Can Paralegals use the Rules of Civil Procedure to Enforce Orders?

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	923
Page Categories:	[Commentary], [Law Society of Ontario]
Citation:	Can Paralegals use the Rules of Civil Procedure to Enforce Orders?, CLNP 923, <5Y>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2022/01/10

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Overview

The core question that I seek to answer is, does Rule 60.20 of Reg. 194: RULES OF CIVIL PROCEDURE authorize individuals licensed under the Law Society to provide legal service the authority to enforce orders intended to be enforced under Rule 60, by electronic means?

The Laws

By-Law 4

Scope of activities Class P1 Interpretation

6. (1) In this section, unless the context requires otherwise,

“amendment day” means the day sections 316 and 317.1 of An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts come into force;

“claim” means a claim for statutory accident benefits within the meaning of the Insurance Act, excluding a claim of an individual who has or appears to have a catastrophic impairment within the meaning of the Statutory Accident Benefits Schedule;

“party” means a party to a proceeding;

“proceeding” means a proceeding or intended proceeding,

(a) in the Small Claims Court,

(b) in the Ontario Court of Justice under the Provincial Offences Act,

(c) in a summary conviction court under the Criminal Code (Canada),

(i) in respect of an offence where under the Criminal Code (Canada) immediately before the amendment day an accused was permitted to appear or examine or cross-examine witnesses by agent, or

(ii) in respect of an offence under subsection 320.13 (1), subsection 320.16 (1), section 320.17 or subsection 320.18 (1) of the Criminal Code (Canada),

(d) before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, or

(e) before a person dealing with a claim or a matter related to a claim, including a mediator, a person performing an evaluation, an arbitrator or the Director acting under section 280, 280.1, 282 or 283 or 284, respectively, of the Insurance Act;

“Statutory Accident Benefits Schedule” means the Statutory Accident Benefits Schedule within the meaning of the Insurance Act.

Activities authorized

(2) Subject to any terms, conditions, limitations or restrictions imposed on the class of licence or on the licensee and subject to any order made under the Act, a licensee who holds a Class P1 licence is authorized to do any of the following:

1. Give a party advice on his, her or its legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.

2. Represent a party before,

i. in the case of a proceeding in the Small Claims Court, before the Small Claims Court,

ii. in the case of a proceeding under the Provincial Offences Act, before the Ontario Court of Justice,

iii in the case of a proceeding under the Criminal Code, before a summary conviction court,

iv. in the case of a proceeding before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, before the tribunal, and

v. in the case of a proceeding before a person dealing with a claim or a matter related to a claim, before the person.

3. Anything mentioned in subsection 1 (7) of the Act, provided the activity is required by the rules of procedure governing a proceeding.

4. Select, draft, complete or revise, or assist in the selection, drafting, completion or revision of, a document for use in a proceeding.

5. Negotiate a party’s legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.

6. Select, draft, complete or revise, or assist in the selection, drafting, completion or revision of, a document that affects a party’s legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

60.20 Only the following persons may have documents issued electronically or may file documents electronically under Rule 60:

1. A lawyer or a person licensed under the Law Society Act to provide legal services in Ontario.

2. A person who has filed a requisition with the registrar to provide for the electronic issuance and filing of documents in relation to the enforcement of an order.

3. A Minister or body acting under the authority of an Act of Canada or Ontario. O. Reg. 487/16, s. 13.

Alberta (Director of Child, Youth and Family Enhancement) v DCR, 2019 ABQB 47 (CanLII)

[66] Subsection 126(1) begins as follows: “The Minister ... may disclose or communicate personal information ...” [emphasis added]. Under s 28(2)(c) of the Interpretation Act,

In an enactment, ...

(c) “may” shall be construed as permissive and empowering.

[67] Paragraph 28(2)(c) is compelling. However, s 3(1) of the Interpretation Act qualifies its application: “This Act applies to the interpretation of every enactment except to the extent that a contrary intention appears in this Act or the enactment” [emphasis added]. Professor Sullivan has cautioned that “may” language is not determinative. Statutory context may dictate that what might appear to signal a discretion is actually an obligation. “Both conceptually and in practice, permission and obligation are overlapping categories. An official who is obliged to do a thing is implicitly permitted to do it; an official who is permitted to do a thing may, in addition, be obliged to do it:” Construction of Statutes, §4.57. “The interpreter must determine whether there is anything in the statute or in the circumstances that expressly or impliedly obliges the exercise of the power:” Construction of Statutes, §4.62. See Alberta v Sykes at paras 24 and 31.

[68] It is not that the word “may” can ever itself be transformed to mean “shall.” Rather, the authority or power denoted by “may” could be coupled with a duty. The duty would be inferred from statutory purpose and other aspects of the Act or (as in the SKD case) from legislative or constitutional sources outside the Act.

Canada Post Corporation v. Hamilton (City), 2016 ONCA 767 (CanLII)

[8] These provisions authorizing Canada Post to place mail receptacles on municipal roads continue in Canada Post a power that was previously enjoyed by the Postmaster General. Under The Post Office Act, 1867, c. 10, s. 10(14), the Postmaster General was authorized to place mail receptacles “in the streets … or other public place where he may consider such Letter Box to be necessary” (emphasis added). A later version of that statute was more explicit in the grant of discretion: “the Postmaster General shall administer … the Canada Post Office, and … provide and arrange for the erection of letter boxes or other receptacles at such locations as he deems appropriate” (emphasis added): The Post Office Act, S.C. 1950-51, c. 57, s.5(f). The power to install mail receptacles on municipal roads is a power that has been exercised by Canada Post and its predecessors from Confederation.

[22] Canada Post successfully challenged the By-Law on six grounds, and the application judge declared it to be inapplicable and inoperative with respect to the installation of CMBs by or on behalf of Canada Post.

[25] Third, the application judge characterized the subject matter of the By-Law as in pith and substance the control of the location of CMBs, which he concluded is “ultra vires the authority of the City, even though it is within an aspect, i.e. roads, that the City has jurisdiction.” The application judge’s conclusion on vires was influenced by his view that the By-Law was adopted as a means to stop the transition to CMBs: “[t]he by-law was purposely created by councillors with the avowed intention of stopping the transition of home delivery to CMBs, an intention expressed in a by-law which essentially takes over [Canada Post’s] decision making in choosing a business model.”

[45] The Supreme Court has recently clarified its jurisprudence on what is required for a conflict: Alberta (Attorney General) v. Moloney, 2015 SCC 51, (2015) 3 S.C.R. 327, at paras. 17-29. It summarized when a conflict will occur, at para. 29:

[I]f the operation of the provincial law has the effect of making it impossible to comply with the federal law, or if it is technically possible to comply with both laws, but the operation of the provincial law still has the effect of frustrating Parliament’s purpose, there is a conflict.

[87] I therefore conclude that there is a conflict between the By-Law on the one hand, and the CPCA and the Regulation on the other, and the application judge made no error in so finding. The By-Law is thus inoperative to the extent of the conflict, including both the permitting and moratorium provisions as they apply to Canada Post.

Interpretation Act, R.S.O. 1990, c. I.11

4. The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to the circumstances as they arise, so that effect may be given to each Act and every part of it according to its true intent and meaning. R.S.O. 1990, c. I.11, s. 4

6. Where an Act confers power to make, grant or issue an order, warrant, scheme, letters patent, rule, regulation or by-law, expressions used therein, unless the contrary intention appears, have the same meaning as in the Act conferring the power. R.S.O. 1990, c. I.11, s. 6.

28. In every Act, unless the contrary intention appears,

as to jurisdiction

(a) where anything is directed to be done by or before a provincial judge or a justice of the peace or other public functionary or officer, it shall be done by or before one whose jurisdiction or powers extend to the place where it is to be done;

implied powers

(b) where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all such powers shall be understood to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing;

powers and duties to be exercised and performed from time to time

(e) where a power is conferred or a duty is imposed on the holder of an office as such, the power may be exercised and the duty shall be performed from time to time as occasion requires;

to be exercised and performed by holder of office for time being

(f) where a power is conferred or a duty is imposed on the holder of an office as such, the power may be exercised and the duty shall be performed by the holder of the office for the time being;

Law Society of British Columbia v. Mangat, 2001 SCC 67 (CanLII), [2001] 3 SCR 113

1 The central issues raised by this appeal are whether ss. 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2, are intra vires the federal Parliament, and whether a provision of the Legal Profession Act (then S.B.C. 1987, c. 25, s. 26; now S.B.C. 1998, c. 9, s. 15) which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law is constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations.

A. British Columbia Supreme Court (1997), 1997 CanLII 2112 (BC SC), 149 D.L.R. (4th) 736

11. Before Koenigsberg J., the respondents Mangat and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB. Koenigsberg J. held that the threshold question was whether the Immigration Act authorizes the practice of law. She concluded that the Immigration Act does not authorize the practice of law and therefore does not shield the respondents from the requirements of the Legal Profession Act. She held that, there was no rational connection between the stated policy of the Immigration Act or the requirements that hearings be conducted as informally and expeditiously as possible and the authorizing of untrained, unqualified, or unregulated persons to appear before the IRB representing persons for a fee. She held that although unpaid agents could represent aliens, ss. 30 and 69(1) authorize the paid employment of other licensed counsel, and that only lawyers are licensed in the absence of an alternative licensing regime established under s. 114(1)(v) of the Immigration Act. Relying on the reasoning of the Court of Appeal of British Columbia in Law Society of British Columbia v. Lawrie (1991), 1991 CanLII 659 (BC CA), 59 B.C.L.R. (2d) 1, she stated that the protection of the public is best served by requiring that persons appearing before immigration tribunals as counsel be licensed, and that the objectives of the Immigration Act are not served by authorizing a different class of professional to represent persons. Finally, having regard to constitutional norms, this interpretation avoids creating a conflict between federal and provincial laws.

12. While Koenigsberg J. disposed of the appeal on this basis, she nevertheless considered the constitutional issues in the event that she erred in her conclusion. She accepted that both the Legal Profession Act and the Immigration Act are each a valid exercise of power within the constitutional jurisdiction of the respective governments, specifying that the Immigration Act fell within ss. 91(25) and 95 of the Constitution Act, 1867. Applying the framework set out in General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641, she then held that the Immigration Act is a valid regulatory scheme, but one that makes a substantial intrusion into the provincial power with respect to the regulation of law in the province because the creation of an unregulated profession of the practice of law leaves the public unprotected. In her view, without ensuring a standard for the practice of law by creating a licensing body, there was no rational connection between such an intrusion and the stated policy or the requirements that hearings be conducted informally. She concluded that ss. 30 and 69(1) of the Immigration Act were ultra vires Parliament insofar as they authorize the practice of law by non-lawyers.

13. In addition, Koenigsberg J. held that the interjurisdictional immunity doctrine did not apply in this case on the grounds that it is restricted to cases involving federal undertakings (including federal works, things, or persons). Indeed, constitutional jurisprudence has approached the creation of interjurisdictional immunities consciously, with the design of a flexible federal system in mind. Finally, she noted that the paramountcy doctrine also does not apply given that the potentially conflicting federal legislation is ultra vires.

14 Since she found that a number of the respondents’ activities constituted the unlawful practice of law within the meaning of the Legal Profession Act and were therefore outside the ambit of the Immigration Act, Koenigsberg J. issued the injunction on the grounds that the Immigration Act did not authorize the practice of law. Alternatively, she would have granted the injunction on the basis that the provisions were ultra vires Parliament.

Law Society of Ontario v Leahy, 2018 ONSC 4722 (CanLII)

[19] The Supreme Court held that to the extent that there was a direct conflict between the BC law and the Federal law, the Federal law was paramount, but that absent a direct conflict the two laws could remain in force and co-exist. In that case, the Court found that there was a direct conflict with respect to one part of the arrangement since the Immigration Act permitted non-lawyers to provide legal services for compensation whereas the LPA prohibited them from providing those services. However, the Court went out of its way clarify that non-lawyer appearances were limited to proceedings before the IRB, and emphasized that the Immigration Act did not permit the practice of immigration law by non-lawyers for any other purposes (including appearances before the Federal Court).

[20] Accordingly, the Mangat case never did authorize a non-lawyer such as the Respondent to practice law in the Federal Court. Now, however, even the limited exception which that case left open for practicing before the IRB has been removed. The old version of the Immigration Act has been repealed and has been replaced by IRPA. Section 91(2) of IRPA now restricts practice before the IRB to lawyers and paralegals who are members of a provincial law society (or of the Chambre des notaires du Quebec), or members of the Immigration Consultants of Canada Regulatory Council (“ICCRC”). The Respondent is not a member of any of those organizations.

[21] I note that the Respondent contends that there is currently yet another conflict between the LSA and the IRPA, with a view to arguing that, as stated in Mangus, in the event of a conflict the federal statute prevails. He submits that the IRPA “permits anyone to provide immigration assistance gratis but the LSA…makes no exception for providing legal assistance without a fee.”

[22] In the first place, this is not a conflict that triggers the federal paramountcy doctrine. As the Supreme Court stated in the leading case of Multiple Access Ltd. v McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 SCR 161, 191, federal statutes are declared paramount, and the provincial statute inoperative, where “‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other.” That is not the case here. The IRPA does not affirmatively authorize an unlicensed person to provide legal services, whether for free or for a fee.

[23] In a provision that has no bearing on the Respondent’s Federal Court and advice-giving activities, section 167(1) of the IRPA authorizes the provision of unpaid legal services to persons with cases before the IRB. However, that provision must be read in conjunction with section 91(2) of the IRPA which, as set out above, requires that the provider of such services be a member in good standing of a provincial law society or the ICCRC. In other words, section 167(1) of the IRPA clarifies that the requirement that advocacy be done by a provincially licensed paralegal, lawyer, Quebec notaire, or ICCRC member, applies to services provided on a pro bono as well as a fee-paying basis.

[24] In any event, the evidence in the record is clear that the Respondent does not in fact engage in the provision of pro bono legal services. He renders his legal services for fees, and these fees are the source of his income. That income-producing practice is prohibited.

Law Society of Ontario v. Leahy, 2018 ONCA 1010 (CanLII)

[8] We conclude that the motion judges correctly found the appellant was in clear breach of s. 26.1 of the Law Society Act. It was therefore open to them to grant permanent injunctive relief under s. 26.3 of the Act to bring an end to the appellant’s prohibited conduct.

[9] The appeals are dismissed.

Timothy Edward Leahy v. Law Society of Ontario, 2019 CanLII 45272 (SCC)

The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Numbers C65203 and C65808, 2018 ONCA 1010, dated December 10, 2018, is dismissed with costs.

Regina v. Lawrie and Pointts Ltd., 1987 CanLII 4173 (ON CA)

The learned trial judge found that both respondents had acted as barristers or solicitors within the meaning of s. 50(1) of the Law Society Act. This finding was challenged by the respondents in this appeal but, since it is amply supported by the evidence, it should not be disturbed. The respondents were charged only with acting as barristers or solicitors and not with holding themselves out or practising as barristers or solicitors which are the other activities prohibited by s. 50(1).

Nevertheless, the trial judge acquitted both respondents. He held that the Provincial Offences Act permitted them to act as agents and that, consequently, they fell within the exceptions that were "otherwise provided by law" in s. 50(1) of the Law Society Act. He said [at p. 537 O.R., p. 162 C.C.C.]:

"On all the evidence, bearing in mind that in the opinion of this court s. 48(3) of the Provincial Offences Act, that is, the burden section, means the burden is only upon the defence to satisfy a court on the balance of probabilities that an authorization, exception, exemption, or qualification operates in his favour, that Mr. Lawrie has done that in this case as has Pointts Limited. They have satisfied the burden cast upon them of showing that this exemption is provided for by the various sections of the Provincial Offences Act, certainly not expressly, but impliedly, and as a result, the defendant Lawrie and the defendant Pointts Limited must receive the benefit of the doubt on these informations, and the charges will be dismissed."

[...]

Despite the long participation of agents in judicial proceedings, they have been the subject of only one reported decision and little has been written about them. In R. v. Duggan (1976), 1976 CanLII 1392 (ON CA), 31 C.C.C. (2d) 167, this court held that right of audience of an agent was confined to the court which was specifically authorized by statute. Thus an agent authorized by s. 735(2) of the Criminal Code to appear in a summary conviction court was not entitled to appear on an appeal from conviction before the County Court. MacKinnon A.C.J.O. stated at p. 169:

It is clear that s. 50 does not allow, unless otherwise provided, non-barristers or solicitors to practise in the Courts, and non-barristers have not been permitted over the years to represent parties in either civil or criminal proceedings in the County or Supreme Court. When the Legislature, which is competent in this field, wished to make exceptions to s. 50 they did so in clear terms, as for example, s. 100 of the Small Claims Courts Act, R.S.O. 1970, c. 439:

"100. A barrister or solicitor, or any other person not prohibited by the judge, may appear at the trial or hearing of an action as agent for a party thereto."

(see also: the Mechanics' Lien Act, R.S.O. 1970, c. 267, s. 38(8).) It is of some historical interest to note that over a hundred years ago, in considering the predecessor section of s. 50(1) it was held that it was contrary to law and public policy to permit a person who was not a barrister to appear as an advocate in a County Court: Re Brooke (1864), 10 U.C.L.J. 49.

One is entitled, in my opinion, to take judicial notice of the extent of the business carried on in this province by persons acting as agents under the Provincial Offences Act quite apart from those performing other paralegal services. While it is the view of the law society that agents are not entitled to operate a business for reward, the obvious fact is that they do and have done so for many years. Writing in 1971 about encroachments on the legal profession, Mark M. Orkin observed: "[T]he 'small claims' field of practice is no longer financially attractive to most lawyers, hence the emergence of division court 'agents', non-lawyers who openly carry on this type of business." (Orkin, Mark M. "Professional Autonomy and the Public Interest: A Study of the Law Society of Upper Canada", D.Jur. dissertation, York University, 1971 at p. 182.)

[...]

It is ironic that there is lack of clarity in the statutes governing the legal profession and their application to the respondents. I commend for the Legislature's attention the clarification of this legislation and also the status of agents and other paralegals which is now a matter of considerable public discussion.

For the foregoing reasons, I would dismiss the appeals with costs.

Appeal dismissed.