Activist challenges Law Society's new control over paralegals

| December 18, 2009
Activist challenges Law Society's new control over paralegals

Harry Kopyto, well-known legal activist, is back fighting the Law Society of Upper Canada (LSUC), this time over the lawyer-controlled Society's newly acquired powers to regulate the paralegal profession.

Building on a swell of support for better regulation of the paralegal profession, the Ontario government passed the Access to Justice Act, 2006 (also known as Bill 14). The Act grants the Law Society -- a body comprised of lawyers traditionally tasked with governing themselves -- the formal authority for licensing paralegals. It also limits the scope of legal activities a paralegal can engage in, such as barring them from Family Court proceedings, and preventing them from doing a range of tasks related to real estate work, wills, and undefended divorces.

Despite the broad-based support for regulating paralegals (including from Kopyto himself), many were concerned that the regulation of one profession by its competing cousin could lead to a conflict of interest. Indeed, two seminal investigations into the matter warned against the option of regulating paralegals through the Law Society.

In 1990, the Ianni Task Force (headed by the late Professor Ron Ianni; then President of the University of Western Ontario) recommended that paralegals be regulated within the provincial Ministry of Consumer and Commercial Relations.

A decade later, then Superior Court Justice, Honourable Peter Cory emphasized in his report "that it is of fundamental importance that paralegals be independent of both the Law Society of Upper Canada and the province of Ontario." The "degree of antipathy" Cory uncovered by members of legal organizations towards the work of paralegals was so acute that he went on to recommend that "the Law Society should not be in a position to direct the affairs of the paralegals."

The Law Society, in its July 2000 response to the "Cory Report" rebutted his findings. Contrary to Cory's concern for both public protection and access to justice issues in devising a framework for regulating paralegals, the Society argued that such regulations (including the scope of paralegal practice) "should be resolved having regard only to the protection of the public." This, they argued, was in part due to the lack of any empirical evidence of Ontarians being denied access to justice in the first place.

Perhaps more importantly, the LSUC posited that substituting a lawyer with a paralegal would render clients without "any access to justice at all," for "[n]o amount of education and training short of that undertaken by individuals who later qualify to become lawyers [could] permit a paralegal to bring to a client's problem the knowledge, skills and abilities of a lawyer."

Come 2004, and with little progress on the self-regulation front, then Attorney General Michael Bryant (himself a lawyer) decided the time was ripe to make a move. The paralegal profession needed regulation and as far as Bryant and the Ontario Liberal Party were concerned, the Law Society was the appropriate body for doing so.

While the likes of the Paralegal Society of Canada and Professional Paralegal Association of Ontario (PPAO) formally opposed the decision, the latter's executive ultimately endorsed the move (and in doing so, worked closely with LSUC to facilitate the process). Various other stakeholders representing the public and private sector, as well as marginalised communities were similarly opposed. This included the likes of the Canadian Bankers Association, OPSEU (the Ontario Public Employees Union) and DAWN (the Disabled Women's Network Ontario). The bill was also formally opposed in the legislature by the provincial NDP.

Despite coming into law in 2007, the regulation of paralegals by lawyers has also raised the eyebrow of the Federal Competition Bureau. In January 2007, the Bureau cited anti-competitive concerns in a letter to Paul Dray, then President of the Professional Paralegal Association of Ontario (PPAO) and the current Chair of the Law Society's Paralegal Standing Committee. Similar concerns were raised in a December 2007 study targeting a group of self-regulated professionals, including lawyers. On the Law Society takeover of paralegal licensing, the study argued that such a regulatory structure would restrict the public's alternatives for legal services and place such law societies in a conflict of interest situation.

Notably, Dray now features in the latest skirmish with Kopyto.

As one of the members of the three-person panel assessing Kopyto's request for disclosure (and likely to hear the full case over his license application to be grandfathered as a paralegal), Kopyto is calling for Dray to step down.

The call is in part based on Dray's previous role as PPAO President, where he was a self-described leader of the proposed regulation under the Law Society. Kopyto alleges further that Dray was "the Society's inside man" who orchestrated a "backroom deal amongst the PPAO executive" at the very same time his membership was voting unanimously in favour of self-regulation. As noted above, Dray now sits as the Chair of the Law Society's Paralegal Standing Committee (where he is one of three former police officers out of the five paralegal represented).

With Kopyto's disclosure request including Dray's own personal correspondence and records on the matter, he is arguing that allowing Dray to remain on the panel presents a clear and significant conflict of interest.

The broader disclosure request, which is the focus of the upcoming Dec. 21 hearing at Osgoode Hall, revolves around whether the Law Society must provide Kopyto with a range of documents he alleges are in their possession that he believes are essential to his challenge of the regulation (and more generally for exonerating him from the allegations against him). The Law Society has indicated that it will only provide him with those documents on which they intend to rely.

Kopyto and the Law Society are old sparring partners. Back in the mid-1980s, Kopyto was found guilty of an antiquated form of contempt law -- Scandalizing the Court -- and ordered to apologize for a statement to a Globe and Mail reporter suggesting court bias for protecting the police. "The courts and the RCMP" said Kopyto, "are sticking so close together you'd think they were put together with Krazy Glue."

The so-called "Krazy Glue" incident referred to the court's role in an earlier case where Kopyto pursued charges against two RCMP officers who admitted their engagement in criminal conduct against a legitimate socialist group in the 1970s before a Royal Commission. His appeal of the contempt decision abolished the law he was charged under and resulted in strengthening the right of the public to criticize the courts.

Ultimately however, the Law Society won that battle, successfully having Kopyto disbarred from being a lawyer in 1989 for allegedly overbilling Legal Aid Ontario. The case was pioneering however for being the first to have a written dissent. Bencher Thomas J. P. Carey cited being so "fundamentally in disagreement with the majority in Convocation, as well as the Discipline Committee" that he felt compelled to put his reasons in writing.

Supporting Carey's view that there was no basis for the Society's initial claims of fraud, it is notable that the Legal Aid Plan never asked Kopyto to return any of the funds paid to him on the basis of his "inaccurate accounts." On the contrary, unrelated funds owing to Kopyto, which were frozen during the disbarment case were eventually paid to him in full.

The current constitutional challenge to the Law Society's takeover of the paralegal reaches far beyond Kopyto's story however. The monopolization of the governance of legal services by the Law Society represents a real danger to equality in access to justice for Ontarians and in particular the poor. The pre-holiday fireworks are bound to fly once again, when Kopyto presses his case on Dec. 21 at 9:30 a.m. at Osgoode Hall.

David Primack, as member of the Harry Kopyto Defence Committee has authored the above in his personal capacity.

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