One Roof Regulation


One Roof Regulation

Paralegal regulation and I grew up together in the policy world. The Ontario Access to Justice Act, 2006 was introduced on my very first day as a policy advisor in the Attorney General’s office. As I wilt with age, the debates around my policy-world twin continue with youthful endurance — sprouting perennially. Issues around paralegal regulation have popped energetically onto our radar in each of my ten years at the Ontario Bar Association. Observers remember only two occasions on which an AG appeared before Law Society convocation to ask for a particular policy decision, they were a decade apart and paralegal regulation was the issue both times.

I offer these observations about my long-time companion.

The Access to Justice Act and Access to Justice

The regulation of paralegals is often conflated with the creation of paralegals. As the years pass, people forget that the presence of paralegals was the constant, the variable was whether their services were offered inside or outside the regulated world of lawyers. As the Attorney General Bryant put it then:

The issue of paralegal regulation arises in this sense: There is no regulation of paralegals. Zip. None. A former treasurer of the Law Society... has lamented often that to sell a hot dog on the streets of Toronto, you need to get a licence. If on the other hand you want to hold out services to people, to represent them and give them legal advice in circumstances where they could be quite vulnerable, they need no such licence, no such training, no qualifications, nothing.

This will be equally important to remember as law societies make decisions around the regulation of AI. AI is the constant, regulation the variable.

In terms of adding consumer protection to existing services, paralegal regulation had instant successes — the backstops of a complaints process and mandatory insurance, for example. There are some excellent paralegals practising in Ontario, but conversations have continued around competency requirements to ensure up-front protection.

The question whose answer seems conspicuous by its absence is whether the Ontario Access to Justice Act has lived up to its lofty name — has paralegal regulation improved the affordability of legal services? Finding definitive data on that issue is like watching that iconic cartoon where the prankster has hidden an explosive to be triggered when Bugs Bunny plays the last note of a familiar piano ditty. Time after time, he fumbles through the song missing the last note, as the prankster looks on with growing frustration. One anticipates the affordability analysis with every page flip of every report on paralegal regulation, alas the last note goes unplayed. The justification for paralegal regulation does not depend on improved affordability. However, the affordability analysis is important when looking at expansion of paralegal scope of practice. Is eliminating the need for the education and experiential training of lawyers counterbalanced by improved affordability when paralegals are given new roles?

Self-Regulation and the Single Regulator

There was significant controversy around the single regulator model. This approach though has kept both professions safely in the world of self-regulation, for two reasons:

  1. Issues of scope of practice have been decided by the expert regulator with policy input from expert stakeholders. The politicization of these issues, while not absent, is a fraction of what we would see if government were the arbiter between two different regulators whose stakeholders disagreed on intersecting issues. Increased government involvement would threaten the self-regulation status of both professions; and
  2. Jurisdictions that have lost self-regulation remind us it is critical to distinguish between the role of the CBA and the role of law societies. The former advocates for lawyers, the latter does not and should not. There are many issues that have highlighted this distinction and the importance of the CBA’s advocacy role but none more clearly than issues where the regulator’s two professions disagree.

While the debates continue, they are increasingly healthy ones, in which all concerned understand it is not whether we improve access to justice, but how