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| Michael M. Lerner |
Lawyers in Ontario have been slow to accept licensed paralegals as partners in the delivery of legal services in the province. That resistance continues today as paralegals are denied access to virtually all county and district legal resource centres which is the most recent iteration of law libraries. I believe that what separates lawyers and paralegals should not be based on simply an “us against them” perspective. When it comes to the delivery of legal services, if something will promote greater access to justice, petty differences should be set aside.
In 1984, Brian J. Lawrie formed a company known as POINTTS that consisted primarily of retired police officers who represented those charged with traffic offences in provincial offences courts. In 1987, the Law Society of Upper Canada, as it then was, took Lawrie and his associates to court alleging that they were illegally providing legal services without being licensed to practise law. The law society lost in the Court of Appeal and these unlicensed “court agents,” as they were then called, began to spring up across the province (Regina v. Lawrie and Pointts Ltd. [1987] O.J. No. 225).
In 1988, the Ontario government commissioned a report dealing with this issue. Essentially, the report gathered dust until 1999, when the Honourable Peter Cory headed a task force to examine the issue of non-lawyers appearing in courts. His report that recommended, amongst other things, that paralegals be licensed, was not accepted by the government at the time.
In 2001, the law society created another task force that did a further comprehensive review of non-lawyers representing others in the courts. When that task force reported to the government, the then attorney general Michael Bryant advised the law society that paralegals would be licensed and regulated. That decision was formalized on Oct. 19, 2006, in the Access to Justice Act, 2006.
That legislation directed that paralegals were required to be licensed and would be regulated by the law society. From the time that took effect (May 1, 2007), paralegals have joined lawyers as members of the law society and thereby regulated and licensed to provide legal services in Ontario.
That legislation met with significant objection from some members of the bar who maintained that to allow individuals who weren’t members of the bar to practise law did a disservice to the public. To say that they were not welcomed by some members of the bar would be an understatement. Over the intervening years, the scope of legal services provided by paralegals has increased so that they now regularly represent clients before administrative tribunals, before the small claims court and in the provincial offences court thereby expanding the delivery of legal services and enhancing access to justice.
Let me say that I unequivocally support the existence of paralegals. I believe they provide a valuable service in promoting and increasing access to justice in Ontario.
Should they be afforded equal status with lawyers? Of course not! When I was a bencher, I was confronted by an aggressive paralegal who said that, as a member of the law society, she should be permitted to do anything done by a lawyer. I responded that I agreed … all she had to do was to get an undergraduate degree, spend three years at law school, complete articles and get called to the bar! I strongly support restrictions on the scope of practice of paralegals.
Having provided this background, I now go back to where I began. I believe that lawyers should accept that paralegals are our partners in the delivery of legal services to Ontarians. Lawyers should assist paralegals to be positioned to provide the best possible legal services to their clients, as this promotes access to justice. In keeping with this, I support allowing paralegals having access to our county and district resource centres (law libraries) on conditions. Currently, approximately $188 of lawyer law society annual fees go directly to support the resource centres. No part of paralegal law society annual fees go to the support of these centres. If paralegals are to have access, which will assist them to provide the best possible services to clients, they should share in the cost of maintaining the centres and pay their fair share. I do not know upon what terms it is permitted, but some, not many, law associations currently do permit paralegal access. The County of Carleton Law Association is a leader in this field and a paralegal trustee was recently elected to its board of directors.
Resource centres enhance an individual’s ability to provide quality legal services. In my view, anything that allows the delivery of the best possible services to the public is something I support. As lawyers we recognize the value of resource materials and, in the case of our local situation, the invaluable service our library staff can provide on short notice. Why should not every person who has the benefit of legal representation have the best possible access to such resources?
To me, the question is simple. Should paralegals have access to our resource centre? If the answer is “yes,” then the second question is “on what terms?”
The public interest and fairness should be the fundamental considerations. What can we do to ensure that individuals have the best representation possible? Valuable resources already available at an effective cost should be shared, with equal contribution to the cost.
The more difficult question that could arise is whether self-represented individuals should be given access to the resource centres. Should they not have the opportunity to best inform themselves before appearing before a tribunal or court? That discussion I will leave to another day.
Michael M. Lerner is partner at Lerners LLP in our London office. A former LSO bencher and vice-chair of the Ontario Human Rights Tribunal, Michael handles matters related to commercial litigation and employment law as mediator and counsel.
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