HRPAO Government Relations Activities on Bill 14
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 HRPAO’s position that since HRPAO 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 HRPAO in good standing, complying with HRPAO Code of Ethics and be acting in the normal course of activity of a HR Professional. If you are not a member of HRPAO, 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.
HRPAO 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 HRPAO members, which would specifically exempt them from paralegal licensing under certain terms.
According to the Law Society’s by-law, HRPAO 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 HRPAO 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 HRPAO along with HRPAO 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 HRPAO 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 HRPAO members and non members, to find out more about the Law Society Act amendments and how they may affect your work duties and responsibilities.
HRPAO 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 HRPAO response to the LSUC letter.
Click here to see a copy of the LSUC response to HRPAO letter.
Click here to see a copy of the LSUC By-laws 4. See section 30(1) paragraph 7.
HRPAO Government Relations Activities on Bill 14
On October 27, 2005, the Government of Ontario introduced Bill 14, Access to Justice Act which included provisions to permit the Law Society of Upper Canada to regulate paralegals. The Bill’s scope was so broad as to capture the activities of many professionals beyond paralegals. After 1st and 2nd reading the Bill was referred to Justice Policy Committee of the Ontario Legislature for its review. On September 6, 2006, HRPAO made a submission to the Committee to ensure that HR professionals were not negatively impacted by these changes.
On September 19, 2006, as a result of HRPAO's proactive efforts to protect the interests of its members, amendments to Bill 14 were filed by the Government. These amendments excluded from the bill’s provisions “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”.
These amendments were accepted by the Committee and the Bill was referred back to the Ontario legislature for 3rd reading. Bill 14 was passed by Ontario legislature on October 19, 2006.
The Bill came into effect on May 1, 2007. As a result, there has been increased number of questions from members on the exemptions scope. For more information please see “Bill 14 Important Information” on this webpage.
Click here to see a copy of the amendment.
Click here to see the full-text of the HRPAO submission.
Click here to see the Government Press Release on the passage of Bill 14