Law Times

Page 4 April 29, 2013 Law Times • NEWS Changes challenge culture of mutual animosity Continued from page 1 risky for the refugee claimants. It basically means they're being represented by someone who is not going to be able to assert their procedural rights or even many of the legal concepts." Asked if any training could equip paralegals to practise immigration law, Boulakia replies: "Yeah, that would be law school." Lawyers, he adds, "don't just take a refresher course and go out and represent people." The federal government's green light for paralegals to handle immigration matters deserves some scrutiny, Boulakia continues, noting authorities don't necessarily want refugees to succeed in their applications. The Ontario Bar Association's citizenship and immigration law section also has concerns. Immigration clients are a vulnerable group who deserve stringent protection, says Lainie Appleby, chairwoman of the OBA group. "Immigration and refugee law is deceivingly complex," she said last week. "There is sometimes a false impression that it is a pro forma process when, in fact, a high degree of expertise and careful judgment is required to complete the paperwork in the best interests of clients. For example, preparing immigration applications requires analytical and forwardlooking strategic thinking as is acquired in law school." When it comes to ensuring the quality of practice, "the law society should not be a less stringent option to the federal regulator," she added. "We are confident that the law society may eventually catch up, but the focus must be on putting the current house in order rather than expansion." The new motion references the 2012 report by David Morris that raised the idea of training paralegals to work in areas of the law that now fall outside their scope of practice. But according to the Family Lawyers Association, such a move would do little to advance the cause of access to justice. "There is no reason to believe that paralegals will charge a whole lot less than lawyers," says Starr, who argues the real solution is to increase legal aid funding. The motion calls on the law society to create a committee within 30 days. While Starr calls the time frame unrealistic, John Tzanis, president of the Paralegal Society of Ontario, says it shows the urgency of the matter. Questions related to paralegals languished on the backburner last year when the articling debate took the spotlight, he says. "This has to move a little quicker, it has be a priority," he says. In addition to the law society, the Paralegal Society of Ontario will also be talking to Legal Aid Ontario about the possibility of giving certificates to paralegals for immigration matters, says Tzanis. "If you take a look at the budget crunches that are occurring within legal aid, this is, I think, a very, very good solution." Allowing paralegals to practise more broadly will also create opportunities for graduates facing limited job opportunities, Tzanis adds. "We have 700 to 800 students graduating every single year and where are we going to provide areas of practice for these people? Are they just going to be coming out and competing with paralegals that are already struggling?" The debate arises as paralegals can now rub shoulders with lawyers at two more Ontario law associations. The Halton County Law Association and the Waterloo Law Association both amended their bylaws recently to allow paralegals to become members and join the board of directors. Halton association president Laura Oliver says the move makes sense as paralegals are now subject to law society regulation. But their inclusion, she adds, is also about creating a more harmonious relationship between lawyers and paralegals. "I think there should be some amount of collegiality between the two professions," she says. "We are regulated by the same body and we are two different professions, but that doesn't mean that we have to be in competition with one another." Not all lawyers have been keen on sharing their law association with paralegals, notes Oliver, who calls the issue a controversial one. "Suffice it to say, I've seen some debates that have been quite offensive," she says. "There appears to be some perception about ethics that I don't necessarily think is restricted to paralegals," she adds. Some of the tension between lawyers and paralegals stems from the adversarial relationship that's been building up between the two professions, says Tzanis. He calls the law associations' moves the first step in breaking down a culture of mutual animosity. "For years since we've been licensed, it's almost like we've been adversaries," he says. "There's been suspicion and there's been acrimony with respect to the two professions whether or not they're in competition with each other, whether they're colleagues or not." Part of the problem is also "a matter of respect," he adds. From where they can put their coats and stretch their legs to how the courts treat them, paralegals feel slighted by a culture of privilege that constantly puts them beneath lawyers, he says. "I think what happens is lawyers feel there is a certain privilege in being a lawyer that paralegals don't have and that's something that I think irks paralegals, bothers paralegals," says Tzanis. Paralegals' inclusion in law associations is the first step to breaking down some of the relationship issues that exist between the two professions, he adds. Both the Halton and Waterloo associations will each reserve one seat on the board of directors for a paralegal. Ottawa's County of Carleton Law Association has already given paralegals full membership rights. So far, only a handful of paralegals are members of the Waterloo association, says president Clarke Melville. Lawyers in the region "have embraced" paralegals' inclusion, he notes. Paralegals have full membership rights, he says, adding that creating different privileges for the two professions is "a ridiculous, complicated, and unnecessary exercise." LT Claim about good driving habits rejected Continued from page 1 start' principle," the judge said, adding that although Clarke listed the province as creditor when she filed for bankruptcy, the government "took no steps to file a proof of claim." The minister of finance also argued that making sure Ontarians pay their judgment debt encourages good driving habits, an argument Goldstein found entirely flawed. "I do not see any evidence of rational connection between paying a judgment debt and good driving habits," he wrote. He added: "Every judgment debtor still has the opportunity to obtain their licence as long as they pay something. This discretion undoubtedly exists so that people of modest means will not be unduly penalized, but it means that even the most irresponsible drivers also have an opportunity to regain their licence — not by taking a driving test or driver education, but by paying a judgment debt." Richard Howell, a certified specialist in bankruptcy and insolvency law at Clark Farb Fiksel LLP, calls the province's argument about promoting good driving habits "absolute nonsense." "It's not regulatory, it's collections," he says. "It's just a way to gouge money out of the bankrupt and circumvent the operations of the bankruptcy act." Mark Taggart, who intervened on the behalf of the Superintendent of Bankruptcy in the case, says discussion on the issue is coming late to Canada. Ontario's decades-old licensing scheme came into effect before mandatory car insurance, says Taggart. At the time, a policy that said debtors must pay the province regardless of their bankruptcy status made sense given the need to persuade people to purchase car insurance, adds Taggart. Now that there's a mandatory car insurance regime in place, the legislation dating back to 1930 is outdated, he notes. "In the United States in 1971, they said, 'Enough is enough. We don't need this anymore.' But in Canada, it seems like no one took notice of it." When it comes to this issue, the U.S. bankruptcy code is much clearer, says Michael Nowina, a bankruptcy lawyer at Baker & McKenzie LLP. The American legislation makes it clear that a government unit "cannot revoke or refuse to renew a licence solely because a debtor has not paid a debt that was discharged by an insolvency filing," he says. "We simply do not have that clear legislative direction in Canada. There are now conflicting Ontario decisions, so hopefully appellate level guidance will come soon." When reached by Law Times, Susie Heath, spokeswoman for the minister of finance, said she couldn't comment. "Unfortunately, there isn't much that the ministry is able to say at this time as the matter is still before the courts," said Heath. In Moore, a bankrupt was facing more than $88,000 in Highway 407 toll payments. The Ontario Court of Appeal will hear the case in June after a judge rejected the applicant's argument that there was an operational conflict between the Highway 407 Act and the bankruptcy legislation. According to Taggart, more than 13,000 bankruptcy and proposal filings www.lawtimesnews.com in the superintendent of bankruptcy's records between 2007 and 2011 listed "407" or "407 ETR" as a creditor. The estimated monetary value related to these filings is more than $30 million, he says. "The act of denying vehicle and licence renewals unless repayment of toll arrears has occurred does not respect the operation of the discharge provisions of the Bankruptcy and Insolvency Act," says Taggart in describing the Office of the Superintendent of Bankruptcy's position. Goldstein's decision is in line with this position. "In my view, if the minister's argument is accepted, it would amount to creating a carve-out for provincial regulatory or licensing schemes to permit debt enforcement after discharge," the judge said. "Regulatory bodies cannot claim a 'carve-out' from bankruptcy legislation in order to carry out their duties," he added. "No such carve-out exists except where Parliament specifically creates one." Since the decision applies specifically to judgment debtors, it can't translate into bankrupts being exempt from other penalties such as parking tickets, says Howell. But for Nowina, there's a potential for such a scenario. "The decision cries out to an appellate review," he says. "Given that there were interveners in this case, I'd be surprised if they don't take it to the next level. Most bankruptcy cases don't end up having interveners from the superintendent of bankruptcy. The superintendent deciding to intervene is a significant factor." LT

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