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,
- Gives a person advice with respect to the legal interests, rights or responsibilities of the person of another person.
- 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
- Represents a person in a proceeding before an adjudicative body
- 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.
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.