Can a paralegal represent a party in an arbitration pursuant to the Arbitration Act?
While it appears the answer to this question is yes and paralegals can represent parties where more than $25,000 is at stake, there is no concrete answer.
There are strong policy arguments in favour of paralegal representation in arbitrations and, given the uncertainty, the Law Society of Upper Canada should update its bylaws to confirm that paralegals can appear at arbitrations pursuant to the Arbitration Act.
More and more often, clients are asking for alternatives to litigation and they are turning to options such as arbitration. Recent growth in the demand for arbitration has in turn caused it to emerge as an attractive practice area for paralegals.
As I am not aware of any case law in Ontario that directly answers the question about paralegal representation in such matters, it is a matter of statutory interpretation. Subsection 6(2) of Bylaw 4 of the Law Society Act outlines the scope of activities a paralegal may engage in. This includes representing a party before “a tribunal established under an act of the legislature of Ontario.”
According to the paralegal rules of conduct, the definition of “tribunal” includes “arbitrators.”
Subsection 1(1) of the Law Society Act defines an “adjudicative body” to include “a tribunal established under an act of Parliament or under an act of the legislature of Ontario” as well as “an arbitrator.” Although there appears to be a distinction in this subsection, one or more arbitrators form an arbitral tribunal. The question becomes whether or not an act of the Ontario legislature established that arbitral tribunal.
The Arbitration Act is an act of the legislature that deals with arbitral tribunals and includes issues such as their composition, jurisdiction, and conduct as well as awards, enforcement, and appeals of their decisions.
An arbitral tribunal exercises statutory powers in decision-making. For example, pursuant to subsection 17(1) of the Arbitration Act, an “arbitral tribunal may rule on its own jurisdiction.” As a further example, s. 31 of the Arbitration Act states that an “arbitral tribunal shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions, and other equitable remedies.”
Since the Arbitration Act is an act of the legislature that addresses fundamental issues and an arbitral tribunal exercises statutory powers in decision-making, it appears such a body meets the definition in Bylaw 4 of “a tribunal established under an act of the legislature of Ontario.”
In light of all of that, it appears paralegals can represent clients in arbitrations.
One argument against paralegals being able to act in arbitrations relates to the notion of consensual versus compulsory arbitration. Arbitrations pursuant to the Arbitration Act are consensual based on an arbitration agreement. Compare this with arbitrations at the Financial Services Commission of Ontario, which are not consensual and before which Bylaw 4 is clear a paralegal can appear. This argument may rely, however, on a historic viewpoint predating the Arbitration Act. Prior to the Arbitration Act, it appears parties in Ontario were at will to form any arbitration agreement they wanted to subject to the common law.
Another argument suggests the Arbitration Act regulates arbitral tribunals as opposed to establishing them. As outlined above, the Arbitration Act addresses fundamental issues and an arbitral tribunal exercises statutory powers in decision-making.
Furthermore, it is interesting to look at the Statutory Powers Procedure Act, which at subsection 3(1) explains that it applies, among other things, “to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an act of the legislature.”
The Statutory Powers Procedure Act would capture arbitrations pursuant to the Arbitration Act if it weren’t for subsection 3(2) that says it does not apply to arbitrations pursuant to the Arbitration Act.
When it comes to the question of whether paralegals can represent a client in an arbitration where the claim is for more than $25,000, it is worth looking at the rules in areas where we know they can act already.
Paralegals can represent clients before tribunals without a monetary limit. For example, the Human Rights Tribunal of Ontario has no such limit. When it comes to the Small Claims Court, the limit is specific to the Small Claims Court pursuant to the Courts of Justice Act. At the Landlord and Tenant Board, the $25,000 limit relates to the Small Claims Court limit pursuant to various sections of the Residential Tenancies Act. There is no monetary limit in the Arbitration Act.
As a $25,000 limit is specific to the Small Claims Court and the Landlord and Tenant Board due to legislation and regulations and there is no monetary limit in the Arbitration Act, it appears paralegals can represent clients in arbitrations where more than $25,000 is at stake.
There are many strong policy arguments as to why paralegals should be able to represent clients before arbitral tribunals. Paralegals and arbitration are extremely important in terms of access to justice.
In terms of protecting the public interest, paralegals already represent clients in court and before a large number of different tribunals. The law society regulates paralegals who owe duties to their clients and tribunals.
One of a paralegal’s duties to clients in the paralegal rules of conduct is competence. Paralegals who take on arbitration cases must ensure they are competent. Familiarity with the applicable arbitration rules and the Arbitration Act is important.
With exceptions, arbitration is usually a voluntary forum for dispute resolution. Arbitrating parties should therefore also be able to decide whether to represent themselves or have a paralegal or lawyer represent them subject to any clauses in the arbitration rules.
As the law is now, it appears paralegals can represent clients in arbitrations and there is no monetary limit restricting a paralegal’s representation.
But with conflicting views on the issue, the law society should consider clarifying paralegal rights of representation in arbitration proceedings. More specifically, it should clearly delineate in s. 6 of Bylaw 4 that paralegals can represent clients before arbitral tribunals to which the Arbitration Act applies. Such a change represents a wonderful and exciting opportunity to facilitate alternative dispute resolution across Ontario.
Michael Hassell is a Toronto trial lawyer and arbitrator.