Appendix: Canadian Regulatory Frameworks: Jurisdiction by Jurisdiction
Ontario recognizes and licenses two types of legal professionals: lawyers and paralegals. Given the status of paralegals, Ontario’s approach is not as lawyer-centric as most other Canadian jurisdictions,358 yet it is still lawyer-oriented in the sense that lawyers retain a significant area of generally restricted practice from which even paralegals are excluded. As in all other Canadian jurisdictions, Ontario’s regulatory framework provides exemptions from the restrictions for various people who are neither lawyers nor paralegals.
In relation to lawyers and paralegals, the Ontario approach employs a distinction between the practice of law (which is restricted to lawyers) and the provision of legal services (which is selectively allowed for paralegals). What activities constitute the “practice of law” are not expressly defined in the Law Society Act or the by-laws of the Law Society of Ontario (LSO) – reference is simply made to practising law as a “barrister and solicitor”,359 which results in a circular definition that rests on an implicit understanding of the activities that lawyers typically and traditionally engage in.
In contrast, the provision of legal services is expressly defined as engaging in conduct “that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person”.360 By way of further guidance, doing any of the following is expressly deemed to be providing legal services: giving a person advice with respect to their legal interests, rights or responsibilities (or those of another person); selecting, drafting, completing or revising, on behalf of a person, a document that affects their legal interests, rights or responsibilities, and any document for use in an adjudicative proceeding; representing a person before an adjudicative body; and negotiating the legal interests, rights or responsibilities of a person.361 As such, and as compared to comparable lists in other Canadian jurisdictions, the definition of activities is stated at quite a general level, but is capable of capturing a very broad range of more specific activities – which are thereby deemed to involve the provision of legal services. Although what constitutes the “practice of law” is left undefined, it presumably encompasses at least all of that range. It should be noted though that it is generally accepted, in Ontario and across Canada, that the provision of only legal information does not constitute an activity falling into the categories of the practice of law or the provision of legal services.
While the provision of legal services is the reference point for the authorized activities of paralegals, they are only entitled to undertake a selected range of the activities that would involve provision of legal services. Specifically, in defining the conditions of the only type of paralegal licence (Class P1), the LSO has imposed three inter-related restrictions (based on the scope of practice of independent paralegals prior to the introduction of licensing). First, paralegals are only authorized to provide advice, document preparation and negotiation activities that relate to adjudicative proceedings362 – thus, excluding the provision of those types of legal services when they relate to what has been called “transactional” law (e.g. preparation of contractual documents relating to commerce or employment, preparation of personal or corporate business documents, and preparation of wills). Second, paralegal licensees are only authorized to represent people before a limited number of specified adjudicative bodies.363 Third, that limited number of specific adjudicative bodies is the reference point for limiting the range of adjudicative proceedings in relation to which they can provide their legal services.
The foundation of the Ontario regulatory framework is thus that only licensed legal professionals (lawyers and paralegals) can practise law or provide legal services. However, the regulatory framework also includes a range of explicit exceptions that allow various types of “non-licensees” to engage in activities that would otherwise be treated as unauthorized practice of law or unauthorized provision of legal services. The exceptions are set out in four bundles, as follows, with somewhat different ambits.
- The first bundle is specified in the Law Society Act and deems various people not to be practising law or providing legal services: a person acting on their own behalf; a person acting in the normal course of carrying on a statutorily regulated non-legal profession or occupation; an employee or officer of a corporation performing “in-house” activities; an employee or volunteer representative of a trade union acting for the union or a union member in relation to a labour matter.364
- The second bundle is specified in the Law Society By-Laws and also deems various people not to be practising law or providing legal services: a person acting as a court worker as part of the Aboriginal Courtwork Program; a person acting in the normal course of carrying on a non-legal profession or occupation, regardless of whether statutorily regulated, but excluding representation in adjudicative proceedings, except in relation to a committee of adjustment proceeding.365
- The third bundle is also specified in the Law Society By-Laws and authorizes various people to provide only the legal services that can be provided under a paralegal (P1) licence: an employee providing “in-house” services; an employee of a Legal Aid Ontario funded legal clinic; an employee of a government-funded not-for-profit legal services organization; a friend, neighbour or relative (whose profession or occupation is non-legal), acting on a no-fee basis and, for friends and neighbours, only up to three times per year; an MPP or their designated staff; a certified human resources professional; a public servant employed in the Office of the Worker Adviser or Office of the Employer Adviser or a volunteer with an injured workers’ group, with scope limited (for all) to workplace safety and insurance; a trade union representative or designate, for workplace issues or disputes only; a student-at-law, under supervision.366
- The fourth bundle is specified under the LSO By-Laws as well and authorizes the performance of tasks and functions by a Canadian or Ontario law student, an Ontario paralegal student, or other people who are employees of licensees, when connected to the practice of law or the provision of legal services of a licensee who employs or directly supervises the person in the following particular contexts: a licensee’s professional business; a licensee firm; the Governments of Canada or Ontario; a municipal government; a First Nation, Métis or Inuit government; a Legal Aid Ontario funded legal clinic; Legal Aid Ontario; a Pro Bono Students Canada program; an in-house legal department; a student legal aid services society; and, a clinical education course or program.367
In anticipation of contrasting the Ontario approach with the approaches in some other provinces, it should be noted that Ontario does not provide any exemption for no-fee activity by non-lawyers and non-paralegals.
An avenue for community justice help, to the extent it can be characterized as involving the provision of legal services, exists in the exemptions for people who are acting in the normal course of activity of a non-legal profession, or occupation, and this is considered in Section 4 of this report. There is also a specific legal assistance service for Francophone women in Ontario operated in collaboration with the umbrella organization Action ontarienne contre la violence faite aux femmes. Non-lawyers are integrated into this service as “legal support workers” and program activity of this type is considered in Section 6. In addition, as discussed in Section 4, the Ontario courts have confirmed their power to allow McKenzie Friends, at least in family law matters.
In recent years, the LSO has also introduced various adjustments to the regulatory framework in an effort to increase the ability of licensees to contribute to access to justice. These adjustments have been briefly reviewed in Section 4 of this report and so will be only briefly repeated here. The introduction of paralegal licensing was partly justified on the basis that their regularization would contribute to access to justice. The other main adjustments have been, first, an authorization for limited retainers, otherwise known as “unbundling” of legal services, which was introduced in an effort to enable clients to engage lawyers for only certain aspects of a legal matter, thus reducing overall costs for clients who were capable of handling the other aspects of their matter.368
The Ontario Family Bar recently launched a program to support the provision of unbundled service, offering training to family law lawyers relating to this type of service provision, and making dedicated efforts to spread the word about the availability of these services to the broader public.369 Second, the LSO has introduced a modified conflict standard for lawyers offering pro bono services in specified pro bono contexts.370 Third, the LSO has incrementally expanded the allowances for law and paralegal students to perform tasks associated with the practice of law and the provision of legal services.371 Fourth, as an initial, limited and targeted form of Alternative Business Structure (ABS) for the delivery of legal services, the LSO has implemented a regime to enable not-for-profit civil society organizations (CSOs) to employ licensees to provide legal services directly to the clients whom those CSOs typically serve.372 Finally, following the Bonkalo Review,373 a potentially significant regulatory change is currently under consideration – an expansion to include specified tasks in family law matters in the scope of authorized activities permitted to be undertaken by paralegals.374
Alberta appears to follow the traditional lawyer-exclusivity approach, but with the important real-world difference that it has a significant number of practising independent paralegals – that is, non-lawyers providing legal services, for a fee, who are not employed by, in business with, or supervised by lawyers, nor regulated by the Law Society of Alberta, or any other body. The basis upon which this independent paralegal sector operates, and the scope of its operations, are not entirely clear. To a certain extent, it appears to be based upon a collection of express statutory authorizations for people to be represented by an “agent” (who is typically a non-lawyer) in relation to certain types of proceedings within provincial jurisdiction.
But the scope of services offered by at least some segments of the independent paralegals sector in Alberta appears to go beyond those express authorizations of agency. Yet this scope is well known to and, indeed, encouraged by, the Law Society of Alberta, at least in relation to matters that are low in complexity and risk.375 This suggests an apparent regulatory understanding that non-lawyers are not prohibited from providing legal services for matters that are low in complexity and risk. In turn, this regulatory understanding appears to be based on an idea that “practising law” (which only lawyers may do) can be distinguished from merely “providing legal services” (which non-lawyers may do) at the point where the provision of legal services begins to involve a level of complexity and risk that should only be handled by a lawyer who is appropriately trained and experienced – in legal analysis, drafting, and representation – and who is subject to ethical rules and has liability insurance.
The starting point under the Legal Profession Act (LPA) is that only active members of the Law Society of Alberta may practise as a barrister or solicitor, act as a barrister or solicitor in any court, act on behalf of a person to “commence, carry on or defend” any court action, or settle a tort claim (or negotiate the settlement of a tort claim).376 These restrictions are set out in a provision headed “Practice of Law”, yet no part of the provision, or the LPA, provides a definition of “practice of law”. Nor does the LPA at any point use the term “lawyer”.
Under another provision of the LPA, headed “Misrepresentation of Professional Status”, no person other than an active member of the Law Society may hold themselves out to be an active member or to be “a person lawfully entitled to practise law or to carry on the practice or profession of a barrister or solicitor”.377
The legislative framework in Alberta thus establishes a foundational monopoly over the practice of law – which appears to be equated to practising as a barrister or solicitor. At the same time, the LPA provides a number of exceptions that include some “non-lawyers”. Subject to some conditions, exceptions exist for: students-at-law, university law students, licensed legal professionals from other Canadian jurisdictions and from foreign jurisdictions, notaries, officers or employees of corporations, partnerships or unincorporated bodies preparing in-house documents, self-representing people, public officers, licensed insurance adjusters, and persons authorized by statute to appear as agents before a justice of the peace, the Provincial Court, or a provincial judge.378
Our review of Alberta’s rules indicates that there does not appear to be any exceptions that authorize the provision of law-related assistance in the nature of community justice help (to the extent that it can be characterized as the provision of legal services). But a relatively recent regulatory initiative may offer a step in that direction. In mid-2019, amendments to regulatory rules allowed the Law Society of Alberta to establish a program for registration of Approved Legal Services Providers (ALSP).379 By virtue of this initiative, as set out in the official guide to it,380 the Law Society seeks to recognize:
… the key role of pro bono organizations in the delivery of legal services to the public in Alberta …[and] … to address the increasing demand for accessible legal services for underserved individuals and organizations across Alberta by encouraging pro bono initiatives in Alberta.381
The basic criteria for eligibility for approval to operate under the ALSP program are as follows:
In order to operate, an Approved Legal Services Provider must be an entity, organization or program, excluding for-profit endeavours, delivering or facilitating the delivery of pro bono legal services to the public in Alberta. Pro bono legal services are services delivered for the public good. The public good is achieved in a variety of ways, including making legal services accessible to those who might otherwise not have access to such services.382
In terms of potentially enabling community justice help, the crucial thing to note about this program is that it does not restrict ALSPs to only using lawyers to provide pro bono legal services. While it does appear that there needs to be a designated “responsible lawyer” within the organization, other non-lawyer employees and volunteers of the organization are permitted to participate in the delivery of pro bono legal services. Depending upon the internal structure of an ALSP, the day-to-day activity of providing pro bono legal services may involve greater or lesser degrees of community justice help in the form of community workers providing frontline assistance with law-related problems. Having said that, it appears that most of the organizations that have been registered as ALSPs to date use lawyer-centric service delivery models.383 Ultimately then, the Alberta scheme may end up operating very similarly to the allowance for CSO-ABS in Ontario.
British Columbia uses a modified lawyer-centric approach that includes a for-fee service focus and therefore a no-fee service exemption. British Columbia generally prohibits any person other than a practising lawyer from engaging in the practice of law, but also exempts various people from that prohibition, including an exemption for non-lawyers to engage in “practice of law” activities when they do so “not for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the acts are performed”.384 The “practice of law” is expressly defined by reference to a list of activities that, in effect, appears to be as broad as the all-encompassing list that defines “provision of legal services” in Ontario.
The exempted people, other than non-lawyers acting on a no-fee basis, are: a person acting on their own behalf; a person authorized under the Court Agent Act385; an articled student; an individual or articled student employed by the Legal Services Society and supervised by a lawyer; lawyers from other Canadian jurisdictions or foreign lawyers holding an applicable permit; and, if permitted, non-practising lawyers.386 In addition, the Legal Profession Act also exempts public officers, notaries, and insurance adjusters.387 Agreements under prepaid legal services plans and other liability insurance programs are also protected.388 In relation to the general issue of access to justice, it should be noted that notaries in British Columbia have a broader scope of lawful practice than in other Canadian jurisdictions.389
The permission for non-lawyers acting on a no-fee basis might have formed part of the basis for the establishment of the BC Advocates Program that has seen the placement of trained advocates providing law-related assistance in community organizations across the province; the advocates are supervised by lawyers on contract.
The Law Society of British Columbia (LSBC) recognizes and allows delivery of legal services by lawyer-supervised paralegals, who are referred to as “designated paralegals”. The scope of activities that these supervised paralegals are permitted to engage in is wider in BC than in other Canadian jurisdictions.390 More recently, the LSBC explored the possibility of whether supervised paralegals ought to be permitted to appear in court by staging a pilot project in family law matters in selected registries of the provincial and superior courts. While such appearances are allowed with approval of the presiding judge, the uniform policy in the courts has been to refuse permission. The aim of the pilot project was to assess whether that policy should be eased, but the pilot was discontinued when it became clear that too few supervised paralegals were seeking to participate.
The LSBC has also given some attention to the issue of whether to allow and license independent paralegals to provide legal services. With the encouragement of the LSBC, the BC legislature enacted legislation to permit licensing of independent paralegals. However, the membership of the LSBC passed a resolution to block implementation. Currently, according to the LSBC, the issue is being examined by the Licensed Paralegal Task Force, which is due to report soon.391
Very recently, the LSBC has announced a new “Innovation Sandbox” initiative that may enable exploration of community justice help services. In the words of the LSBC, the innovation sandbox “will provide a structured environment that permits individuals and organizations which are neither lawyers nor law firms to provide effective legal advice and assistance to address the public’s unmet legal needs”.392
Manitoba also uses a for-fee service-focused approach that generally restricts the practice of law to lawyers, but exempts various people from that restriction and also “negatively permits” non-lawyers to engage in a set of activities that fall within the “practice of law”, so long as they do not do so “directly or indirectly, for or in the expectation of a fee or reward”.393 This is a “negative permission” in the sense that specified legal activities are only deemed to fall within the category of the “the practice of law”, which is generally reserved for lawyers, where the activities are undertaken for or in the expectation of a fee or reward.
The exempted people are: public officers; notaries; district registrars and deputy registrars;394 a person acting on their own behalf or representing themselves; and, officers or employees of incorporated or unincorporated organizations preparing “in-house” documents.395 In addition, The Legal Aid Manitoba Act empowers organizations to employ non-lawyers to provide legal services, provided they do so under a solicitor’s supervision.396
The set of activities is broad and covers: providing legal advice; drawing, revising or settling various types of documents, including for use in any judicial or extra-judicial proceeding or relating to proceedings under any statute of Canada or Manitoba; settling or negotiating the settlement of a tort claim; and agreeing to provide a lawyer’s services to anyone except in certain contexts (such as a prepaid legal services plan). This set of activities appears ultimately to be as all-encompassing as the set of activities comprising the scope of “legal services” as defined in Ontario.
The “negative permission” therefore permits a wide range of legal activities falling within the “practice of law” to be undertaken for no fee by non-lawyers, but it does not appear to extend to appearing as a representative in court or otherwise acting for another person in relation to court actions. This is because these activities are prohibited to any person (other than a lawyer) separately from the restriction on the practice of law, and so these separate prohibitions do not appear to be overridden by the permission for no-fee practice of law activities.397 At the same time, assisting someone appearing on their own behalf for no fee is permissible (as opposed to appearing on their behalf for no fee), but subject to judicial scrutiny.398
Aside from these non-lawyer activities, some other lawyer-centric initiatives to improve access to justice have also been undertaken in recent years. One is the Family Law Access Centre, an initiative of the Law Society of Manitoba, which aims to provide lawyers to people with family law issues whose income is above the Legal Aid Manitoba financial eligibility cut- offs.399 The people who are assisted have to agree to pay the cost of the legal assistance, but this is charged at reduced rates by lawyers who have agreed to participate in the program. The service quickly hit maximum capacity, had to institute a waiting list, and has not been accepting new applications. It has been reported400 that the Law Society would like it to become a permanent program, but offered by an entity other than itself, since its principal mandate is regulation, not service provision.
The Law Society of Manitoba recently explored the issue of whether to advance access to justice by “giving up the profession’s monopoly over the delivery of legal services”.401 This exploration was undertaken by a President’s Special Committee on Alternative Legal Service Providers. In its Report and Recommendations Memorandum, the Committee was willing to acknowledge that “despite the statutory prohibition against the unauthorized practice of law, the reality is that many legal services are being provided to the public through service providers other than lawyers”.402 The Committee went on to observe that, although such activity was “technically”403 in breach of prohibitions on unauthorized practice, the Law Society had not sought to stop this activity because “in most cases, service providers: provide an important service (that lawyers do not seem to provide); are competent at what they do; and do not harm members of the public”.404
Ultimately, the Committee recommended a set of legislative amendments that would enable the Law Society to authorize a variety of access-to-justice-oriented legal services arrangements, as follows: further exceptions from the restrictions on the practice of law for categories of legal services providers who practise on an unregulated basis, including those already doing so; provision of prescribed legal services in family law or other areas by non-lawyers acting under the supervision of lawyers or acting independently under a new power to issue a limited licence for such provision; and delivery of legal services through mechanisms akin to the CSO-ABS approach in Ontario. Legislation taking up the recommendation on empowering limited licensing has recently been passed but is not yet in force.405 As far as we are aware, no legislative action has been taken in relation to the other recommendations.
A recent report published by the Manitoba Office of the Canadian Centre for Policy Alternatives on improving access to justice in Manitoba was one of the sources of information relied upon by the Committee. The report identifies a variety of community-based organizations who appear to use non-lawyer staff or volunteers to provide varying types and degrees of legal assistance on a no-fee basis.406
Saskatchewan has very recently amended key components of its Legal Profession Act, in response to the recommendations of a Task Team established by the Law Society of Saskatchewan. The overall approach in Saskatchewan remains lawyer-centric, but there is now power to grant “limited licenses” to non-lawyers that authorize them to engage in activities that fall within the practice of law. In addition, the recent amendments, when fully in force, will offer greater clarity on what constitutes the restricted practice of law. As with all other Canadian jurisdictions, Saskatchewan provides exemptions for some non-lawyers. At the same time, the recent amendments have revoked provisions that appeared to allow some scope for no-fee activities by non-lawyers.407
Saskatchewan has long imposed a restriction on the practice of law that generally prohibits any person who is not a member of the Law Society of Saskatchewan from doing so.408 It is only with the recent amendments that Saskatchewan has defined the practice of law and in doing so has used wording that is similar to the wording used for the definition of the provision of legal services in Ontario.409 Interestingly, Saskatchewan also chose, in keeping with a recommendation of the Task Team, to explicitly exempt from the ambit of the practice of law the provision of legal information to members of the public.410 Saskatchewan also exempts a variety of people from the restrictions on the practice of law, with some exemptions authorized by the Legal Profession Act and others by the Law Society Rules.
Under the Act, the exemptions cover: a person acting on their own behalf; an articled student-at-law; a police officer appearing for the Crown; an employee of the Saskatchewan or Canadian governments prosecuting summary conviction cases under federal statutes; a sheriff; and any other person authorized in the Law Society Rules. Under the Rules, as recently amended, the following further exemptions are provided: a mediator or conciliator; a participant in collective bargaining negotiations or dispute resolution; statutorily authorized adjudicators; legislative lobbyists; a public officer (acting within scope); government-employed lay representatives for administrative agencies and tribunals; notaries; persons delivering Indigenous Court Worker services; persons authorized to practise law under provincial or federal statutes; “in-house” providers; law students; and persons approved by an administrative tribunal to provide representation in administrative adjudicative proceedings.411
A further exemption, sought by the Law Society on the recommendation of its Task Team, has been enacted but is not yet in force.412 The exemption would apply to people who have been specially licensed by the Law Society to engage in particular limited activities that fall within the practice of law, despite not being lawyers. This exemption is built upon other new provisions that empower the Law Society to issue limited licenses and authorize limited licensees. The Task Team recommended this approach as a means of enabling so-called alternative legal services providers on a case-by-case basis, rather than creating a new general category of legal professional, as was done in Ontario with paralegals. This power of limited licensing could potentially be used to authorize the provision of community justice help, although we would argue that there may be drawbacks to imposing an additional licensing regime, set and monitored by lawyers, on providers of community justice help.
The approach in Nova Scotia is similar to the modified lawyer-centric approach with a for-fee service focus taken in Manitoba in the sense that there is a general restriction but also a negative permission for no-fee activity. In Nova Scotia, the practice of law is expressly defined as “the application of legal principles and judgement with regard to the circumstances or objectives of a person that requires the knowledge and skill of a person trained in the law”.413 This is supplemented with a list of specified conduct, when undertaken on behalf of another in relation to their legal rights or responsibilities, that covers advice and counsel, preparation of documents and agreements, representation before adjudicative bodies, and negotiation.414 This amounts to a range of activity that appears to be as broad as the range encompassed by the definition of “legal services” in Ontario.415 The Nova Scotia regime expressly prohibits people other than licensed lawyers (members of the Barristers’ Society, which is the self-regulatory body for lawyers in Nova Scotia), approved foreign jurisdiction lawyers, articled clerks, or law students participating in supervised legal aid or clinical programs, from practising law “for fee, gain, reward or other direct or indirect compensation”.416 Consequently, the Nova Scotia regime negatively permits any person to engage in practice of law activities on a no-fee basis. While this could enable community justice help (to the extent that it can be characterized as legal services), we have been unable to identify any programs or providers of no-fee legal services in Nova Scotia.
In addition, persons representing themselves are exempted from the general restriction, as are various other types of people and entities in relation to their roles and functions: public officers; relevantly empowered incorporated loan or trust companies; accountants in relation to the accounting affairs of persons employing them; agents representing corporations where statutorily authorized; a law corporation; an insurance agent or adjuster; mediators and arbitrators; trade union employees in relation to arbitration or administrative proceedings; elected representatives (federal, provincial and municipal); Senators; and others as otherwise designated.417
Under the Code of Professional Conduct of the Nova Scotia Barristers’ Society, lawyers are generally permitted to assign tasks associated with their practice of law to non-lawyer staff and assistants, but only while maintaining direct supervision, and some activities are excluded.418
New Brunswick’s approach generally restricts the practice of law to licensed lawyers (members of the Law Society of New Brunswick, as well as licensees from other Canadian jurisdictions), but also permits professional corporations, students-at-law and law students participating in supervised legal aid and clinical programs to do so.419 In addition, various types of people are exempted: people acting on their own behalf; paid and supervised staff and assistants of lawyers; public officers; trustees in bankruptcy; insurance adjusters; and providers of mediation or arbitration services.420 Further, a range of activities are expressly not prohibited: drawing or revising a power of attorney or a transfer of stock (without a trust or limitation); witnessing or certifying an instrument or proceeding; and practising an occupation or profession that is authorized or licensed under provincial statue or regulations.421
The practice of law is expressly defined as “applying legal principles and procedures for the benefit of or at the request of another person”,422 and this definition is supplemented with an exhaustive list of included activities, one of which could serve as something of a catch-all, that is, “providing legal services”.423
As such, the regulatory framework in New Brunswick does leave some room for non-lawyers to undertake practice of law activities. That room is provided by the specific exemptions for non-lawyers performing specified roles, but also by the specifically enumerated non-prohibited activities and the non-prohibition of the practices of other regulated occupations and professions. In this last respect, there is a similarity to the exemption in the Ontario scheme that we have argued provides a basis for community justice help in that jurisdiction. We have not been able to identify any literature on activities in the nature of community justice help being undertaken by members of regulated occupations or professions, such as social workers, in New Brunswick.
Following inquiries with the Law Society, it appears that the non-prohibited activities, in particular relating to drafting powers of attorney, are only being undertaken by non-lawyers in the limited and most immediately relevant contexts of personal banking and personal health care management.
Prince Edward Island
The regulatory framework in Prince Edward Island (PEI) is in general terms similar to those in Manitoba and Nova Scotia, in the sense of a general restriction on the practice of law to lawyers but with various exemptions and also a negative permission for no-fee activities (therefore, a for-fee service-focused approach). The PEI framework revolves around a restriction on practising as a “barrister, solicitor or attorney”424 and defines the scope of such practice and professions by reference to a wide-ranging enumerated list of activities, when undertaken “for fee, gain, reward or otherwise, directly or indirectly”.425 While this could enable community justice help (to the extent that it can be characterized as legal services), we have been unable to identify any programs or providers of no-fee legal services in PEI.
The PEI framework provides exemptions from the general restriction for people occupying various roles: employees who prepare “in-house” documents; employees of labour relations organizations (for appearances before public boards or commissions); any person appearing on behalf of another before a Labour Arbitration Board; before public officers (acting within scope); notaries; and articled clerks.426
Newfoundland and Labrador
Newfoundland and Labrador uses the version of the modified lawyer-centric approach that includes a for-fee service focus. The practice of law is generally restricted to lawyer-members of the Law Society of Newfoundland and Labrador or their professional corporations.427 The restriction expressly does not apply to some others: people acting on their own behalf (except collectors of assigned debts); people appearing as agents where authorized; employees of lawyers; and students, where authorized by the Law Society.428 In addition, the restriction does not apply to “drawing, preparing, revising or settling” legal documents for oneself or for others “without receiving or expecting to receive a fee, gain, reward or benefit”.429 While this could enable a dimension of community justice help (to the extent that it can be characterized as legal services), we have been unable to identify any programs or providers of no-fee legal services in Newfoundland and Labrador.
The practice of law is expressly defined by reference to an enumerated list of activities, including what might be regarded as the catch-all of “acting as a barrister or solicitor”.430 There are exemptions for people in various roles: public officers; real estate agents; insurance adjusters; notaries; and students, where authorized by the Law Society.431 There is also protection for arranging for the delivery of legal services under a pre-paid legal services plan.
In Quebec, the regulatory framework has an important similarity to the approach in Ontario in that the performance of practice-of-law activities is permitted to both advocates, who are equivalents to licensed lawyers in other Canadian jurisdictions, and notaries, who have a scope of practice that is similar but different to that of paralegals in Ontario (and, therefore, is much broader than the scope of permitted practice of traditional notaries in most other Canadian provinces). In contrast to the approach in Ontario, where paralegals are regulated by the Law Society, Quebec notaries have their own self-regulatory body.
The Barreau du Quebec is responsible for regulating advocates (Quebec-licensed lawyers) and also solicitors (out-of-Quebec licensed lawyers and some others, as authorized).432 The activities reserved to advocates and solicitors are broadly defined and include “to give advice and consultations on legal matters”.433 Also, the activity of representing a person before a tribunal, with some exceptions, is generally restricted to advocates only (that is, prohibited to solicitors).434
The Chambre des Notaries du Quebec is responsible for regulating notaries.435 Subject to the permission for advocates and solicitors to engage in practice-of-law activities, no person other than a notary is permitted to perform various activities, including the traditional activity of notarizing documents, as well as a specified list of other activities relating to specific legal documents, but also extending to “give legal advice or opinions”.436 The website of the Chambre explains the scope of practice of notaries as follows:
Many people think that notaries only draft wills and settle successions or that they only handle the buying and selling of property, but today's notaries practise in areas that go beyond the traditional fields of notarial activities.
As legal advisors, notaries are authorized to provide advice in all areas of law within their expertise, including: family law; real estate law; law of succession; business law; tax law; co-ownership; agricultural law; financial planning; commercial mediation; family mediation; environment issues; arbitration; air law; maritime law; immigration and adoption procedures; and others.437
This represents a much broader scope of substantive practice areas than Ontario paralegals. On the other hand, notaries have somewhat more limited permission to represent people in adjudicative proceedings than do Ontario paralegals.
Notaries provide a substantial amount of legal service in Quebec and constitute an important supplement to the level of service available from advocates. As licensed legal services providers though, and with licensing requirements that are more robust and time consuming than for paralegals in Ontario, Quebec notaries are not the type of community-based not-for-profit non-lawyers that are the focus of this research.
There does not appear to be much express scope for community-based not-for-profit non-lawyers to provide legal services within the regulatory regime in Quebec. But that is not to say that improving access to justice has not been a concern in Quebec in recent years. In particular, beginning with a pilot project in 2012, the government of Quebec has incrementally established 10 Community Justice Centres (CJC)438 throughout the province. The scope of service of CJCs is limited to the provision of legal information and referrals. CJC staff include advocates, notaries and law students.
At the level of potential future regulatory reform, it should be noted that the Barreau du Québec produced a report in 2011 on the issue of deregulating the private practice dimension of the legal profession to improve economic efficiency and to foster interdisciplinarity.439 The report offers a framework of regulatory reform to be implemented by 2021. The proposed reforms would be intended to improve access to legal services, but more for businesses and middle- or higher-income individuals than for people living on low incomes, who are the primary concern of this research.
In Yukon the regulatory approach is similar to New Brunswick, with a general lawyer-centric restriction that prohibits any person other than lawyers (or others authorized by the Legal Profession Act, such as articling students and lawyers from other Canadian jurisdictions, or the Law Society of Yukon), from delivering legal services,440 but with an allowance for “the lawful practice of a prescribed regulated profession”.441 The scope of legal services is explicitly and broadly defined.442 There are exemptions for other people occupying various roles: public officers; elected representatives; and Indigenous Court Workers.443 (The regulatory framework empowers the responsible Minister and the Law Society to authorize Indigenous Court Workers and to specify the range of legal services they may offer.)444 Employees of lawyers, a legal professional corporation or an authorized government office may also provide legal services, under supervision.445 The Rules of Conduct of the Law Society of Yukon empower it to authorize Quebec notaries to provide legal services as Canadian Legal Advisors.446 Other sections of the Rules authorize licensed legal services providers other than lawyers from other Canadian provinces to provide legal services in the Yukon.
In Nunavut the regulatory framework for the legal profession adopts an approach that blends together a variety of components used in other Canadian jurisdictions. Similar to every other jurisdiction, Nunavut generally prohibits anyone but members of the Law Society of Nunavut from engaging in the practice of law.447 The practice of law is defined explicitly and broadly.448 People performing roles of public officers, elected representatives or notaries are deemed not to be practising law. In addition, and similar to British Columbia, the framework deems legal services activity undertaken for no fee, gain or reward not to fall within the practice of law.449 Other provisions provide that specified other people are exempted from the restriction on practising law, including: people acting on their own behalf in proceedings and in preparing legal documents; insurance adjusters; authorized agents; and students-at-law.450 In addition, since 2017, the Law Society of Nunavut has been empowered, similar to Manitoba and Saskatchewan, to create limited licenses.451 We are not aware of any instances of the Law Society’s use of this power.
358 At present, only Quebec takes a similar approach to Ontario in that, in addition to lawyers (advocates), Quebec also licenses “notaries” who have a much more substantial breadth and depth of permitted legal practice than do their namesakes in Ontario and other Canadian jurisdictions. As is explained further in section J of this Appendix, Quebec notaries are more akin to Ontario paralegals.
359 Law Society Act, RSO 1990, c L 8, s 1(1) [Law Society Act (Ontario)].
360 Ibid., s 1(5).
361 Ibid., s 1(6). Further, ss. (7) provides more detail on what activities are included in “representing a person in a proceeding”.
362 Law Society of Ontario, By-Law 4, Licensing (1 May 2007), s 6(2) [Law Society of Ontario, By-Law 4].
363 As set out in s. 6(2)2: Small Claims Court, Ontario Court of Justice (provincial offences proceedings), summary conviction court (Criminal Code proceedings), provincial and federal tribunals, and claims dealt with by other persons.
364 Law Society Act (Ontario), supra note 2, s 1(8).
365 Law Society of Ontario, By-Law 4, supra note 5, s 28.
366 Ibid., s 30 and s 31.
367 Law Society of Ontario, By-Law 7.1, Operational Obligations and Responsibilities (25 October 2007). Only Ontario law students, not law students in the rest of Canada, and Ontario paralegal students, have authorization in the context of student legal aid services societies and clinical education courses or programs [Law Society of Ontario, By-Law 7.1].
368 The Law Society of Ontario “authorized” unbundling in 2011 by amending the Rules of Professional Conduct to specifically address “limited scope retainers”: Law Society of Ontario, Rules of Professional Conduct, rule 3.2-1A, online: Law Society of Ontario www.lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct [Law Society of Ontario, Rules of Professional Conduct].
370 Law Society of Ontario, Rules of Professional Conduct, supra note 11, rule 3.4-16.2. For purposes of the modified standard, a “pro bono lawyer” means “(i) a volunteer lawyer who provides short-term pro bono services to clients under the auspices of pro bono provider or (ii) a lawyer providing services under the auspices of a Pro Bono Ontario program.”
371 For the current framework, see Law Society of Ontario, By-Law 7.1, supra note 10 s 2.1.
372 Law Society of Ontario, By-Law 7, Business Entities (1 May 2007), Part IV.
373 Hon. Annemarie E. Bonkalo, Family Legal Services Review Report (Toronto: Ministry of the Attorney General, 2016), online: www.attorneygeneral.jus.gov.on.ca/english/about/pubs/family_legal_services_review/.
374 In June 2020, the LSO released a Call for Comment on a proposal to introduce a Family Legal Services Provider Licence.
375 Law Society of Alberta, “Alternative Delivery of Legal Services Final Report” (February 2012) at 16 and 25, online: Canadian Bar Association www.cba.org/CBA/cle/PDF/JUST13_Paper_Billington.pdf.
376 Legal Profession Act, RSA 2000, s 106(1).
377 Ibid., s 107(1).
378 Ibid., s 106(2).
379 Law Society of Alberta, The Rules of the Law Society of Alberta (December 3, 2020), Part 1, s 2 (1.1) and (1.2), online (pdf): Law Society of Alberta www.documents.lawsociety.ab.ca/wp-content/uploads/2017/01/04144612/Rules.pdf.
380 Law Society of Alberta, “Approved Legal Services Provider – Application Guide” (accessed 20 January 2021), online: Law Society of Alberta www.documents.lawsociety.ab.ca/wp-content/uploads/2019/06/ALSP-Application-Guide.pdf.
381 Ibid. at 1, para 1.
382 Ibid. at 2, para 7.
383 See Law Society of Alberta, “Approved Legal Service Providers for the Public” (20 January 2021), online: Law Society of Alberta www.lawsociety.ab.ca/resource-centre/public-resources/approved-legal-services-providers-for-the-public/.
384 Legal Profession Act, RSBS 2007, s 1(1) definition of “practice of law”, ss (h) [Legal Profession Act (BC)].
385 This allowance is extremely narrow – it only allows a non-lawyer representative when there are no lawyers practising in the geographic vicinity.
386 Legal Profession Act (BC)], supra note 27, s 15(1).
387 Ibid., s 1(1) definition of “practice of law”, ss (i), (j), (k).
388 Ibid., definition of “practice of law”, ss (l).
389 The Society of Notaries Public of British Columbia, “The Society of Notaries Public of British Columbia” (accessed 20 January 2021), online: The Society of Notaries Public of British Columbia www.snpbc.ca/; Notaries Act, RSBC 1996, c 334, ss 28, 55; Lisa Trabucco, “Lawyers’ Monopoly? Think Again: The Reality of Non-Lawyer Legal Service Provision in Canada” (2018) 96 The Canadian Bar Review, 460 at 478, stating: “British Columbia’s notaries are self-regulating and provide non-contentious legal services relating to the purchase and sale of a business, contracts, health care declarations, insurance loss declarations, notarization of documents, real estate transfers, wills preparation, and powers of attorney.” [Trabucco].
390 Designated paralegals are permitted by the LSBC to provide legal advice, appear at tribunals and participate in family law mediations, see The Law Society of British Columbia, Code of Professional Conduct for British Columbia (the BC Code), Law Society of BC, 2013, ch 6 and Law Society of British Columbia,Law Society Rules 2015(updated December 2020), Rule 2-13., online: Law Society of British Columbia www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/.
391 See information online: Law Society of British Columbia, “Licensed Paralegals” (accessed 20 January 2021), online: Law Society of British Colombia www.lawsociety.bc.ca/our-initiatives/legal-aid-and-access-to-justice/licensed-paralegals/.
392 Law Society of British Columbia, “Innovation Sandbox” (accessed 20 January 2021), online: Law Society of British Columbia www.lawsociety.bc.ca/our-initiatives/innovation-sandbox/.
393 Legal Profession Act, CCSM c L107, s 20(3) [Legal Profession Act (Manitoba)].
394 In relation to the Real Property Act only.
395 Legal Profession Act (Manitoba), supra note 36, s 20(4).
396 The Legal Aid Manitoba Act, CCSM c L105, s 15(1).
397 Legal Profession Act (Manitoba), supra note 36, s 20(3). In R v Stagg, 2011 MBQB 294, the Manitoba Court of Queen’s Bench recognized that, in accordance with the Criminal Code of Canada, paid non-lawyer agents are permitted to represent people in summary conviction matters in the Provincial Court, but it has held that that it does not have inherent jurisdiction to circumvent the general prohibition in the Legal Profession Act on non-lawyers acting as paid representatives.
398 In Moss v NN Life Insurance Co, 2004 MBCA 10 (CanLII), the Manitoba Court of Appeal held that an unpaid non-lawyer may provide assistance to a person acting on their own behalf in legal matters, including during court proceedings, without violating the separate prohibitions. This holding relies upon a distinction between assisting someone who is acting on their own behalf and appearing on behalf of someone or otherwise acting on their behalf in relation to court proceedings.
399 Allison Fenske and Beverly Froese, Public Interest Law Centre, Justice Starts Here: A One-Stop Shop Approach for Achieving Greater Justice in Manitoba (Winnipeg: Canadian Centre for Policy Alternatives Manitoba, 2017) at 43-44, online: Canadian Centre for Policy Alternatives [Fenske & Froese].
401 President’s Special Committee on Alternative Legal Service Providers, Report and Recommendations Memorandum (11 April 2018) (Law Society of Manitoba) (on file with authors) at 1.
402 Ibid. at 7.
406 Fenske & Froese, supra note 42.
407 This apparent allowance was a product of the wording of the pre-amendment s. 30 of the Legal Profession Act, which defined the “Authority to practise law”. The pre-amendment wording stated that no person other than a certified member of the Law Society could “practise at the bar of any court … in Saskatchewan”, “sue out any writ or process“, “commence, carry on or defend any action or proceeding in any court” or, and this is the apparent allowance, “advise, do or perform any work or service for fee or reward, either directly or indirectly, in matters pertaining to the law of Saskatchewan or any jurisdiction outside Saskatchewan”. Further, the section prohibited anyone who purported to represent another person in court proceedings from recovering any fee, reward or disbursement and deemed them to be guilty of contempt of court. The upshot of this appeared to be that a non-lawyer was negatively permitted to undertake activities on a no-fee basis in the practice of law, other than relating to court proceedings.
408 The Legal Profession Act, 1990, SS 1990-91, c L-10.1, s 30.
409 Ibid., s 29.1.
410 Ibid., s 30(3).
411 Law Society of Saskatchewan, Rules, Regina, LSS, 2020, r 1002.
412 This will be s 31 (h) of the Legal Profession Act, as amended by the Legal Profession Amendment Act, 2019, c 7, s 19 (b).
413 Legal Profession Act, SNS 2004, c 28, as amended by SNS 2010, c 56, s 16(1) [Legal Profession Act (Saskatchewan)].
414 Ibid., s 16(1).
415 The range in Ontario includes activities in relation to not only legal rights or responsibilities but also legal interest, which may mean it is broader.
416 Legal Profession Act (Saskatchewan), supra note 56, s 16(2).
417 Ibid., s 16(4).
418 Nova Scotia Barristers’ Society, Code of Professional Conduct (Halifax: Nova Scotia Barristers’ Society, 2011), ch 6.1, online: Nova Scotia Barristers’ Society hnsbs.org/wp-content/uploads/2019/11/CodeofProfessionalConduct.pdf.
419 Law Society Act, SNB 1996, ch 89, as amended by SNB 2009, ch 25, s 33(1).
420 Ibid., s 33(2).
422 Ibid., s 2.
424 Legal Profession Act, RSPEI 1988, c L-6.1, ss 20, 21.
425 The specific wording of this phrase, and the framing of the broader clause, is different to the framing and wording used in similar provisions in other jurisdictions, such as Nova Scotia, where the phrase is “… for no fee, gain, reward or other direct or indirect compensation.” In Ayangma v. Charlottetown (City) et al., 2016 PESC 16, the Supreme Court of PEI had held that, phrased as it is in PEI, ‘otherwise’ had to be read to contrast with ‘for fee, gain, reward’ and therefore had to include providing services on a no-fee basis. This had the effect of nullifying the apparent negative permission for no-fee provision and led to holding that a father preparing litigation documents for his son, for free, had violated the prohibition on the unauthorized practice of law. This interpretation was overturned on appeal to the Court of Appeal of PEI (see Ayangma v. Charlottetown (City) et al., 2017 PECA 15).
426 Legal Profession Act, RSPEI 1988, c L-6.1, ss 21 (2) & (4).
427 Law Society Act, SNL 1999 c L-9.1, s 76 [Law Society Act(Newfoundland)].
429 Ibid., s 76(1)(b).
430 Law Society Act (Newfoundland), supra note 70, s 2(2).
431 Ibid., s 2(2).
432 Act Respecting the Barreau du Quebec, ch B-1, s 128.
433 Ibid., s 128(1)(a).
434 Ibid., s 128(2).
435 Notaries Act, ch N-3.
436 Ibid., s 15, 16.
438 “Centres de justice de proximité” (accessed 20 January 2021), online: Centres de justice de proximité www.justicedeproximite.qc.ca/en/. See also: Centre de justice de proximité Grand Montréal, Pour une justice plus accessible: Rapport annuel (Montreal: Centre de justice de proximité Grand Montréal, 2018), online (pdf): Centre de justice de proximité Grand Montréal www.justicedeproximite.qc.ca/wp-content/uploads/2019/06/Rapport_annuel_CJPGM_2019.pdf.
439 Barreau du Québec, “Les avocats de pratique privée en 2021: Rapport du Comité sur les problématiques actuelles reliées à la pratique privée et l'avenir de la profession” (June 2011), online (pdf): Banq Numérique numerique.banq.qc.ca/patrimoine/details/52327/2221504.
440 Legal Profession Act, 2017, c-12, s 45.
441 Ibid., s 31(c).
442 Ibid., s 30(1).
443 Ibid., s 31(1).
444 Ibid., s 32(1).
445 Ibid., s 40(1).
446 Law Society of Yukon, Rules of the Law Society of Yukon, updated January 2020, ss 72, 73.
447 Legal Profession Act (consolidated to 2014), RSNWT (Nu) 1988, c L-2, s 68.
448 Ibid., s 1 (Definitions – “practice of law”).
450 Ibid., s 68(2).
451 An Act to Amend the Legal Profession Act, 2017, c 27, s 4(1) amending s 8(1).
Report a problem on this page
- Date modified: