The battle for paralegal rights is heating up as lawyers intervene in a practitioner’s challenge over courtroom restrictions that favour counsel and a five-year review of paralegal regulation released by the provincial government last week recommends changing the legislation that restricts paralegals.
“References in certain statutes to ‘barrister,’ ‘solicitor,’ ‘member of the bar,’ etc. that predate the introduction of paralegal regulation can serve to exclude paralegals, even when that exclusion might, in fact, impede public access to justice and/or protection of the public interest,” wrote David Morris of D.J. Morris & Associates Ltd. in his new report on paralegal regulation. “Provision in the Barristers Act with respect to the order of precedence at the bar, for instance, could prejudice clients’ right to be heard if they exercise the right to be represented by a paralegal.”
Morris, who prepared the report for the Ministry of the Attorney General, went on to recommend that “language in statutes that serves to exclude paralegals, when that exclusion cannot be justified in the interest of facilitating access to justice or protecting the public interest, is amended so as to include paralegals.”
The recommendation comes as paralegal Marian Lippa has been waging her battle against a practice of making paralegals wait to appear in court until all of the lawyers have finished and forcing them to remain in the body of the court or the hallways rather than sit past the bar. She argues the practice stems from an archaic notion based on the Barristers Act, a piece of legislation developed prior to the introduction of paralegal regulation in 2007.
Her challenge of the practice will resume when her certiorari application returns to court on Nov. 19. Lawyer groups will be at the table as well. Both the Criminal Lawyers’ Association and the York Region Law Association have obtained intervener status.
“We want to have a spot at the table,” says Norm Panzica, president of the York law association. “We’re not here to square off against them.”
Breese Davies, counsel for the CLA, says she’s taking no position on where paralegals sit in the courtroom. But the association maintains that a justice of the peace has the right to control courtroom operations.
Davies adds there’s no agreed-upon method for calling lawyers to address their cases. “We intervened on the basis of materials filed that do not challenge the validity of [the Barristers Act] and we took the position that it continues to apply until it is repealed or struck down,” says Davies.
“There is simply no right to be heard on a first-come, first-served basis. Different practices have emerged in different jurisdictions. In some jurisdictions, it is done on a first-come, first-served basis, but in others it is not.”
But Lippa says the practice diminishes the view of paralegals as being part of a profession before the courts. “It’s not typically invoked in all the courts, but there are 10 of them that do,” says Lippa, who has been working as a paralegal for 20 years.
Although Lippa says an increase in this practice has cost her time and money, she’s not seeking damages. Instead, she’s pursuing the issue via the certiorari application in hopes of having the process changed.
Lippa’s complaint stems from an encounter with a justice of the peace in a Newmarket, Ont., courtroom in 2010.
Lippa was with two paralegals and four or five lawyers sitting in the area past the bar in Courtroom 205. The body of the courtroom was full. “Justice of the peace (G.M.K.) Forrest essentially addressed me as a paralegal and stated that in the future I was to sit in the body of the court and that counsel had precedence over paralegals,” wrote Lippa in her affidavit.
“Specifically, the justice stated that court tradition required that paralegals, as they were not called to the bar, were not permitted to sit past the bar and speak to matters prior to counsel. I was offended as a paralegal and licensee of the law society by being addressed in this way by the justice of the peace since for many years myself as well as countless other agents had appeared in this way before the Ontario Court of Justice.”
Sitting past the bar was never much of an issue until recently. Now, Lippa says she has to wait up to three hours for a brief appearance for something as simple as setting a date. As a result, the practice limits the number of appearances she can make, the number of courthouses she can travel to, and, ultimately, her bottom line.
Cheryl Sereny, senior vice president of the Paralegal Society of Ontario, says the goal is for the two professions to work together in a harmonious environment. But she likens the treatment of paralegals in some courts to that of civil rights crusader Rosa Parks.
“We were told we could ride the bus, but no one told us we had to ride at the back of the bus,” she says.