Law Times

October 1, 2018

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Page 2 OctOber 1, 2018 • Law times students and paralegals. That's not something the law soci- ety has been asked to consider nor has it considered it. If that is something [that] ought to be considered, the law society is the right place, the best place, to determine scope of practice. It would be perfectly appropriate to propose. . . . [I]t hasn't hap- pened," Mercer says. He says the law society agreed to take on the regulation of para- legals more than a decade ago and has worked hard — with success — on the scope, educa- tion, conduct and insurance re- quirements of paralegals. "It would be inadvisable in my view for all of that to be abandoned in the criminal law context and have the govern- ment of Ontario take over the regulation of the scope of prac- tice of paralegals in that con- text," Mercer says. LT get proper mentorship," says Rhodes, who works in associa- tion with Paradigm Law Group. "I don't think the repercussions have been thought through." The law society's brief recom- mendation to the government doesn't necessarily distinguish between regulated agents, who may receive different types of training. Licensing candidates, for example, must complete at least the equivalent of two years of coursework in an approved Canadian Common Law Pro- gram, two-thirds of which must have been in-person study, ac- cording to the Federation of Law Societies of Canada National Committee on Accreditation. Paralegals require at least 710 hours of classroom instruction on core subjects, according to the LSO website. "I always have concerns with paralegals representing vulner- able populations because they don't have the same supervision. For a person who doesn't have a knowledge, they may not under- stand the difference between a paralegal and a lawyer," she says. Rebecca Bromwich, who teaches law at Carleton Universi- ty, says the LSO's position also in- dicates that the profession many have been cavalier about deciding which issues should be suitable for articling students or paralegals and whether the requirements should be different for each of the two professional groups. "With this reform, the liberty that's at stake for the accused is pretty significant. It begs a really foundational question: What's the difference between lawyers and paralegals and articling stu- dents? Why are lawyers better?" Bromwich says. The law society's submis- sions say that Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts "increases the default maximum penalty for sum- mary conviction offences from 6 months to two years less a day of imprisonment." This increase in the maximum penalty from summary con- viction means that the accused cannot use so-called regulated agents, such as paralegals, lawyer licensing candidates and law stu- dents, to represent them in court on "routine aspects" of these mat- ters, the law society's brief said. Instead, the law society's recom- mendation said that the govern- ment should maintain the status quo and should be a separate category of summary conviction offences with maximum penal- ties of six months. Otherwise, the law society says, vulnerable popu- lations may be most affected and lose a "relatively affordable" op- tion for representation. Another solution could be to permit regulated agents to appear on summary conviction matters through an order-in-council. But, Mercer says, this route would put the regulatory aspect in the hands of the provincial government rather than the LSO. Such an op- tion could "cede a vital part of the Law Society's regulatory author- ity," the law society's brief said, adding that the matter would be "more appropriately managed within the regulatory mandate and expertise of the Law Society." "The issue is simply not be- fore the parliamentary commit- tee whether or not there should be separate scopes of practice for priate to recognize that serious interest" by granting intervener status to an affected party, says Butt. The plaintiff, who had been employed by the defendant, ThyssenKrupp Elevator, for more than 30 years, had his em- ployment terminated for cause in March 2014 as a consequence, according to the defendant, of the plaintiff 's actions toward a female co-worker (Vieira). Spe- cifically, he was found to have slapped her buttock during the month prior and "placed his face in the area of [her] breasts and pretended to nuzzle into them." Following the incidents, Vie- ira filed a complaint against the plaintiff, who was then her co- worker, the company conducted an investigation and determined that the plaintiff 's conduct war- ranted dismissal. None of the allegations have been proven in court. "ThyssenKrupp is com- mitted to maintaining a ha- rassment-free workplace," says ThyssenKrupp's counsel, Alex Sinclair of Johnstone & Cowling LLP in Toronto, adding that the company was gratified by the court's decision and its support of one of its employees, Vieira. "Obviously, the defendant believes Ms. Vieira's account of the incident," Sinclair says, "and acted accordingly [by terminat- ing the plaintiff ], but clearly Ms. Vieira took the position that the plaintiff would be chal- lenging her credibility" and that the court proceedings stood to "have an impact on her reputa- tion." Vieira had expressed "con- cern about how the plaintiff 's position with respect to the cir- cumstances surrounding the . . . incident will affect his counsel's cross-examination of her." "Insofar as the Plaintiff is concerned, his claim implies I somehow invited and/or con- tributed to his assault and sexual harassment of me, and further implies that his conduct, while not acceptable, is not just cause for termination of employment," Vieira said in her written affida- vit. "I have serious reservations about how that position will in- form his counsel's cross-exami- nation of me as a witness." Vieira also testified: "Some- thing like this stains your repu- tation and that has been con- cerning to me over the years be- cause people will shy away from getting close to me [in the work- place]. People dislike me and don't cooperate as much with me . . . " as a result of the "very liked" plaintiff 's termination of employment. Graham decided that Vieira met the threshold criteria in rule 13.01(1) in the Rules of Civil Procedure, which defines who may intervene in a civil case, and that she legitimately claimed an interest in the subject matter of the proceeding. Her affida- vit and cross-examination evi- dence "supports her contention that her moral integrity will be in issue at trial and that, in the context of her ongoing employ- ment with ThyssenKrupp, both her moral and possibly physical integrity could be affected by the outcome of the trial," Graham wrote in his reasons. The court was very careful to structure the nature of the par- ticipation in the trial in accor- dance with the nature of the in- terests at stake of the intervener, says Butt. Graham was satisfied that Vieira's participation in the trial as intervener and her coun- sel's "limited participation in the trial" would not unduly delay it or prejudice the interests of its parties. "The court wants to do jus- tice to everyone affected but at the same time wants litigation to unfold" as effectively as possible, says Butt, who sees the ruling as part of the "incremental de- velopment of established prin- ciples" in common law. "It may be important for oth- er people who find themselves in similar situations," he says. "There's been a lot of talk so- cially regarding the importance of safe workplaces from a sexual harassment perspective; this sit- uation may speak to that social context quite favourably." Sinclair concurs. "The decision . . . may have significant precedential value, particularly in the present so- cietal context" of the #MeToo movement, he says. The case is set to go to trial on Jan. 14, says Sinclair. Counsel for the plaintiff was not immedi- ately available for comment. LT NEWS Complaint filed Continued from page 1 Continued from page 1 May create future problems Right-sized Thinking® • 1-800-323-3781 • Your Authority For: Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts One Size Does Not Fit All Some legal matters require bigger solutions than others. At Pallett Valo we provide pragmatic, forward-thinking legal counsel that fits each client's specific business challenge without compromising service or quality. Try on our Right-sized Thinking® and we'll help you hit the ground running. Untitled-1 1 2018-01-30 8:16 AM

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