CITATION: Caruso v. The Law Society of Ontario, 2023 ONSC 6744
DIVISIONAL COURT FILE NO.: DC-23-096-JR DATE: 20231129
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, D.L. Corbett, Charney JJ.
BETWEEN:
ANTONIO CARUSO
Josh Lang, for the Applicant
Applicant
– and –
THE LAW SOCIETY OF ONTARIO
Nader R. Hasan and Stephen Aylward, for
the Respondent
Respondent
– and –
COLLEGE OF IMMIGRATION AND
Ian W. Thompson, for the Intervenor,
CITIZENSHIP CONSULTANTS and
College of Immigration and Citizenship
ONTARIO PARALEGAL ASSOCIATION
Consultants
Proposed Intervenors
Wafa Khan, for the Intervenor, Ontario
Paralegal Association
HEARD at Toronto (by Zoom): November
1, 2023
REASONS FOR JUDGMENT
CHARNEY J.:
Introduction
[1] The central issue raised in this application is whether the processing and filing of immigration applications on behalf of clients is within the Applicant’s scope of practice as a paralegal licensed by the Law Society of Ontario (LSO).
[2] The Applicant takes the position that he is authorized to provide such legal services pursuant to s. 91(2) of the federal Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[3] The Applicant takes the position that, properly interpreted, there is no LSO by-law that limits the authorization set out in the IRPA. Accordingly, the LSO’s policy that purports to limit his scope of practice in matters relating to immigration to providing legal services in connection with proceedings or intended proceedings before the Immigration and Refugee Board (IRB) is, therefore, not authorized by the LSO by-laws.
[4] In the alternative, the Applicant argues that, to the extent that the LSO by-law does limit his scope of practice in matters relating to immigration, the by-law conflicts with the IRPA and is rendered inoperative by virtue of the doctrine of federal paramountcy.
[5] In the final alternative, the Applicant argues that the LSO’s restriction on his scope of practice infringes Charter s. 7.
Facts
[6] The Applicant, Antonio Caruso, is a paralegal practicing in Niagara Falls, Ontario. He is licensed by, and a member in good standing of, the LSO.
[7] He describes himself as a “staunch advocate for paralegals to practice immigration [law]”, and his affidavit focuses on his advocacy activities in this regard.
Relevant Statutory Provisions
[8] The issues raised in this case relate primarily to two statutes. The first is the Law Society Act, R.S.O. 1990, c. L.9 and By-Law 4 passed thereunder.
[9] The second is the IRPA.
[10] Both statutory regimes have undergone significant legislative reform in recent years, and this history is directly relevant to the legal analysis.
Law Society Act
[11] Lawyers and paralegals in Ontario are governed by the LSO. The regulation of lawyers by the LSO (formerly the Law Society of Upper Canada) dates back to 1797: “An Act for the better Regulating the Practice of the Law” 1797 (U.C.) (2nd Sess.), c. 13.
[12] The regulation, licensing and discipline of paralegals by the LSO only began in 2007 pursuant to statutory amendments enacted in 2006 (Access to Justice Act, S.O. 2006, c. 21, Sched. C). Ontario was the first province or territory to licence paralegals and remains the only province or territory in which paralegals require a licence.
[13] Section 26.1(1) of the Law Society Act contains a broad prohibition that “no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario”.
[14] Only lawyers are licensed to practice law. Paralegals are licensed to “provide legal services”. The Law Society Act defines “the provision of legal services” in ss. 1(5)-(7):
Provision of legal services
(5) For the purposes of this Act, 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.
Same
(6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:
Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person.
Selects, drafts, completes or revises, on behalf of a person,
i. a document that affects a person’s interests in or rights to or in real or personal property,
ii. a testamentary document, trust document, power of attorney or other document that relates to the estate of a person or the guardianship of a person,
iii. a document that relates to the structure of a sole proprietorship, corporation, partnership or other entity, such as a document that relates to the formation, organization, reorganization, registration, dissolution or winding-up of the entity,
iv. a document that relates to a matter under the Bankruptcy and Insolvency Act (Canada),
v. a document that relates to the custody of or access to children,
vi. a document that affects the legal interests, rights or responsibilities of a person, other than the legal interests, rights or responsibilities referred to in subparagraphs i to v, or
vii. a document for use in a proceeding before an adjudicative body.
Represents a person in a proceeding before an adjudicative body.
Negotiates the legal interests, rights or responsibilities of a person.
Representation in a proceeding
(7) Without limiting the generality of paragraph 3 of subsection (6), doing any of the following shall be considered to be representing a person in a proceeding:
Determining what documents to serve or file in relation to the proceeding, determining on or with whom to serve or file a document, or determining when, where or how to serve or file a document.
Conducting an examination for discovery.
Engaging in any other conduct necessary to the conduct of the proceeding.
[15] Also relevant is subs. 1(8), which exempts specified persons conducting specified activities from the definition of “practicing law or providing legal services”. Of relevance to this case is subs. 1(8)1, which provides:
(8) For the purposes of this Act, the following persons shall be deemed not to be practising law or providing legal services:
- 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.
[16] Section 27(1) of the Law Society Act provides for classes of licences to be prescribed by the LSO in its by-laws:
Classes of licence
27 (1) The classes of licence that may be issued under this Act, the scope of activities authorized under each class of licence and any terms, conditions, limitations or restrictions imposed on each class of licence shall be as set out in the by-laws.
[17] Finally, s. 62(0.1) 4 of the Law Society Act gives the LSO broad authority to make by-laws governing the classes of licences that may be issued, including the scope of activities authorized under each class of licence:
62(0.1) Convocation may make by-laws,
- prescribing the classes of licence that may be issued under this Act, the scope of activities authorized under each class of licence and the terms, conditions, limitations or restrictions imposed on each class of licence;
[18] Pursuant to its authority under s. 62(0.1) 4 of the Law Society Act, the LSO enacted By-Law 4, in 2007. That provision is at the heart of this legal dispute.
[19] Paralegals hold a Class P1 licence. Section 6(2) of By-Law 4 prescribes the scope of practice for paralegals:
Activities authorized
(2) Subject to any terms, conditions, limitations or restrictions imposed on the class of licence or on the licensee and subject to any order made under the Act, a licensee who holds a Class P1 licence is authorized to do any of the following:
Give a party advice on his, her or its legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.
Represent a party before,
i. in the case of a proceeding in the Small Claims Court, before the Small Claims Court,
ii. in the case of a proceeding under the Provincial Offences Act, before the Ontario Court of Justice,
iii. in the case of a proceeding under the Criminal Code, before a summary conviction court,
iv. in the case of a proceeding before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, before the tribunal, and
v. in the case of a proceeding before a person dealing with a claim or a matter related to a claim, before the person.
Anything mentioned in subsection 1 (7) of the Act, provided the activity is required by the rules of procedure governing a proceeding.
Select, draft, complete or revise, or assist in the selection, drafting, completion or revision of, a document for use in a proceeding.
Negotiate a party’s legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.
Select, draft, complete or revise, or assist in the selection, drafting, completion or revision of, a document that affects a party’s legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.
[20] By-Law 4 defines “proceeding” as a “proceeding or intended proceeding” before certain bodies, including “a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament”.
[21] If a legal service does not fall within a paralegal’s scope of practice under By-Law 4, it is proscribed by s. 26.1(1) of the Law Society Act.
[22] While not raised in his factum or Notice of Application, the Applicant argued in oral argument that By-Law 4 was not authorized by the Law Society Act. Given the broad authority granted by s. 62(0.1) 4 of the Law Society Act to prescribe “the classes of licence that may be issued [and] the scope of activities authorized under each class of licence”, this position is without merit.
[Immigration and Refugee Protection Act](https://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html)
[23] Two sections of the IRPA are directly relevant to the legal issues raised in this case. The first is s. 167(1), which provides:
Right to counsel
167(1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.
[24] The “Board” referred to in s. 167(1) is the IRB, which consists of the Refugee Protection Division, Refugee Appeal Division, Immigration Division and Immigration Appeal Division.
[25] Section 167(1) is very similar to the statutory provision – s. 69(1) of what was formerly the Immigration Act, R.S.C. 1985, c. I -2 – considered by the Supreme Court of Canada in Law Society of British Columbia v. Mangat, 2001 SCC 67. Statutory amendments to the legislation in 2011 made significant changes to the statutory regime, and I will return to the significance of those amendments when I consider the Mangat case and its impact on the present statutory regime.
[26] The second relevant section is s. 91(1) and (2) of the IRPA. It provides:
91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.
Persons who may represent or advise
(2) A person does not contravene subsection (1) if they are
(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
(c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.
[27] Sections 91(1) and (2) were first enacted by Parliament in 2011.
Issues
[28] This Application raises three issues:
(1) Does LSO By-Law 4 permit paralegals to draft immigration documents or provide other immigration legal services that are not related to an IRB hearing?
(2) Does By-Law 4 conflict with s. 91(2) of the IRPA, such that it is constitutionally inoperative to paralegals licensed by the LSO?
(3) Does the LSO’s restriction on the Applicant’s scope of practice infringe his rights under Charter s. 7?
Court’s Jurisdiction
[29] In the ordinary course, this issue (the proper interpretation of By-Law 4) would come to the Divisional Court as an appeal under s. 49.38 (b) of the Law Society Act from a discipline proceeding against a paralegal who did not comply with the LSO’s interpretation of By-Law 4.
[30] In the present case, the parties have agreed that the matter can proceed to the Divisional Court, even though Mr. Caruso was not subject to a discipline proceeding.
[31] The enactment of By-Law 4 by the LSO was clearly an “exercise…of a statutory power”, within the meaning of s. 2(1) 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA), and the remedy sought by the Applicant is a declaration in relation to that exercise of a statutory power, bringing the relief requested within the jurisdiction of the Divisional Court under ss. 2(1) and 6(1) of the JRPA.
[32] While there may be some circumstances where it would be preferable to wait for an appeal from a Law Society Tribunal discipline hearing before the Divisional Court weighs in on the merits of the declarations sought, I am satisfied that this is not such a case. Firstly, the Law Society’s interpretation of By-Law 4 has been made abundantly clear to its members. Second, that interpretation has already been accepted by the Law Society Tribunal in other discipline cases: Law Society of Upper Canada v. Ghaneshirazi, 2017 ONLSTH 208, at paras. 7 and 12; Law Society of Ontario v. Belovari, 2023 ONLSTH 33, at paras. 41 and 43. In these circumstances, it is neither necessary nor appropriate to require Mr. Caruso to violate the clear direction of the Law Society and invite disciplinary proceedings before permitting him to seek the declarations sought in this case.
Issues
(1) Does LSO By-Law 4 permit paralegals to draft immigration documents or provide other immigration legal services that are not related to an IRB hearing?
[33] The LSO has formally taken the position that, pursuant to By-Law 4: “Drafting of documents or other legal services practices that are not related to an IRB hearing remain outside of a paralegal’s scope of practice”.
[34] This interpretation has been set out on the LSO’s FAQ webpage, which currently states:
As noted above, By-Law 4 authorizes paralegals to represent persons in certain “proceedings” and to engage in specific activities related to such “proceedings”. A “proceeding” includes a proceeding before administrative tribunals established under an Act of the Legislature of Ontario or under an Act of Parliament. The only such tribunal that adjudicates proceedings in the immigration context is the Immigration and Refugee Board (IRB).
This means that in the immigration context, a paralegal licence only authorizes a licensee to provide legal services in connection with a proceeding before the IRB. A paralegal licence does not authorize paralegals to provide other legal services in the immigration context, such as preparing or providing legal advice in relation to applications to Immigration, Refugees and Citizenship Canada (IRCC). An application to IRCC is not a “proceeding” within the meaning of s. 6 of By-Law 4. As such, the only persons who are authorized to provide legal services in Ontario in connection with applications to IRCC are duly licensed lawyers and immigration consultants licensed by the College of Immigration and Citizenship Consultants (CICC). If a paralegal wishes to provide such services, they must separately seek to be licensed as an immigration consultant by the CICC.
Prior to 2011, the federal Immigration and Refugee Protection Act (IRPA) and its regulations prohibited paralegals from providing any legal services in the immigration context for a fee, including in connection with proceedings before the IRB, unless they were separately licensed as immigration consultants by the CICC. In 2010, Law Society representatives appeared before a Parliamentary committee during its study of Bill C-35, draft legislation which included amendments to the IRPA relating to the licensing of immigration consultants. The Law Society requested that paralegals be included in the list of persons authorized to provide legal services in certain immigration matters. In response, Parliament amended Bill C-35 to include what is now s. 91(2)(b) of the IRPA, which provides that legal services in immigration matters may be provided by a “member in good standing of a law society of a province […], including a paralegal”. The purpose of this amendment was to bring the IRPA in line with the permitted scope of practice in By-Law 4 by permitting paralegals to appear before the IRB. This amendment was not intended to broaden the scope of practice for paralegals in immigration matters beyond what is permitted in By-Law 4.
[35] This statement is the position of the LSO with respect to the proper interpretation of By-Law 4.
[36] The LSO argues that its position as stated on its FAQ webpage qualifies as a “policy” adopted pursuant to s. 4.1 of the Law Society Act, which provides:
4.1 It is a function of the Society to ensure that,
(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and
(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.
[37] The Applicant appears to accept that the LSO’s interpretation of By-Law 4 is a policy but argues that the LSO is “acting ultra vires of its legislative authority by enforcing a scope of paralegal practice that has not been passed in a by-law”.
[38] The Applicant’s position in this regard misunderstands the term “ultra vires”. The LSO’s policy is simply its interpretation of By-Law 4. It does not purport to amend or expand By-Law 4, only to provide additional guidance to paralegals regarding the application of the By-Law to specific circumstances.
[39] The question for the court is whether the LSO’s interpretation of By-Law 4, as set out on the LSO’s FAQ webpage, is reasonable or correct, depending on the standard of review.
[40] That said, as noted above, the LSO’s interpretation of By-Law 4 has been accepted as the correct interpretation by the Law Society Tribunal in discipline proceedings against paralegals: Ghaneshirazi, at paras. 7 and 12; Belovari, at paras. 41 and 43. I note that in those cases there did not appear to be any dispute that the conduct of the paralegals was beyond the scope of their licence and in contravention of By-Law 4.
Standard of Review
[41] The Applicant did not directly address the standard of review in its factum, but indicated in oral argument that it takes the position that the standard of review is correctness.
[42] The LSO takes the position that the standard of review is reasonableness.
[43] In support of its position, the LSO relies on the Supreme Court of Canada’s decision in Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, where the Supreme Court held, at paras. 20 to 25:
In my view, the standard applicable to the review of a law society rule is reasonableness. A law society rule will be set aside only if the rule “is one no reasonable body informed by [the relevant] factors could have [enacted]”…
In the case at bar, the legislature specifically gave the Law Society a broad discretion to regulate the legal profession on the basis of a number of policy considerations related to the public interest. The Act empowers the benchers of the Law Society to make rules of general application to the profession, and in doing so, the benchers act in a legislative capacity.
The Law Society acted pursuant to its home statute in making the impugned rules, and in such a case there is a presumption that the appropriate standard is reasonableness… The Law Society must therefore be afforded considerable latitude in making rules based on its interpretation of the “public interest” in the context of its enabling statute…
Additionally, the Law Society has expertise in regulating the legal profession “at an institutional level” …This Court has previously recognized that self-governing professional bodies have particular expertise when it comes to deciding on the policies and procedures that govern the practice of their professions…[Citations omitted.]
[44] The Green case dealt with the validity of a Rule of the Law Society of Manitoba. In the present case, the issue at hand is not the validity of By-Law 4 (I have already addressed that at para. 22, above), but the interpretation of the By-Law.
[45] This case arrived at this Court as a judicial review, rather than as an appeal from the Law Society Tribunal. We are not being asked to review the factual findings of any tribunal or consider any of the Applicant’s past conduct. This case raises only a question of law.
[46] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, the Court confirmed, at para. 58, that general questions of law which are “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” will require the application of the correctness standard.
[47] In my view, it matters not whether the standard of review in this case is correctness or reasonableness. The LSO’s interpretation of By-Law 4 meets either standard.
Interpretation of By-Law 4
[48] The Applicant argues that there is nothing in By-Law 4 that explicitly prohibits him from filing immigration applications, or that confines his scope of practice to matters before the IRB. He argues that the terms “proceeding” and “tribunal” in the By-Law are broad enough to include not only proceedings before the IRB, but also other legal services in the immigration context, such as preparing or providing legal advice in relation to applications to Immigration, Refugees and Citizenship Canada (IRCC).
[49] The Applicant argues that neither the Law Society Act nor the LSO By-Laws define the term “proceeding”, other than to indicate that a proceeding also includes an “intended proceeding”. As such, there is no reason why the term “proceeding” cannot be interpreted as “including a written application to an IRCC officer as a procedural means of seeking immigration privileges in Canada”. He argues that any ambiguity in the By-Law should be interpreted against the LSO, which drafted the By-Law.
[50] The Applicant relies on the definitions of “tribunal” and “statutory power of decision” in s. 1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA), which provide:
“tribunal” means one or more persons, whether or not incorporated and however described, upon which a statutory power of decision is conferred by or under a statute;
“statutory power of decision” means a power or right, conferred by or under a statute, to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not;
[51] The Applicant argues that an immigration application is a document submitted to a person (such as the Minister of Citizenship and Immigration or an officer appointed by the Minister) upon whom a statutory power of decision has been conferred by the IRPA. That person has the authority to decide or prescribe legal rights and privileges, and therefore fits within the definitions of “tribunal”. As such, it is the Applicant’s position that immigration applications fit squarely into the definition of “proceeding before a tribunal” in By-Law 4.
[52] The LSO argues that an application to IRCC is not a “proceeding” within the meaning of s. 6 of By-Law 4. Some applications are made directly to the Minister, such as applications for relief on humanitarian and compassionate grounds (s. 25) and applications for exemption from certain statutory grounds of inadmissibility (s. 42.1). Other applications (such as applications for permanent residence and other visas) are made directly to an “officer” (s. 11). An “officer” is a person designated by the Minister under s. 6(1). The Minister may delegate the exercise of certain of the Minister’s authorities to such officers under s. 6(2). For example, the officers designated to process applications for permanent residence and other visas are typically front-line case workers employed by the IRCC. Similarly, the Minister delegates authority to IRCC case workers to determine applications for relief on humanitarian and compassionate grounds. These decision makers are not “tribunals” in the sense of an adjudicative body, but rather government departments acting to implement authority delegated to the Minister.
[53] In my view, the LSO’s interpretation of By-Law 4 is a reasonable and correct interpretation.
[54] I reach this conclusion for the following reasons:
[55] First, s. 1(5) – (7) of the Law Society Act (quoted above at para. 14) define “provides legal services” and sets out the scope of prohibitions against the unauthorized provision of legal services in s. 26.1 of the Act. The word “proceeding” appears in ss. 1(6) 2(vii) and 3:
1(6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:
- Selects, drafts, completes or revises, on behalf of a person,
vii. a document for use in a proceeding before an adjudicative body.
- Represents a person in a proceeding before an adjudicative body. [Emphasis added.]
[56] Both references to “proceeding” in the Act relate to proceedings before an adjudicative body.
[57] The word “proceeding” in By-Law 4 should be given the same interpretation as the word “proceeding” in the enabling legislation. “Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation”: R. v. Zeolkowski, 1989 72 (SCC), [1989] 1 S.C.R. 1378, at para. 19; Ruth Sullivan, The Construction of Statutes, 7th ed (Lexis Nexis Canada Inc., 2022) at § 8.04.
[58] I agree with the LSO that an application to the Minister or to IRCC officers or case workers is not a “proceeding” within the meaning of s. 6 of By-Law 4. Filing a written application to a government department does not begin the hearing process. While the Minister and officers under the IRPA may review applications and make initial decisions regarding a person’s immigration or refugee status, they are not “adjudicative bodies” as that term is generally understood in the legal profession.
[59] In contrast, the various divisions of the IRB, (the Refugee Protection Division, Refugee Appeal Division, Immigration Division and Immigration Appeal Division) clearly fall within the term “adjudicative bodies”.
[60] This interpretation is supported by the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, which dealt with the content and duty of procedural fairness placed on immigration officers under the former Immigration Act, R.S.C., 1985, c. I-2. The Court found that while a duty of procedural fairness applies to a decision of an immigration officer, the process was still an administrative process rather than an adjudicative process, and that no oral hearing was required.
[61] By-Law 4 must be interpreted in accordance with the modern rule of statutory interpretation, which requires that the words of an Act “be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Mangat at para. 6; Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 69 and cases cited therein.
[62] In my view, the suggestion that an immigration officer who reviews written applications is a “tribunal” or an “adjudicative body” is not consistent with the ordinary sense in which those words are used, nor with the schemes of the IRPA or Law Society Act.
[63] Second, the meaning of a “tribunal established under an Act of Parliament” in s. 6(2) 1 (iv) of By-Law 4 is clarified by a consideration of the other bodies before which paralegals are authorized to appear under s. 6 of By-Law 4. Most of those bodies are courts (Small Claims Court, Provincial Offences Act court, and summary convictions court). This indicates that “tribunal” in this context is intended to refer to a quasi-judicial adjudicative body.
[64] Finally, the LSO’s interpretation is supported by the history and purpose of By-Law 4.
[65] In 2007, Ontario became the first province or territory to license paralegals. This new regulatory framework was enacted through amendments to the Law Society Act introduced in the Access to Justice Act, 2006, S.O. 2006, c. 2, Schedule C. Schedule C was entitled: Amendments to the Law Society Act and Related Amendments to Other Acts. This Act was the framework legislation that gave the LSO authority to regulate paralegals and determine their scope of practice.
[66] Prior to these amendments, paralegals were not licensed, and were prohibited from acting as barristers and solicitors under s. 50(1) (a) of the Law Society Act and its various predecessors.
[67] The content of this prohibition was developed through case law, which held that the prohibition applied, among other things, to providing legal advice, drafting documents intended to have legal effect, or generally to assisting clients on matters affecting their legal position. This included acting in real estate transactions, preparing forms for divorce proceedings, advising parties to a dispute, and the preparation of government forms, such as the incorporation of companies: Law Society of Upper Canada v. Stoangi, 2003 7553 (ON CA), at para. 9.
[68] At the time of the 2006 amendments, there were several contexts in which non-lawyers could appear as “agents” in lower courts and tribunals.
[69] The history and scope of non-lawyer agency work before tribunals and in provincial offences proceedings in lower courts was extensively reviewed by the Ontario Court of Appeal in Regina v. Lawrie and Pointts Ltd., 1987 4173 (ON CA). In that case, the Court of Appeal confirmed that a non-lawyer could represent persons charged with traffic offences under the Highway Traffic Act, R.S.O. 1980, c. 198 by virtue of s. 51(1) of the Provincial Offences Act, R.S.O. 1980, c. 400, which provided that a defendant charged with a provincial offence “may appear and act personally or by counsel or agent”.
[70] One of the “related amendments” in the Access to Justice Act, 2006 was s. 131, which amended the Provincial Offences Act to align with the amendments to the Law Society Act. Section 82 of the Provincial Offences Act now provides: “A defendant may act by representative”, and s. 1 defines a “representative” as:
“Representative” means, in respect of a proceeding to which this Act applies, a person authorized under the Law Society Act to represent a person in that proceeding.
[71] Similarly, prior to 2006, s. 10 of the SPPA provided that “[a] party to a proceeding may be represented by counsel or an agent”. A “proceeding” under the SPPA meant (and still means) a proceeding before a tribunal where the tribunal is required to hold a hearing before making a decision (SPPA s. 3). This provision permitted non-lawyers to represent parties in hearings before administrative tribunals.
[72] Section 10 of the SPPA was amended by the Access to Justice Act, 2006, s. 134 (3) to align with the amendments to the Law Society Act. The amended provision provided that “[a] party to a proceeding may be represented by a representative” with the word “representative” defined as:
“representative” means, in respect of a proceeding to which this Act applies, a person authorized under the Law Society Act to represent a person in that proceeding.
[73] Pursuant to the Access to Justice Act, 2006, a number of similar amendments were made to repeal various statutory provisions that had previously permitted non-lawyer “agents” to appear in lower court and tribunal proceedings. In their place, “a person authorized under the Law Society Act” was permitted to represent a party in a “proceeding” before various adjudicative bodies, including Small Claims Court, Coroner’s Inquest, Health Services Appeal and Review Board, provincial judge or justice of the peace, Animal Care Review Board, Ontario Land Tribunal, Pay Equity Hearings Tribunal and the Ontario Rental Housing Tribunal: see sections 102(2), 103(3), 104(1), 105(1), 106(1), 109, 110, 112, 113, 118(1), 119, 121, 122(2), 124, 125(1) and (3), 126(2), 127(1), 129(1), 130(3), 131, 132, 133, 134(2), 136(1) and 137(1).
[74] What is significant about these various amendments is that the word “proceeding”, when used, always referred to a proceeding before a tribunal or lower court. Since this is what was meant by the word “proceeding” in the Law Society Act and the Access to Justice Act, 2006, this same interpretation should be applied to By-Law 4, which was enacted by the LSO in 2007 to operationalize the “Amendments to the Law Society Act and Related Amendments to Other Acts” found in Schedule C of the Access to Justice Act, 2006.
[75] Moreover, the Supreme Court of Canada’s 2001 decision in Mangat did not permit non-lawyers to prepare immigration application forms. The Court was clear that its decision permitted non-lawyers to only represent persons in hearings before the IRB (and to prepare documents for use at such hearings). The Court stated, at para. 74:
As this case dealt with hearings before the Adjudication and Refugee Divisions only, I would hold that the Legal Profession Act’s prohibition on non-lawyers from collecting a fee to act as representatives and to provide services in that regard is inoperative to that extent. The provision of services means document preparation and advice on matters relevant to the individual’s case.
[76] In 2004, the LSO established the Task Force on Paralegal Regulation. Following extensive consultations, the Task Force reported to Convocation on September 23, 2004. The Task Force recommended that the paralegal scope of practice should be based on existing practice, i.e., it should be limited to advocacy work and exclude solicitors’ work, stating, at paras. 73, 76 and 84:
The Task Force is of the view that existing areas of practice as defined in legislation and case law represent the appropriate scope of practice for paralegals and that only persons providing services in areas currently authorized should be regulated.
The Task Force is of the view that the case for expanding the scope of paralegal practice to include solicitors’ work has not been made out, that to do so would not enhance access to justice, and would be contrary to the public interest.
While many submissions advocated changes in the law on the permissible scope of practice in both directions, the Task Force does not recommend any changes at this time. In the view of the Task Force such changes complicate the model and would significantly delay, and perhaps prevent, the implementation of any regulatory model.
[77] The Task Force recommended, at para. 85:
It is recommended that the scope of practice for paralegals be the currently permitted areas of practice, as set out in legislation and case law. This would include the following:
a. Small Claims Court: all matters in Small Claims Court, including being recognized by the Court for the purposes of costs.
b. The Ontario Court of Justice: all matters under the Provincial Offences Act.
c. Tribunals: all matters before provincial boards, agencies and tribunals that allow for appearances by agents.
d. Ontario Court of Justice: appeals under the Provincial Offences Act.
Currently, s. 109 of the Provincial Offences Act authorizes agents to appear on appeals.
[78] A draft of By-Law 4 was tabled before Convocation in March 2007. One of the drafters, who had been a member of the Task Force, specifically stated that the by-law was intended to implement the recommendations of the Final Report of the 2004 Task Force:
Mr. Dray: Now, let me just take you through the background here. In this licensing by-law that we’ve set out, it basically adheres to the draft report of 2004 and when Bill 14 was passed, it required the changing of several by-laws and this is one that had to be changed.
I think some of the main areas if we go through is what is included in what we are licensed to do and that I think is in keeping with the 2004 report to Convocation. But just to go through that particular area, it has not really changed from 2004. It will be Provincial Offences Court, Small Claims Court, all tribunals, appeals at Ontario Court of Justice and that will be from provincial offences and the one thing that is in here that I do want to point out is that the P1 license will allow paralegals to appear on summary matters in criminal court.
Law Society of Upper Canada Convocation, Transcript of Proceedings, March 29, 2007, pp. 186, 188.
[79] Convocation adopted By-Law 4 with an effective dated of May 1, 2007.
Conclusion
[80] Based on the foregoing analysis, I conclude that the LSO’s interpretation of By-Law 4, as summarized on the LSO FAQ webpage, is a reasonable and correct interpretation of the By-Law, and that By-Law 4 does not permit paralegals to draft immigration documents or provide other immigration legal services that are not related to an IRB hearing. As these activities are not within the scope of practice permitted to paralegals, they are proscribed by s. 26.1(1) of the Law Society Act.
(2) Does By-Law 4 conflict with s. 91(2) of the IRPA, such that it is constitutionally inoperative to paralegals licensed by the LSO?
[81] The Applicant argues that if By-Law 4 does not permit paralegals to draft immigration documents or provide other immigration legal services that are not related to an IRB hearing, it conflicts with s. 91(2) (b) of the IRPA, which expressly authorizes “any other member in good standing of a law society of a province…, including a paralegal” to provide such services, and By-Law 4 is therefore inoperative under the federal paramountcy doctrine.
[82] In order to consider this second issue, we must start with the decision of the Supreme Court of Canada in Mangat.
[83] Mangat dealt with ss. 30 and 69(1) of the former Immigration Act, which authorized non-lawyers to appear at hearings before the IRB. The Supreme Court held that s. 26 of the British Columbia Legal Professions Act, S.B.C. 1998, c. 9, s. 15, which prohibited non-lawyers from engaging in the practice of law, was constitutionally inoperative because compliance with the provincial legislation was impossible without frustrating Parliament’s purpose.
[84] The Applicant argues that the decision in Mangat is determinative of the result in this case; that precisely the same conflict arises in this case, with the same result.
[85] Sections 30 and 69(1) of the former Immigration Act provided:
Every person with respect to whom an inquiry [by an adjudicator] is to be held shall be informed of the person’s right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person’s own expense.
(1) In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person’s own expense, be represented by a barrister or solicitor or other counsel.
[86] The central issues raised in Mangat were whether ss. 30 and 69(1) of the Immigration Act were intra vires the federal Parliament, and whether a provision of the provincial Legal Profession Act, which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law is constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations.
[87] The Supreme Court concluded, at para. 23, that the subject matter of the impugned provisions:
[F]alls within both the provincial jurisdiction over civil rights in the province under s. 92(13) of the Constitution Act, 1867 and the federal jurisdiction over aliens and naturalization under s. 91(25) of the Constitution Act, 1867. Statutes of the two levels of government regulating this subject matter will therefore coexist insofar as they do not conflict. Where there is a conflict, the federal legislation will prevail according to the paramountcy doctrine. In this case, there is a conflict between both statutes. The Immigration Act authorizes non-lawyers to appear for a fee, whereas the Legal Profession Act prohibits them from doing so. Dual compliance to both statutes is impossible without frustrating Parliament’s purpose. The Immigration Act must therefore prevail over the Legal Profession Act.
[88] It is not necessary to fully review the Court’s federalism analysis in Mangat. The parties in the present case do not dispute the application of the double aspect doctrine to the federal and provincial statutes at play in this case, only the application of the paramountcy doctrine to those statutes. I note only the Court’s conclusion at para. 47, which applies to the statutory provisions at issue in this case:
The subject matter of the representation of aliens by counsel before the IRB has federal and provincial aspects. Parliament and the provincial legislatures can both legislate pursuant to their respective jurisdiction and respective purpose. The federal and provincial statutes and rules or regulations in this regard will coexist insofar as there is no conflict.
[89] In considering the federal paramountcy doctrine, the Court in Mangat began by interpreting the term “other counsel” in ss. 30 and 69(1) of the Immigration Act. The Court held, at para. 55, that the term “‘other counsel’ must mean non-lawyers”.
[90] Significantly, the term “other counsel” did not mean “paralegals”, since, at the time, paralegals were neither licensed nor regulated by any regulatory body. The Court stated, at para. 56: “[T]here is nothing in those provisions which requires other counsel, whether they act for a fee or not, to be licensed”. As such, the provision did not incorporate a licensing requirement for “other counsel”.
[91] The Court then moved to the question of whether there is an operational conflict between the federal and provincial legislation. The Court concluded, at para. 72, that there was such a conflict because the provincial law conflicted with the purpose of the federal law:
In this case, there is an operational conflict as the provincial legislation prohibits non-lawyers to appear for a fee before a tribunal but the federal legislation authorizes non-lawyers to appear as counsel for a fee. At a superficial level, a person who seeks to comply with both enactments can succeed either by becoming a member in good standing of the Law Society of British Columbia or by not charging a fee. Complying with the stricter statute necessarily involves complying with the other statute. However, following the expanded interpretation given in cases like M & D Farm and Bank of Montreal, supra, dual compliance is impossible. To require “other counsel” to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act. In those provisions, Parliament provided that aliens could be represented by non-lawyers acting for a fee, and in this respect it was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural, and linguistic terms), and expeditious process, peculiar to administrative tribunals. Where there is an enabling federal law, the provincial law cannot be contrary to Parliament’s purpose. Finally, it would be impossible for a judge or an official of the IRB to comply with both acts.
[92] The Court therefore concluded, at para. 74, that the Legal Profession Act was inoperative to the extent that it prohibited non-lawyers from collecting a fee to act as representative and to provide services in hearings before the IRB.
[93] Also helpful in this analysis is the Supreme Court’s discussion of the two branches of the federal paramountcy doctrine in the later case of Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at para. 64:
Claims in paramountcy may arise from two different forms of conflict. The first is operational conflict between federal and provincial laws, where one enactment says “yes” and the other says “no”, such that “compliance with one is defiance of the other”: Multiple Access Ltd. v. McCutcheon, 1982 55 (SCC), [1982] 2 S.C.R. 161, at p. 191, per Dickson J. In Bank of Montreal v. Hall, 1990 157 (SCC), [1990] 1 S.C.R. 121, at p. 155, La Forest J. identified a second branch of paramountcy, in which dual compliance is possible, but the provincial law is incompatible with the purpose of federal legislation: see also Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at para. 72; Lafarge Canada, at para. 84. Federal paramountcy may thus arise from either the impossibility of dual compliance or the frustration of a federal purpose: Rothmans, at para. 14.
[94] The Court clearly states that Mangat falls into the second branch of paramountcy cases in which dual compliance is possible, but the provincial law is incompatible with the purpose of the federal legislation.
[95] In addressing the “incompatible purpose” branch of paramountcy cases, the Court stated, at para. 68, that “invocation of federal paramountcy on the basis of frustration of purpose, as opposed to operational conflict, requires clear proof of purpose; mere permissive federal legislation does not suffice”.
[96] The Court explained this, with specific reference to its decision in Mangat, at paras. 69 and 70:
The distinction between a federal purpose sufficient to attract the doctrine of federal paramountcy on the one hand, and absence of specific purpose on the other, is illustrated by a comparison of this Court’s decisions in Spraytech and Mangat. In Spraytech, the federal pesticide legislation was permissive, allowing the manufacture and use of the pesticides. In this sense, the federal scheme resembled the Aeronautics Act, which permits the construction of aerodromes wherever their construction is not expressly restricted. The impugned municipal by-law prevented the use of pesticides that would have been permitted under the federal scheme. L’Heureux-Dubé J. held that the second branch of the doctrine of federal paramountcy was not engaged:
Analogies to motor vehicles or cigarettes that have been approved federally, but the use of which can nevertheless be restricted municipally, well illustrate this conclusion. There is, moreover, no concern in this case that application of By‑law 270 displaces or frustrates “the legislative purpose of Parliament”. [para. 35]
In Mangat, by contrast, federal legislation provided for “other counsel”, who were not members of a provincial bar, to appear before the Immigration and Refugee Board (“IRB”) for a fee. However, the provincial statute required agents appearing before the IRB to be members of a provincial bar association or else refrain from charging a fee. Though it was possible to comply with both the federal and provincial enactments (non-lawyers could appear without charging a fee), Gonthier J. concluded that the provincial law undermined the purpose of the federal legislation (para. 72). Parliament had specifically provided that non-lawyers could appear before the IRB. This express purpose prevailed over the Province’s conflicting legislation.
[97] The point here is that, in Mangat, the Court found that Parliament’s purpose was to permit unregulated “other counsel” to represent persons before the IRB. Provincial regulation of “other counsel” was found to be inconsistent with that purpose. As the Court stated, at para. 72 of Mangat: “To require “other counsel” to be a member in good standing of the bar of the province …would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act.”
[98] In the present case we are no longer dealing with ss. 30 and 69(1) of the former Immigration Act.
[99] While the former s. 69(1) is very similar to the current s. 167(1) of the IRPA, s. 167(1) must be read in conjunction with s. 91(1) and (2), which was first enacted by Parliament in 2011 and requires that the provider of such services in Ontario be a member in good standing of the provincial law society or the College of Immigration and Citizenship Consultants: Law Society of Ontario v. Leahy, 2018 ONSC 4722, at para. 23.
[100] If it had previously been Parliament’s intention to permit unregulated “other counsel” to represent persons before the IRB under the Immigration Act, that purpose was abandoned by the amendment to the IRPA in 2011, which restricted such representation to four categories of licensed persons: lawyers, notaries (in Quebec), immigration consultants and paralegals.
[101] Some legislative history will be helpful to put the 2011 amendment into context.
[102] Section 114(1)(v) of the version of the Immigration Act considered by the Supreme Court in Mangat gave the Governor in Council the authority to enact regulations:
(v) requiring any person, other than a person who is a member of the bar of any province, to make an application for and obtain a licence from such authority as is prescribed before the person may appear before an adjudicator, the Refugee Division or the Appeal Division as counsel for any fee, reward or other form of remuneration whatever;
[103] At the time Mangat was decided, no such regulations had been enacted. The Court held that this provision confirmed Parliament’s intention that any such regulation would come, if at all, from the federal government. The Court stated, at para. 67:
As I mentioned above, there is no obligation for Parliament to regulate the “other counsel”, even though it may be wise and advisable to do so. The enactment of ss. 30 and 69(1) and of s. 114(1)(v) illustrates Parliament’s intention to address the subject of who may appear before the IRB. Aside from the situations where Parliament refers to provincial legislation (as it does for barristers and solicitors), the federal government has defined “other counsel” as being “a person”, and the provinces cannot intervene in that sphere. Moreover, by the enactment of s. 114, Parliament has demonstrated its intent to regulate such counsel if and when needed. It has not yet done so, but that does not mean that the provinces can enact conflicting legislation in the meantime. However, to the extent that Parliament refers to the provincial statutes and regulations or leaves the matter unaddressed, the provinces can regulate that matter in accordance with their own powers.
[104] When the IRPA was enacted in 2004, s. 114(1)(v) of the former Immigration Act was replaced by s. 91 of the IRPA, which provided:
- The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.
[105] Pursuant to this regulation making authority, in 2004, the Governor in Council adopted Regulation SOR/2004-59 that prohibited any person other than an “authorized representative” to “for a fee, represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, and officer or a Board.”
[106] An “authorized representative” was defined as:
A member in good standing of a bar of a province, the Chambre des notaires du Quebec or the Canadian Society of Immigration Consultants…
[107] The Canadian Society of Immigration Consultants is an independent body established by the federal government in 2003 to regulate non-lawyer immigration consultants.
[108] Thus, between 2004 and 2011, only licensed lawyers, Quebec notaries and immigration consultants could represent persons in proceedings before the IRB. (Recall that there was no such thing as a licensed paralegal anywhere in Canada prior to 2007).
[109] In 2011, s. 91 was amended to its present version. This amendment moved the prohibition against the unauthorized provision of immigration services from the regulation to the body of the IRPA.
[110] As the parties both point out, the original version of the draft legislation (Bill C-35) did not include paralegals, but the Bill was amended – at the request of the LSO – to include paralegals licensed by a provincial law society.
[111] In my view, the purpose of s. 91 can be discerned by comparing s. 91 to the statutory regime that existed when Mangat was decided by the Supreme Court.
[112] As indicated above, the Court in Mangat found that Parliament’s purpose was to permit unregulated “other counsel” to represent persons before the IRB. Parliament reserved for itself the authority to regulate such other counsel “if and when needed”. In the absence of such federal regulation, provincial regulation of “other counsel” was found to be inconsistent with that purpose. “To require “other counsel” to be a member in good standing of the bar of the province …would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act.”
[113] Section 91 now demonstrates a decidedly different legislative purpose. The purpose of s. 91 is to restrict the provision of immigration services to only regulated “other counsel”. These “other counsel” are regulated by three regulatory bodies identified in s. 91: the provincial law society, the Chambre des notaires du Québec, and the College of Immigration and Citizenship Consultants. Requiring “other counsel” to be members in good standing is no longer contrary to Parliament’s purpose, it is Parliament’s purpose.
[114] The text of s. 91(2) refers to a paralegal who is a “member in good standing of a law society of a province”. By limiting s. 91(2) to paralegals “in good standing”, Parliament demonstrated its intention that such paralegals would be regulated by the provincial law societies and comply with their regulatory requirements.
[115] This is made abundantly clear at para. 67 of Mangat, where the Court stated:
However, to the extent that Parliament refers to the provincial statutes and regulations …, the provinces can regulate that matter in accordance with their own powers.
[116] Where Parliament’s purpose is to restrict the provision of legal services to persons regulated by the provincial law society, regulation by the provincial law society is not incompatible with Parliament’s purpose. Indeed, regulation by the provincial law society is exactly what Parliament intended. These regulations may include matters such as educational requirements, professional competence, codes of conduct and scope of practice restrictions.
Conclusion
[117] Based on the foregoing, I conclude that LSO By-Law 4 does not conflict with the purpose of s. 91(2) of the IRPA, and the doctrine of federal paramountcy has no application.
(3) Does the LSO’s restriction on the Applicant’s scope of practice infringe his rights under Charter s. 7?
[118] Charter s. 7 provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[119] The Applicant argues that the principles of fundamental justice require that paralegals be allowed to practice the full scope of immigration law. He argues that “vulnerable and marginalized people” are being denied access to justice because the LSO has eliminated “an affordable option for representation on the full gamut of immigration applications”.
[120] The Applicant relies on no legal authority for his position, nor does he set out any facts in his affidavit to support his s. 7 claim.
[121] Charter s. 7 involves a two-step process. First, it must be determined whether there has been a deprivation of the right to life, liberty or security of the person. Secondly, the person seeking to establish the violation must establish that the deprivation of the right is not “in accordance with the principles of fundamental justice”. The onus is on the applicant to prove both the deprivation and the breach of fundamental justice: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 3; Mussani v. College of Physicians and Surgeons of Ontario, 2004 48653 (ON CA), at para. 45.
[122] The Applicant’s submissions do not explain how he has been deprived of the right to life, liberty or security of the person. He appears to suggest that any limit on his scope of practice as a paralegal is a limit on his liberty.
[123] This suggestion is inconsistent with the Court of Appeal’s decision in Mussani, at paras. 41 and 43, which held that the Charter does not protect the right to practice a profession.
[124] Nor has the Applicant established that By-Law 4 is inconsistent with any principle of fundamental justice.
[125] In Canadian Foundation for Children, the Supreme Court of Canada summarized the three criteria that must be met to qualify as a principle of fundamental justice, at para. 8:
Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria... First, it must be a legal principle. This serves two purposes. First, it “provides meaningful content for the s. 7 guarantee”; second, it avoids the “adjudication of policy matters” ... Second, there must be sufficient consensus that the alleged principle is “vital or fundamental to our societal notion of justice” … The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws. [Citations omitted.]
[126] The Applicant’s factum does not identify any principle of fundamental justice.
[127] In oral argument, the Applicant took the position that By-Law 4 was void for vagueness.
[128] Vagueness is a principle of fundamental justice. As the Court of Appeal stated in Cochrane v. Ontario (Attorney General), 2008 ONCA 718, 92 O.R. (3d) 321, at para. 37:
Vagueness describes a lack of precision in legislation that leaves its meaning and application unacceptably uncertain. Legislation should provide fair notice to citizens as to what conduct is prohibited, appropriate limits on the discretion of law enforcement officials and a proper basis for coherent judicial interpretation. A law that implicates the s. 7 right to life, liberty and security of the person will be struck down as being inconsistent with the principles of fundamental justice if it is not sufficiently intelligible to meet these objectives.
[129] In R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606, the Supreme Court of Canada held, at para. 42, “the threshold for finding a law vague is relatively high”, and recognized that vagueness requires unintelligibility, not simply uncertainty. A law should not be declared void simply because it requires judicial interpretation in order to determine its application to a particular situation.
[130] In Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, the Supreme Court stated, at para. 79:
Where a court is faced with a vagueness challenge under s. 7, the focus of the analysis is on the terms of the impugned law. The court must determine whether the law provides the basis for legal debate and coherent judicial interpretation. As I stated above, the first task of the court is to develop the full interpretive context surrounding the law, since vagueness should only be assessed after the court has exhausted its interpretive function. If judicial interpretation is possible, then an impugned law is not vague. A law should only be declared unconstitutionally vague where a court has embarked upon the interpretive process, but has concluded that interpretation is not possible. In a situation, such as the instant case, where a court has interpreted a legislative provision, and then has determined that the challenging party’s own fact situation falls squarely within the scope of the provision, then that provision is obviously not vague.
[131] In the present case, the legal debate revolved around the word “proceeding” in s. 6(2) of By-Law 4. Two possible interpretations were advanced by the parties, and this Court has found in favour of one. The By-Law clearly provides the basis for legal debate and coherent judicial interpretation. Having “embarked upon the interpretive process”, and provided an interpretation of s. 6(2) of By-Law 4, and determined that the Applicant’s proposed conduct is not permitted, “that provision is obviously not vague”.
Conclusion
[132] The Applicant has failed to demonstrate that the impugned By-Law deprives him of life, liberty or security of the person, or that it is contrary to any principle of fundamental justice. Accordingly, By-Law 4 does not infringe the Applicant’s rights under Charter s. 7.
Final Conclusion
[133] The Applicant and Intervenor, the Ontario Paralegal Association, advanced several policy arguments in support of the expansion of the scope of practice of paralegals in the immigration field. The Intervenor, the College of Immigration and Citizenship Consultants, made policy arguments in opposition to such expansion.
[134] It is not the role of this Court to determine whether, as a matter of policy, the scope of practice for paralegals should be expanded to include the processing and filing of immigration applications on behalf of clients. The policy issue has been delegated by the Ontario Legislature to the LSO, the body responsible for the regulation of paralegals. The Parliament of Canada has referentially incorporated the LSO’s regulatory requirements by requiring paralegals to be “members in good standing” of the provincial law society.
[135] The Application is dismissed.
[136] As agreed by the parties, the LSO as the successful party is entitled to costs in the amount of $20,000. The Intervenors are not entitled to costs and no costs are ordered against them.
___________________________ Charney J.
I agree
Backhouse J.
I agree
D.L. Corbett J.
Date: November 29, 2023
CITATION: Caruso v. The Law Society of Ontario, 2023 ONSC 6744
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Corbett, Charney JJ.
BETWEEN:
ANTONIO CARUSO
Applicant
– and –
THE LAW SOCIETY OF ONTARIO
Respondent
– and –
COLLEGE OF IMMIGRATION AND
CITIZENSHIP CONSULTANTS and ONTARIO
PARALEGAL ASSOCIATION
Proposed Intervenors
REASONS FOR JUDGMENT
Date of Release: November 29, 2023