Some paralegals allege that the LSO denies access to justice for low income people
In a motion that Treasurer Teresa Donnelly declined to include in the May 11 Law Society of Ontario annual general meeting, a group of paralegals asked the Ontario government to take over the regulation of lawyers and paralegals in Ontario because the LSO is not meeting its statutory duties.
After the LSO removed the Family Legal Service Provider (FLSP) license report from its Feb. 24 convocation agenda, some paralegals have alleged that the LSO denies access to justice for financially vulnerable Ontarians seeking legal services by deferring the expansion of their practice areas. These paralegals allege that the LSO acts in the interests of its lawyer majority and not the public interest.
The FLSP license proposal will allow paralegals to represent separating couples in several ways, including negotiating and drafting contracts and acting for them in court.
Law Times previously reported that the LSO benchers scheduled to vote on the FLSP license in Convocation on Feb. 24, which would allow paralegals to provide some family law services. However, several law associations opposed the proposal saying the LSO departed from its fundamental purpose as the profession’s regulator.
Subsequently, the LSO senior communications advisor, Jennifer Wing, informed Law Times a few days before Convocation that since publicly releasing the Access to Justice Committee’s report on a Family Legal Services Provider Licence on Jan. 21, the LSO received input from various stakeholders across the justice sector which required further consideration. As a result, the report was not on the Feb. 24 agenda.
The paralegals’ motion identified law societies in Australia, England and Wales that lost the right to self-regulate because they did not follow government mandates and suggested a similar action for the LSO unless it steps up and facilitates access to justice.
In her reasons for declining the motion, Donnelly wrote that The Law Society Act requires that benchers, not members, govern the affairs of the law society. Therefore, putting such a motion to a members’ meeting usurps the authority of Convocation, evading the law society’s statutory provisions for governance, and ignores the fiduciary duties of benchers in Convocation.
“The motion asks Law Society members – its licensees - to pass a resolution forcing the Law Society to effectively dissolve itself and have the Attorney General take control of governance of the legal professions.”
Wing also informed Law Times that the motion is improper because it contradicts provisions in the bylaws. She says the LSO continues to consider how paralegals can provide certain family law services and is engaging with justice sector partners to determine how best to move forward in a realistic and achievable way.
“This is a complex issue involving the regulatory obligation to protect the public balanced with the need for more flexible legal services options in support of family law client needs.”
Marshall Yarmus, the former vice-president of the Paralegal Society of Ontario and Canada, says paralegals are disappointed that, after spending four years planning to allow paralegals to deliver some family law services, the LSO removed the report from the Feb convocation agenda without providing a date for when it brought back.
Yarmus says the law society and the Attorney General of Ontario co-commissioned justice on Justice Annemarie Bonkalo’s report, which confirmed that 57 percent of family court litigants are self-represented because they cannot afford a lawyer or continue to pay a lawyer.
He says the public has requested paralegals be allowed to provide family court services, and the law society is not fulfilling its duties under s. 4.2 of the Law Society Act.
The LSO ought to facilitate affordable and reliable access to justice that people need, and the current law society has failed, he says. “There is a lack of access to justice in family courts, and paralegals are a more affordable option.”
Some family lawyers and law associations have opposed the FLSP license citing that the LSO was focusing on the commercial viability of the paralegal businesses as a more important factor than the educational requirements and competence to do family law work. However, Yarmus says a trained paralegal is much better at representing a client than a self-represented litigant trying to navigate the court process without any guidance, which cloggs up the legal system.
“We want the family law plan to be put back on the convocation schedule immediately and to be passed.”
Paralegals would also like to provide complete immigration services to clients, which the federal legislation approved in 2011 but is still restricted because the LSO never changed their bylaws, Yarmus says.
“We plan to raise these issues at the annual general meeting of the law society even though they have not accepted our motion. We will be raising the motion from the floor,” he says. “And we’re going to be lobbying whoever is the next attorney general to hand over-regulation of the legal professions to the Ontario government.”
Lisa Trabucco, assistant professor at the University of Windsor, says it is crucial for the LSO to properly study the FLSP license proposal and not make a rash decision because it is complex with many perspectives to consider. “Family lawyers say one thing, and paralegals say other things, and the right answer is not simple. It’s not as simple as saying it must be A, not B.”
Paralegals have a defined scope of practice, and Trabucco says family lawyers view they are encroaching on their territory.
With the studies and reports released by the LSO, Trabucco hopes that Convocation will make a well-thought-out decision. She says paralegal regulation started in the mid-80s and was not implemented until 2007, so unfortunately, things take time.
“There’s a lot of input that they’ve gathered. At some point, the time comes to vote on it, and it passes, or it doesn’t.”