Law Times

Law Times • July 8, 2013 Page 3 NEWS Two decisions consider status of paralegals versus lawyers Courts rule against sitting past bar, holding professionals to same competency level BY YAMRI TADDESE Law Times A s Ontario paralegals lost their bid to sit past the bar in courtrooms, another recent decision considered whether measurements of their competency should be subject to the same standard as lawyers. Superior Court Justice Bruce Durno considered the question after an appellant in R. v. Bilinski accused his paralegal of deficient service to the extent that the guilty verdict in his case was in doubt. Janusz Bilinski, who was facing an accusation of assault, argued that since the Law Society of Upper Canada has started regulating paralegals, "a person retaining a paralegal should now receive the same representation, as though he or she had retained a counsel," according to the ruling. Durno dismissed Bilinski's argument, emphasizing that the differences between paralegals and counsel remain. "There remains a clear distinction between the representation that an accused person is entitled to when they retain a lawyer versus when they retain a paralegal," wrote Durno. He added: "The appellant has provided no evidence that the LSUC or any other regulatory body has now assured the public that the representation level is the same. Indeed, the record supports a contrary conclusion.  The case-specific evidence on this appeal supports that conclusion. "The appellant knew he was not retaining a lawyer. He knew the agent had less legal training than a lawyer and he knew the only lawyers sit in front agent would charge less of the bar when court than a lawyer." was in session. The apThe judge also displication fails on this missed the appellant's issue." alternative argument that The application, there should be a new brought by paralestandard, "in essence a gal Marian Lippa, also middle-ground," to gauge sought a reconsideration the quality of service by of the order in which the paralegals. Bilinski argued court calls matters. Lippa such a standard would be took issue with a judicial lower than for counsel in officer's order to hear that paralegals would be matters brought by seable to make more misnior counsel before those takes than lawyers. of paralegals. "First, there is no set An arrangement that makes paralegals wait Although Fuerst said number of mistakes that until all lawyers finish their matters before such an arrangement lawyers can make before they can go ahead is neither fair nor effiisn't always appropriate, their conduct of the case cient, says John Tzanis. she didn't see a breach of reflects incompetence," natural justice or the Charter of Rights and Durno responded. "Second, to succeed on an appeal, Freedoms in the preference for that parthere still has to be a miscarriage of jus- ticular order. "The order about the manner tice established. While at some point the in which cases would be called in court did number of errors may become a factor, not impinge on Ms. Lippa's life, liberty or seany new test would have to nonetheless curity of the person. It may have impinged focus on the quality or results of the er- on her economic interest, but that is not an interest protected by s. 7," wrote Fuerst. rors and not the quantity." Fuerst's decision sets an important precDurno's June 14 decision preceded a ruling by Superior Court Justice Michelle edent, according to Nathan Baker, a lawyer Fuerst that found a justice of the peace's or- who acted as an intervener in the case on the der barring paralegals from sitting past the behalf of the York Region Law Association. "I think that the recognition of the justice bar in court doesn't constitute discriminaof the peace's power to control their own tion. Justices of the peace have jurisdiction over what they'd like to see happen in their courtroom, including seating and order of the call of the list, will be referred to for years courts, said Fuerst. "The justice of the peace did not ex- to come," he says. "Not a lot of cases deal with issues ceed her jurisdiction or breach the principles of natural justice in ordering that such as this, so even the court's obiter comments are likely to be referred to for some time to come." It's also important that the case recognized paralegals "as a separate set of legal providers," Baker says, noting that the distinction will help the public understand the difference between the two licensees and the services they provide. But according to John Tzanis, president of the Paralegal Society of Ontario, an arrangement that makes paralegals wait until all lawyers finish their matters before they can go ahead is neither fair nor efficient. "A lot of paralegals are charging much less than lawyers are. Having to wait all day to complete a five-minute matter and being paid 80 bucks or 100 bucks or something nominal to wait all day long while lawyers who are making $400, $500 an hour . . . are getting heard right away and can get back to their offices and make more money," he says. "Our entire day is blown in one minor matter," adds Tzanis, who says the paralegal society is "disappointed" with the outcome of the Lippa application. According to Tzanis, an order of call that makes paralegals wait until lawyers finish their matters is akin to telling poor litigants to wait until the court has addressed their rich counterparts. "In the eyes of the client, how does this appear to them? That's what we're talking about here," he says. Tzanis says he hopes the law society and the Ministry of the Attorney General will work to smooth out these issues. But if it appears change will come no other way, he suggests Lippa will likely appeal the decision. LT Part-time, Executive LLM program for corporate counsel and practising lawyers Information T Faculty of Taught by U of Session Wednesday, December together with top Law professors, 7, 2011 5:30 - 7:00 pm Friday, December 9, 2011 8:00 - 9:30 am international faculty from U of T School of Management MIT-Sloan Faculty of Law, Faculty Lounge 78 Queen's Park, Toronto and Please feel free to drop in anytime during these hours. expert practitioners. No registration required. EVENT: For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. GLLM_LT_July8_13.indd 1 www.lawtimesnews.com 13-07-03 10:51 AM

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