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Two decisions consider status of paralegals versus lawyers

Courts rule against sitting past bar, holding professionals to same competency level
|Written By Yamri Taddese

As Ontario paralegals lost their bid to sit past the bar in courtrooms, another recent decision considered whether measurements of their competency should be subject to the same standard as lawyers.

An arrangement that makes paralegals wait until all lawyers finish their matters before they can go ahead is neither fair nor efficient, says John Tzanis.

Superior Court Justice Bruce Durno considered the question after an appellant in R. v. Bilinski accused his paralegal of deficient service to the extent that the guilty verdict in his case was in doubt.

Janusz Bilinski, who was facing an accusation of assault, argued that since the Law Society of Upper Canada has started regulating paralegals, “a person retaining a paralegal should now receive the same representation, as though he or she had retained a counsel,” according to the ruling.

Durno dismissed Bilinski’s argument, emphasizing that the differences between paralegals and counsel remain.

“There remains a clear distinction between the representation that an accused person is entitled to when they retain a lawyer versus when they retain a paralegal,” wrote Durno.

He added: “The appellant has provided no evidence that the LSUC or any other regulatory body has now assured the public that the representation level is the same. Indeed, the record supports a contrary conclusion.  The case-specific evidence on this appeal supports that conclusion.

“The appellant knew he was not retaining a lawyer. He knew the agent had less legal training than a lawyer and he knew the agent would charge less than a lawyer.”

The judge also dismissed the appellant’s alternative argument that there should be a new standard, “in essence a middle-ground,” to gauge the quality of service by paralegals. Bilinski argued such a standard would be lower than for counsel in that paralegals would be able to make more mistakes than lawyers.

“First, there is no set number of mistakes that lawyers can make before their conduct of the case reflects incompetence,” Durno responded.

“Second, to succeed on an appeal, there still has to be a miscarriage of justice established. While at some point the number of errors may become a factor, any new test would have to nonetheless focus on the quality or results of the errors and not the quantity.”

Durno’s June 14 decision preceded a ruling by Superior Court Justice Michelle Fuerst that found a justice of the peace’s order barring paralegals from sitting past the bar in court doesn’t constitute discrimination. Justices of the peace have jurisdiction over what they’d like to see happen in their courts, said Fuerst.

“The justice of the peace did not exceed her jurisdiction or breach the principles of natural justice in ordering that only lawyers sit in front of the bar when court was in session. The application fails on this issue.”

The application, brought by paralegal Marian Lippa, also sought a reconsideration of the order in which the court calls matters. Lippa took issue with a judicial officer’s order to hear matters brought by senior counsel before those of paralegals.

Although Fuerst said such an arrangement isn’t always appropriate, she didn’t see a breach of natural justice or the Charter of Rights and Freedoms in the preference for that particular order. “The order about the manner in which cases would be called in court did not impinge on Ms. Lippa’s life, liberty or security of the person. It may have impinged on her economic interest, but that is not an interest protected by s. 7,” wrote Fuerst.

Fuerst’s decision sets an important precedent, according to Nathan Baker, a lawyer who acted as an intervener in the case on the behalf of the York Region Law Association.

“I think that the recognition of the justice of the peace’s power to control their own courtroom, including seating and order of the call of the list, will be referred to for years to come,” he says.

“Not a lot of cases deal with issues such as this, so even the court’s obiter comments are likely to be referred to for some time to come.”

It’s also important that the case recognized paralegals “as a separate set of legal providers,” Baker says, noting that the distinction will help the public understand the difference between the two licensees and the services they provide.

But according to John Tzanis, president of the Paralegal Society of Ontario, an arrangement that makes paralegals wait until all lawyers finish their matters before they can go ahead is neither fair nor efficient.

“A lot of paralegals are charging much less than lawyers are. Having to wait all day to complete a five-minute matter and being paid 80 bucks or 100 bucks or something nominal to wait all day long while lawyers who are making $400, $500 an hour . . . are getting heard right away and can get back to their offices and make more money,” he says.

“Our entire day is blown in one minor matter,” adds Tzanis, who says the paralegal society is “disappointed” with the outcome of the Lippa application.

According to Tzanis, an order of call that makes paralegals wait until lawyers finish their matters is akin to telling poor litigants to wait until the court has addressed their rich counterparts.

“In the eyes of the client, how does this appear to them? That’s what we’re talking about here,” he says.

Tzanis says he hopes the law society and the Ministry of the Attorney General will work to smooth out these issues. But if it appears change will come no other way, he suggests Lippa will likely appeal the decision.

For more, see "Battle over paralegals' courtroom status heats up."

  • John
    Where is the LSUC? Why do paralegals pay for a license if they are not given any consdieration before the court? Why bother creating a licensing scheme if it is WORTHLESS? This gives the strong indication that LSUC has created this license and the supposed "scope of practice" as a cash grab. There has been no voice of support for paralegals from the LSUC giving further support that the entire Legal Industry views paralegals as suckers who pay a great deal of money to become licensed only to be treated like second rate citizens when representing clients well within the paralegals scope of practice. Lawyers have a different education and knowledge base, but in matters where paralegals are scoped by the LSUC to practice, they should be given the same conisderation or else the license is not worth the paper it is printed on
  • Gary
    I think that the order of calling a matter works to the advantage of clients so that the representation is not hard on their pockets.
  • Catherine
    The Lippa decision does not set the precedent that paralegals may not sit past the bar nor does it require that paralegals wait until all lawyer matters are completed. The Lippa decision states that a judicial officer including a JP has the inherent authority to control the process of his or her courtroom. Fuerst J. also states that the above situations may not be appropriate (which I agree with). Lawyers and paralegals alike are at the mercy of judicial officers in determining the order in which matters are heard. As frustrating as it may be to wait for your matter, it is important that a judge or a JP can control their own courtroom to ensure judicial economy. Much of this issue simply comes down to not having enough court resources. As a lawyer, I have been to many set date courts and motions courts on civil matters where lawyers have been required to sit in the gallery until their matter is called because there is simply not enough room to stand or sit before the bar.
  • Irene
    Both decisions state that lawyers and paralegals are not the same. The bilinski decision states That they are not equal even in their mutual scope of practise. It was also clear to the justice that the Lsuc has not made representations to the public that they are equals in there mutual practise areas but rather very differently educated. I don't see where paralegals believe the Lsuc has stated lawyers and paralegals are equals in their mutual practise areas.
  • Ken Jim
    To add to this discussion, there is also discrimination against lawyers when matters are being called.

    According to the Barristers Act, matters should be called in the following fashion:

    1. Queen Counsels go first;
    2. Then counsel to be called by year of call (earliest to most recent).

    So recently called lawyers should be called last. This tradition is definitely used in Windsor. So it's not just paralegals who face this problem.
  • Sarah Smale
    As a licensed paralegal, I would expect my clients to expect the same level of professionalism & competency in me as they would a lawyer, but realise that I have less legal training & restricted areas of practice. I would & I expect my fellow paralegals & lawyers to admit if an area is not their strong point.
    Matters should be dealt with in order of seriousness, the greater the crime, the greater the potential consequences, the older matters, should be dealt with as priority, & irrespective of whom the representative is. The decision to make paralegal matters wait until the lawyers are done is discrimination against paralegals, not Charter discrimination, but nonetheless, it is also discrimination against citizens who can not afford a lawyer or choose not to as they should be able to expect the same level of professionalism & competency on matters paralegals are permitted. The paralegal regime came from the Access to Justice Act; all citizens are entitled to equal justice.
  • Leonard Dabydeen
    The precedent has been set: (1) paralegals are not permitted to sit past the bar in courtrooms and (2) paralegals "ability to act for the accused in summary convictions is not coextensive with that of lawyers". We are non-lawyers. We are also less legal provider mortals(professionals?) who sit at the back-bench in courtrooms. So where all this leave us with our clients? I agree with John T. that this so unfair for us who want to practice within the limited scope set out by LSUC. But lawyers don't think so. And we have no way of convincing them than rely on the LSUC and probably the Ministry of the Attorney General. We are in the tunnel where the light is yet to shine.
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