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HRPA Survey on Organization Preparedness for Bill 168

The Human Resources Professionals Association (HRPA) surveyed its members on their organizational preparedness regarding the implementation of Bill 168: An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, on June 15th. HRPA surveyed 605 of its members, between June 2 and June 11, and found that 32 per cent said their place of business would not meet its obligations under Bill 168 before the June 15th deadline.  Fifty-three per cent of respondents said they would be most challenged to implement the legislation's mandatory employee training and workplace violence reporting and investigation procedure requirements.

Please click here to see survey

Bill 168 - An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters

On November 23, 2009, HRPA was invited to present to the Standing Committee on Social Policy on Bill 168-An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters.

In the presentation, HRPA focused on two sections of that act that members identified in that our Pulse Survey in the summer, they had concerns with; privacy concerns for employees who have had a history of violent behaviour; and the governments expectations from employers regarding prevention of domestic violence in the workplace

We asked that the committee review these sections in the proposed legislation to find a proper balance that will ensure that HR professionals can meet their commitment of a fair equitable and productive workplace for employers and workers.  The key messages in the presentation urge the government to be balanced in its approach in drafting up the regulations on the proposed legislation and to ensure that workers are protected from workplace violence, but not making the regulations onerous on employers.

Please click here to see a copy of the presentation.

Workplace Violence Prevention Consultation

On October 23, 2008, HRPA provided a submission to the Ministry of Labour consultation on Workplace Violence Prevention. To read the submission, please view “HRPA Submission On Workplace Violence Prevention”.

To learn more about the consultation paper click here.

Bill 14- Access to Justice Act

On May 1st, 2007, the Law Society became responsible for regulating the paralegal profession in Ontario, as a result of amendments to the Law Society Act (“Act”) contained in Bill 14, Access to Justice Act.  Under provisions in the Act, some activities currently done by HR Professionals may be seen as providing legal services and thus would be subject to the Law Society’s regulative, investigative, and disciplinary authority as part of the new paralegals licensing regime.

The Act states that, “a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.”

Examples given in the Act of providing legal service are when a person,

  1. Gives a person advice with respect to the legal interests, rights or responsibilities of the person of another person.
  2. Selects, drafts, completes or revises, on behalf of a person, a document that affects a person’s interests in or rights to or in real or personal property
  3. Represents a person in a proceeding before an adjudicative body
  4. Negotiates the legal interests, rights or responsibilities of a person.

As a result of this definition, some HR practitioners may find that they engage in conduct now covered by the Act – if, for example, they handle employment contracts, terminations, benefits, pensions or represent clients at the Ontario Labour Relations Board, Human Rights Tribunal or deal with collective bargaining issues.

Under certain conditions, anyone in Ontario, engaged in such activities, could be require to be licensed as a paralegal. Among other requirements, according to Law Society’s guidelines, those individuals would need to pass a licensing exam and carry errors and omissions insurance.

However, there are exceptions to these requirements where an individual, based on the Act, is excluded from its licensing provision.  According to the Act, the following groups and individuals are not subject to licensing under Bill 14:

  • A person who is acting in the normal course of carrying on a profession or occupation governed by another Act of the Legislature, or an Act of Parliament, that regulates specifically the activities of persons engaged in that profession or occupation.
  • An employee or officer of a corporation who selects, drafts, completes or revises a document for the use of the corporation or to which the corporation is a party.
  • An individual who is acting on his or her own behalf, whether in relation to a document, a proceeding or otherwise.
  • An employee or a volunteer representative of a trade union who is acting on behalf of the union or a member of the union in connection with a grievance, a labour negotiation, an arbitration proceeding or a proceeding before an administrative tribunal.
  • A person or a member of a class or persons prescribed by the by-laws, in the circumstances prescribed by the by-laws.

It is HRPA’s position that since HRPA and its members are governed pursuant to the Human Resources Professionals Act of Ontario, 1990, an Act of the Ontario Legislature, which regulates the HR professionals in Ontario, its members are not subject by the Act. To meet this exemption, you need to be a member of HRPA in good standing, complying with HRPA Code of Ethics and be acting in the normal course of activity of a HR Professional. If you are not a member of HRPA, or you are a member and are engaged in activities outside the normal course of our profession or occupation, you may be subject to an LSUC licensing regime.

HRPA has recently received correspondence from the Law Society advising us that they take a different view of the scope of the exemption set out in the Act. However, under their authority in the Act to create by-law exemptions, the Law Society has passed a provision for HRPA members, which would specifically exempt them from paralegal licensing under certain terms.

According to the Law Society’s by-law, HRPA members do not require a license if their profession or occupation is neither the provision of legal services nor the practice of law, if they provide legal services only occasionally and if they provide legal services as ancillary to their normal profession or occupation. The Law Society’s correspondence sets out, in greater detail, the conditions that they consider to be necessary for the exemption to apply. The Law Society has stated that it will review all their by-law exemptions within the next two years.

In our view, the Bill already exempts HRPA members, so this bylaw exemption is not necessary. However, while we do not agree with the Law Society's interpretation of the legislation, we felt it prudent to inform and alert our members to their position and the exemption they have offered.  A copy of Law Society’s letters to HRPA along with HRPA response and Law Society’s by-law 4 dealing with licensing have been posted at the end of this note. We encourage you to review these documents.

As you can see, there are differing views how Bill 14 will affect HRPA members and human resources professionals more generally.  Since Bill 14 has only recently come into force, its interpretation has not been considered by the Courts. Ultimately, it will be for them to decide.

For those who are concerned that their activities may fall outside of Law Society’s exemption, you may need to seek licensing as a paralegal. According to the Law Society’s guidelines, such individuals would be those providing legal services as permitted by the Act as their predominant area of activity and spending more then 30 hours a week on average on such activities. The Law Society has provided an interim allowance for such individuals through grandparent and transitional provisions. In the case of the grandparent provisions, you need to have practiced for a minimum of 3 years within the permitted scope of practice, be of good character, and pass a licensing exam.  There is a non-refundable registration fee of $500 to apply for this grandfathering plus a similar fee for the exam. The deadline to apply for these provisions is October 31, 2007.  For more information, please check Law Society’s website at: https://licensingprocess.lsuc.on.ca/paralegal/home/homepage.lsuc

If you feel that any of these provisions might apply to you, we strongly urge all HRPA members and non members, to find out more about the Law Society Act amendments and how they may affect your work duties and responsibilities.

HRPA will continue to keep our members informed as the matter evolves.

Click here to see a copy of the LSUC letter on the by-law exemption.
Click here to see a copy of the HRPA response to the LSUC letter.
Click here to see a copy of the LSUC response to HRPA letter.
Click here to see a copy of the LSUC By-laws 4. See section 30(1) paragraph 7.