely unregulated. Such a result would be an absurdity and cannot possibly have been the intent of the legislature in creating the Act or for that matter the Law Society Act.”

We can only assume the PM was unrepentant – because LSUC brought a court application to enjoin the PM from practising law.

Reprise

The PM, who was represented by counsel, put forward the same “personal representative” argument. The judge first noted, “when the Respondent appears before the Board, he is providing legal services. Appearing before an administrative tribunal as a paid representative to make submissions, examine witnesses, and cross-examine witnesses is quintessentially legal or paralegal work.” The judge then stated,

“Given the phrase “heirs, assigns, personal representatives and successors in title” the Legislature’s intention is obvious. The definition is not meant to catch a paid legal representative in the position of the Respondent. If it did, that interpretation would certainly clash with the intent of the Legislature as set out in s. 26.1 of the Law Society Act. ”

The PM also argued he was a landlord’s agent and therefore could represent the landlord. The judge agreed that he was a landlord’s agent and that the Residential Tenancies Act referred to a landlord’s agent. But so what. The sections only dealt with who could exercise a landlord’s substantive powers in certain circumstances, not whether someone could appear before the Board as a paid representative of a landlord. LSUC was not attempting to prohibit the PM from acting as a property manager, but from acting as an unlicensed legal professional.

Injunction

The court has substantial discretion in issuing an injunction. Normally, an applicant must show that damages and other remedies will not suffice. Not so when the person seeks the injunction to enforce public rights under a statutory remedy. In that case, “hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed.”

The judge happily issued the requested injunction.

Abuse

LSUC had argued that it was an abuse of process for the PM to make the same arguments before him that the Board had rejected, regardless that LSUC was not represented at the Board hearing. The judge agreed. He stated that he would have refused to allow the PM to make the same arguments before him that the Board had rejected – even though he did, but rejected them.

Costs

The judge dealt with costs perfunctorily, stating only “under the circumstances I exercise my discretion and make no order as to costs.” This, we suggest, is an absurd result. If not these, what circumstances would allow for an award of costs? Why should lawyers and paralegals, who fund LSUC, be forced to pay to shut down a PM already told that his arguments have no merit?

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