JUSTICE

THROWN OUT OF COURT

KATE LUNAU June 16 2008
JUSTICE

THROWN OUT OF COURT

KATE LUNAU June 16 2008

THROWN OUT OF COURT

Are Ontario’s legal regulators putting paralegals out of jobs?

KATE LUNAU

JUSTICE

Emily Ross knows her

way around a courtroom: she and her “noncompliant” ex-husband have been before a judge several times over the years, battling over support payments for their three children. Because the Ontario woman couldn’t afford to hire a lawyer, she went to a paralegal. “She helped me with the paperwork,” says Ross (not her real name). “She gave me the courage to stand in front of the judge. She was amazing.” Not only that, Ross estimates that hiring a paralegal, instead of a lawyer, saved her $300,000 in legal fees.

Still, Ross says her ex-husband owes her $80,000 in child support at the moment, money that will almost certainly go unpaid, as Ross’s paralegal has notified her she can no longer help her. Paralegals have recently become licensed professionals in Ontario, and as a condition of licensing, they are barred from working in family law. “I’m devastated,” says Ross. She is too intimidated to represent herself in court against her ex-husband’s lawyer, and can’t afford to retain one of her own. “I want to make him accountable,” she says. “But I can’t.”

Unlicensed and sometimes uninsured, paralegals were long seen as misfits of the legal community. They were also a cost-effective alternative for many. In May, the first paralegal licences were issued in Ontario, making that the first North American jurisdiction to formally regulate them. (Almost 1,800 have received their licences; the last few are now being sent out.) This gives the profession a veneer of respectability; it also protects the public. There’s just one problem, paralegals say: the regulator is the Law Society of Upper Canada (LSUC), traditionally the governing body for Ontario’s lawyerswho are arguably their direct professional competitors. “Paralegals have argued it’s like

Burger King regulating McDonald’s,” says Susan Koprich, spokesperson for the Paralegal Society of Ontario, who believes paralegals should be self-regulated. Already, the law society has moved to limit the services paralegals can offer: some areas where they once worked—like family law—are officially out of bounds. Now some Ontario paralegals are mounting a challenge to the new law, a process that’s in its preliminary stages.

The Competition Bureau concurs with Koprich. “A conflict of interest arises from having the [Law Society] regulate paralegals, given that they have an incentive to restrain the range of legal activities paralegals may offer,” the federal agency stated in a December report. But the LSUC—which was handed the task by the Ontario legislature—insists it’s right for the job. “We’ve been regulating legal services for almost 225 years,” says law society CEO Malcolm Heins. He insists the Bureau’s assertion is “flat-out wrong,” noting that licensed paralegals are now full members of the law society, just like lawyers— though paralegals grumble that they’re outnumbered on its governing board, comprised of 40 lawyers, eight members of the public and just two paralegals.

There’s another concern paralegals share: cost. “It’s going to become a lot more expensive to practise,” says Wanda Forsythe, chair of the school of legal and public administration at Toronto’s Seneca College. And those costs will be passed down to the public. Thanks

to a new education requirement, people wanting to take up the profession will now have to pay college tuition for a twoto four-year program; after that there are insurance costs, and a $500 application fee to the law society. Experienced paralegals could skip the education requirement if they paid $1,075 and wrote an exam. (Of 2,100 applicants, Heins says, about 95 per cent passed.) But all working paralegals are required to pay an annual fee—currently $845—to the LSUC.

Criminal lawyer Clayton Ruby, a board member with the law society, admits the new costs attached to becoming a paralegal will make their services more expensive. “The public is going to pay more,” he says. “But they’re going to get the protections of a regulated profession.” And that’s a good thing, he insists: prior to regulation, “a lot of paralegals were just frauds.” In one infamous example, Arturo Nuosci—an RCMP special constable dismissed for disgraceful conductopened a paralegal practice in Toronto, and legally changed his name to Maverick A. Maveric to drum up business. Nuosci was later convicted of defrauding the Canadian government of over $55,000 in disability payments, and went on to serve a prison sentence in the U.S. for charges ranging from identity theft to bank fraud.

In most parts of the country, paralegals work under the supervision of lawyers—and, by handling documents and other tasks, can actually help keep legal costs down. So regu-

USING A PARALEGAI. SAVED EMII.Y ROSS $300,000 IN HER CUSTODY CASE, BUT THE NEW LAW WON'T LET HER USE ONE

lating paralegals doesn’t seem to be a pressing concern. Kevin MacLean, who coordinates the paralegal services program at Nova Scotia Community College, speculates that independent paralegals never took off in his province because “legal fees are not what they are in Ontario.” In Ontario, though, independent paralegals have been taking cases of their own for decades. They’ve represented clients in small claims court, traffic court, tribunals, and criminal court, for summary convictions. Very few appeared with clients in family court, and they needed a judge’s permission to do so. Some para-

legáis would also prepare clients’ paperwork for uncontested divorces, wills and incorporations, although the LSUC says this was never legally permitted. “There was a vacuum in the system,” says Maureen Boldt, a former paralegal in North Bay, Ont. “These services were largely abandoned by lawyers, because it wasn’t cost-effective for them to do it.”

Ontario’s paralegals were able to fill this “vacuum” largely due to one man: Brian Lawrie, the ex-cop who founded POINTTS (the world’s largest independent traffic ticket agency) in 1984. Lawrie got the idea for POINTTS while serving as a Toronto police officer. The people he saw representing themselves in traffic court “weren’t properly presenting their defence,” he says. “They needed someone to speak for them.” That’s what he

decided to do. In 1985, the LSUC charged Lawrie with unlawfully acting as a barrister and solicitor. After a three-year legal battle, POINTTS was successful in establishing what its website calls “the business of court representation by a non-lawyer.” The independent paralegal business in Ontario took off.

Lawrie went on to open POINTTS offices in Alberta, where independent paralegals can operate in traffic court and other limited areas, and Manitoba, which took Lawrie to court but then changed its laws to allow non-lawyers to act for clients on highway traffic matters. British Columbia is closed to independent paralegals, as Lawrie found out: he tried to open a Vancouver office in 1988, but the Law Society of B.C. swiftly obtained an injunction to shut him down. “There was no messing about with that one,” he says. B.C. has since looked at paralegal regulation but no final recommendations have been made. (Tired of waiting, the B.C. Para-

legal Association is looking at licensing on its own.)

In Ontario, some paralegals worry that regulation could now shut them down. Joanne Bailey (not her real name), a Toronto paralegal, specialized in uncontested divorces. Many of her clients were single mothers and immigrants who “couldn’t afford a lawyer,” she says. She prepared all their paperwork, and made house calls to save them the time and effort. She says the LSUC once sent a private investigator, posing as a client, to check out her business. (The LSUC says this hasn’t been its practice in “quite some time.”) “I’ve been breaking the law for the last

20 years,” says Bailey, 52. Paralegals can’t handle uncontested divorces under the licensing scheme, so Bailey says she can’t get a licence unless she effectively starts from scratch. She’s planning to switch careers. Meanwhile, paralegal firm XCOPPER Inc. recently filed for bankruptcy.

Others—like Boldt, the former paralegal in North Bay—were even worse off. A four-term

city councillor, Boldt, 48, was sentenced to four months house arrest for the unauthorized practice of law and ordered to pay $ 35,000 in costs to the LSUC. (This was after being found in contempt of an earlier injunction). She completed her house arrest in February but lost her paralegal business and was kicked off her city council seat. In a press release, Ontario’s law society acknowledged this to be “the first time in living memory” such a sentence was handed down. Boldt—who at one time handled everything from clients’ wills to uncontested divorces—sees herself as a pioneer. “I was a hero in this city,” she says.

Even so, lawyers argue there’s good reason to keep paralegals out of certain areas, like family law: there’s just too much at risk. “There [could be] children involved. Or property. It’s serious stuff,” says Heins of the LSUC. “If you’re not properly advised, it can have a detrimental effect on the rest of your life.” Adds Ruby, “You have to exclude [paralegals] from areas that are simply too complex for them to cope with.” But others counter that some form of legal help is better than none at all. “There are kits out there that allow people to do divorces and wills,” says Judi Simms, president of the Paralegal Society of Canada. “But you can’t take that kit to a paralegal and say, ‘Help me fill this out.’ You have to do it on your own.”

In Canada, Emily Ross’s plight is all too common. Justice Marvin Zuker estimates that at least 60 per cent of litigants in his Toronto family court are unrepresented. The country’s top judge, Beverley McLachlin, has declared access to justice a “basic right” akin to education or health care. And yet those who don’t qualify for Legal Aid—which, in Ontario, includes any single person making over $15,000 a year—often end up doing their own legal work, or avoiding the system entirely. “For average Canadians, access to justice still remains an ideal,” McLachlin has said, “not a reality.”

Until everybody can get a lawyer, or navigate the justice system alone, paralegals will have a niche to fill. “We are going to be the providers of poverty law,” says paralegal Paul Dray, chair of the LSUC’s standing committee, which brings forward recommendations for approval by the board. Dray maintains there is a place for paralegals in family law. He admits most lawyers don’t agree. Nonetheless, “it’s on my agenda,” he promises.