PARALEGAL LICENSING
MEMBER UPDATE - September 30, 2010
On September 29, 2010, the Law Society of Upper Canada made the decision to amend its by-laws and to remove the s.30(1)(7) paralegal licensing “exemption” that OPPI members enjoyed.
Q: Does this mean that I will now suddenly be accused of practicing law or improperly providing legal services?
A: No. It is the view of the Law Society and OPPI that the vast majority of OPPI members are not affected by this change.
The following Q&A will refresh your memory as to the status of OPPI members, and describe and explain the recent developments with respect to paralegal licensing. In preparing this status report, OPPI staff have met and spoken at length with Law Society staff.
Q: Remind me, what was “paralegal licensing” and why did it concern me at all?
A: The Law Society Act was amended so that individuals who practice law or provide legal services were required to be licensed by the Law Society as a lawyer or a paralegal. At the same time, the Act defined legal services very broadly, including providing legal advice, drafting documents, negotiating legal interests, and representing a person in a proceeding. Because the definition was so broad, many OPPI members were probably providing some “legal services” at some point in their practice.
It should be kept in mind that the actual main intention of the paralegal licensing initiative was to protect consumers from unqualified agents in areas such as workers’ compensation and auto insurance benefits, etc.
Q: So OPPI members had to become licensed by the Law Society as paralegals?
A: No. There were several “exemptions” to this requirement built into the Act and into the Law Society by-law #4. The exemption that has recently been removed was only one of them. As mentioned above, the Law Society and OPPI believe that the vast majority of OPPI members still do not require to be licensed as paralegals.
Q: What is the main exemption that applies to OPPI members?
A: Section 28 of the Law Society by-law in question provides that a person is deemed not to be practicing law or providing legal services if that person is acting in the normal course of carrying on their profession – as long as they do not represent a person in a proceeding. Therefore, if it is in the normal course of carrying on their profession, OPPI members can provide legal advice, draft documents, and negotiate legal interests.
This exemption does not allow OPPI members to represent individuals in proceedings, for instance to advocate for a client before the Ontario Municipal Board. But OPPI members always retained, and still retain, their ability to appear before any court or tribunal as expert witnesses.
Q: Can I represent clients before a Committee of Adjustment?
A: Yes, you can. The Law Society received a number of submissions from municipalities regarding how unworkable it would become if only licensed paralegals and lawyers were allowed to represent individuals before Committees of Adjustment. As a result, the Law Society has amended its by-law at s.28(3) so that representing an individual before a Committee of Adjustment is not considered to be “providing legal services.” This means that an OPPI member can represent a client at a Committee of Adjustment without being licensed as a paralegal.
Q: What about other bodies I may appear before?
A: The Law Society Act allows only lawyers or licensed paralegals to represent individuals before “adjudicative bodies.” But adjudicative bodies are defined as bodies that make decisions. If a body merely makes a recommendation to the actual decision-maker, then that body is not an adjudicative body, and anyone (including a professional planner) can represent individuals before it. A municipal heritage committee under the Ontario Heritage Act, or an officer conducting a hearing under the Ontario Planning & Development Act or under the Expropriations Act, would appear to fall into this group.
Q: Are there any other exemptions that may apply to me?
A: Some OPPI members may be covered by the “in-house” or “single employer” exemption at s.30(1)(1) of the Law Society by-law. Although this exemption remains in place, the Law Society is encouraging those who rely on it to obtain a paralegal licence, under the new "Integration Project".
Q: Why has this change occurred at this time?
A: The Law Society by-law that set up the exemptions in 2007 also required the Law Society to assess them in 2009 to consider whether they should be continued, varied, or revoked. That assessment took longer than expected and has only recently been completed.
Q: What was the s.30(1)(7) exemption really about, then?
A: This exemption allowed OPPI members to “occasionally” provide services that paralegals are allowed to provide. Paralegals are allowed to represent a person in certain “proceedings” (such as tribunals and lower courts), and to provide associated legal services such as legal advice with respect to that proceeding, drafting documents with respect to that proceeding, and negotiating legal interests with respect to that proceeding. You will note from the italicized phrases that the legal services covered by this exemption are actually much narrower than those covered by the s.28 exemption (see above).
The word “occasionally” was unfortunately not clear, but on the other hand it was appropriate: OPPI members would realize that acting as advocates or representing clients before adjudicative bodies on a frequent basis would be inconsistent with the OPPI Professional Code of Practice.
Q: So what difference does it make that the exemption is gone?
A: After the Law Society Act was amended, the OMB Rules of Practice and Procedure were amended to match it: only a person authorized by the Law Society would be allowed to represent a party at the OMB. Since the Law Society by-laws have been changed, OMB panels may no longer allow OPPI members to “represent a person.”
As noted above, OPPI members are of course still allowed to appear as expert witnesses. OPPI would also reiterate that in any event, it would be improper conduct under the Professional Code of Practice for an OPPI member to “advocate” on behalf of a client.
Q: Since the s.30(1)(7) exemption wasn’t crucial, I guess OPPI didn’t work too hard to maintain it.
A: But OPPI did feel that the exemption was helpful, and that in combination with the other exemptions noted above it provided some added comfort to OPPI members going about their business.
Therefore, OPPI staff and volunteers lobbied to maintain this exemption, through on-going correspondence and meetings with Law Society staff and the Law Society’s Paralegal Standing Committee during the period all the exemptions were being reviewed and reconsidered. However, the Law Society has adopted a policy of working towards the removal of exemptions that are not absolutely necessary.
Q: So even without the s.30(1)(7) exemption, the s.28 exemption alone means I can provide legal services without becoming a licensed paralegal?
A: OPPI cannot provide legal advice to its members, but OPPI believes that its typical member, acting within the normal course of the planning profession, does not improperly provide legal services. However, your practice may be unusual, and you may wonder whether you sometimes act outside the normal course of the planning profession. In that case, you should consult with your own legal advisor and/or the Law Society as to your situation.
Q: So if I’m just going about normal average planning work, no one can complain about me to the Law Society?
A: With or without any particular exemption, there has never been any way to prevent someone from complaining to the Law Society about someone. If someone did complain about you, the Law Society would have a legal duty to investigate the matter. If they considered that you were practicing law or providing legal services that you were not authorized to provide, they would ask you to desist. If you continued, they could prosecute you on that basis.
But it is true that the Law Society has never expressed to OPPI any general opinion that OPPI members were acting outside the normal course of their profession, or improperly providing legal services. Inaccurate complaints to that effect would most likely be dismissed by the Law Society.
If you have any questions or concerns, please feel free to contact Brian Brophey, Registrar & Director, Professional Standards, at standards@ontarioplanners.on.ca