Law Society v. Kopyto – Jan 2010 Update

December 21, 2009 witnessed Round Two in Harry Kopyto’s battle with the Law Society of Upper Canada (LSUC). His target is the monopoly that the LSUC has been given by the Access to Justice Act in 2007 over the provision of legal services in Ontario. The Law Society has squeezed the paralegal profession by reducing its scope of practice and destroyed its professional autonomy. The result: growing numbers of Ontarians for whom legal representation has become an unaffordable mirage.

Following the passage of the Act, the LSUC served Kopyto with a notice last summer seeking to disqualify him from working as a paralegal on the basis of his lack of “good character”. Kopyto had been working as a paralegal since his lawyer’s licence was pulled in 1989 following a fifteen year career during which he attracted the emnity of Big Law for his role as a thorn in the side of the legal establishment. However, following the rushed passage of the flawed potpourri of reforms ironically known as the Access to Justice Act in which the mandated takeover was buried, Harry’s number was up once again.

Kopyto is now seeking to be grandfathered as a paralegal. Having been forced by the LSUC to demonstrate proof of his good character, Kopyto is using the hearings to challenge the jurisdiction of the LSUC to regulate paralegals. He filed a motion to force the LSUC prosecution to provide him full disclosure of all relevant records and documents pertaining to its takeover of paralegals last September. The LSUC responded by refusing to release any information except those documents that it intends to rely on. Kopyto is arguing that he is entitled to receive all documents that are relevant. This includes studies and surveys commissioned by the LSUC which Kopyto believes will prove that the cost of legal services will increase as a result of the takeover. At least two formal inquiries, the Cory Commission and the Ianni Commission, recommended against the LSUC takeover in part precisely on this ground. Ignoring those inquiries, the LSUC took twenty years to finally win its turf war with paralegals.

The merits of Kopyto’s motion for disclosure will be argued on February 17, 2010 when the Law Society convenes for the third day of hearings. The two earlier hearing days of October 5, 2009 and December 21, 2009 each saw more then 50 supporters attend each day to back Kopyto. Those hearings involved a preliminary motion brought by Kopyto to have one of the three panel members sitting on his motion disqualified.

On October 5, 2009, Kopyto focused on the removal of Paul Dray as a Panel Member because of his role as a police officer for thirteen and a half years and his role as the Manager of prosecution services for the City of Brampton. Dray is the most senior of three former Toronto and Peel police officers sitting on the LSUC’s Paralegal Standing Committee as paralegals (out of 5 paralegals). They were groomed to give a veneer of cooperation of paralegals with the Law Society’s takeover. Kopyto lost round one when Committee Chair, Carl Fleck, a long-time Bencher (Director) of the LSUC and an integral part of its conservative elite, ruled that Dray’s background as a cop and prosecutor did not raise a perception of bias despite Kopyto’s iconic role as a fighter against police abuse.

Round two held on December 21, 2009 saw Kopyto renew his effort to knock Dray off the Panel, this time because of his role in leading the LSUC’s charge to take over the paralegal profession. This resulted in Dray being rewarded with the Chair position on its Paralegal Standing Committee. This time, Kopyto argued that Dray had a conflict of interest.

As a chief proponent of the takeover and as Chair of the LSUC’s Paralegal Standing Committee, Dray would be required to sit in judgment of a motion challenging his own interest. The conflict became apparent when Kopyto produced a letter addressed to Dray from the Competition Bureau in 2007 (established under the federal Competition Act) warning him of its concerns regarding the takeover. The letter expressed the Bureau’s fear that the intentionally unprecedented forced marriage of the paralegal profession to the LSUC which is run in its majority by lawyers would result in a reduction in competition and the scope of practice allowed paralegals. Kopyto argued that if Dray remains on the Panel, he would be determining if his own personal correspondence and records would be released. Kopyto cited a quasijudicial precedent that was almost exactly on point in which a Board ruled that a conflict of interest was established. In response, Panel Chair Carl Fleck, a Sudbury lawyer who has worked for federal government agencies and police boards, made several hostile comments to Kopyto during his presentation. He complained that Kopyto should have raised his concerns about Dray’s conflict of interest on October 5, 2009. Kopyto parried by arguing that he was not aware of the correspondence with Dray at that time and only discovered it by accident. His affidavit evidence in this regard was unchallenged.

Then Fleck changed horses implying in his comments that the issue had already been dealt with on October 5, 2009 when Kopyto first raised his challenge to Dray. Kopyto pointed out that he had mentioned Dray’s role in promoting the takeover of paralegals by the LSUC on October 5, 2009 only at the very end of his submissions in reply to the LSUC’s arguments and only as an example. Kopyto’s objection was made on that day in the context of Dray’s perceived bias against him considering his past associations with cops and prosecutors in relation to sitting on a Panel to decide Kopyto’s good character. This issue was clearly different from Dray’s conflict in sitting in judgment on a matter in which he has a clear interest; namely, the release of his own correspondence.

At the conclusion of the hearing on December 21, 2009, the Committee reserved its decision on Kopyto’s challenge to Dray’s participation on the panel to the beginning of the next scheduled hearing date which will be Round Three — on Wednesday February 17, 2010. The Committee faces a difficult choice ― acquiesce to Kopyto’s request or give him a possible ground of appeal based on Dray’s personal involvement in the matter.

Kopyto’s challenge to the legislation that placed paralegals under the control of the Law Society is based on the fact that it conflicts with s. 78 of the federal Competition Act provisions. As well, it denies access to justice to those people who cannot afford lawyer’s fees.

His challenge comes at a time when the LSUC itself is experiencing a crisis. Paul Chabas, a partner at the venerable establishment law firm of Blake Cassel & Graydon pointed out to a December 14, 2009 meeting of the ruling Benchers of the LSUC who administer its affairs, “While we may have a monopoly on the provision of legal services in this Province, it is a fragile one. Our governance model is indeed out of step.” He added, “Unless we propose change, unless we try to catch up rather than stay ahead of the curve, change will be thrust upon us”. The Access to Justice Act has already barred paralegals from appearing in Family Court as they were previously permitted to do. As well, the LSUC refuses to incorporate a program to permit paralegals to represent accused persons on summary offences punishable by more then six months imprisonment, as they were allowed to do until recently.

Thomas Heintzman, the Chair of an LSUC task force assigned to recommend reforms to the Law Society’s structure, advocated reforms at the meeting that would inject younger Benchers into what he described as “an old boys club.” Heintzman argued, “We have not exactly met the pressing issues of our day. We are by and large silent on Access to Justice, the legal aid question; we have done nothing significant about it. We have not exactly grappled with the marginalization of women.” Benchers at the meeting warned against the fact that the Ontario government could take over the administration of the provision of legal services to the public. Bob Aaron, a long serving Bencher, stated at the meeting, “What I advocate is that the government give serious consideration to assuming the governance of the Law Society. As a result of assuming a monopoly over the provision of legal services and as a result of taking over governance of the paralegal profession [paralegals, unlike lawyers, have no vote although they are members of and controlled by the LSUC], the LSUC has placed itself in a position where it is clear that the government itself should administer the regulation of both lawyers and paralegals.” Aaron pointed out that the LSUC’s proposal at the December 14, 2009 meeting that the number of ex officio members whose number almost equals those who are elected be reduced would not solve the problem. “What I think we are doing this morning is rearranging the deck chairs on the Titanic. The fact is that when it comes to the governance of the Law Society emanating from this room, we are not good at it.”

Kopyto’s challenge to the LSUC’s control over the paralegal profession is central to his defence. He is arguing that the LSUC represents the elite of the legal profession and that its interests are distinct from the “public interest”. Kopyto argues that the delivery of legal services including the governance of paralegals should be in the hands of the government and public interest groups including the paralegal profession, not in the hands of a competing profession whose economic interests are directly in competition to those of paralegals. Paralegals number only 5 out of 13 members of the Standing Committee. The election of paralegals to the Committee this Spring is a sham as they have no vote in electing benchers and are even a minority in their own Committee.

Convocation decided at the December 14th meeting to introduce twelve-year limits and to end life-Bencher status for those having served four terms as well as others. However, this does little to lessen the sense that the legal profession is placing its own narrow interests above the principle that the justice system should be accessible, independent and accountable to the public. The Access to Justice Act and amendments, which Mr. Kopyto is challenging, give the LSUC unlimited control over the provision of legal services in Ontario’s courts, are forcing up legal fees and constipating the courts, have abolished legal agents from appearing in Family Court and have prevented them from representing clients in catastrophic car accidents. Where there is money to be made, paralegals are cut out.

Paralegal governance clearly belongs in the public domain. The present scheme gives a private professional association with its own narrow interests a monopoly over the provision of legal services without any legal obligation to be transparent and accountable except to itself. The legislative power grab by the legal elite against its competitors in its own narrow economic interest runs contrary to the principle that the administration of the law should be neutral, transparent and accessible.

Mr. Kopyto’s challenge goes to the heart of the LSUC’s pretence that it is administering its absolute and monopolistic control over the provision of legal services in the public interest — its main rationale for the takeover.

It is apparent from the comments made by Fleck at the hearings that his main concern is to protect the LSUC’s monopoly over the paralegal profession and that principles of fairness, independence, neutrality, transparency and meaningful justice take second place. Members of the public who are concerned about accountable control over who can advocate in Ontario’s courts should support efforts to take it out of the private hands of the LSUC. Ultimately, the LSUC does not even represent the interests of the legal profession but only a privileged elite which serves Big Law and Big Money. Many lawyers complain frequently about being terrorized by the LSUC’s imperious and abusive rule which undermines a critical, independent stance and targets dissident lawyers. The Ontario government has already been forced to rescue the Ontario Legal Aid Plan which the government once placed under LSUC control when the short term myopic LSUC policies resulted in its complete mismanagement. The LSUC has done little if anything to ensure equal access to justice and to deal with overcrowding in the courts. It has completely ignored the fact that justice has become too often an illusion for working people because of its excessive price.

The scions of the Law Society largely represent the rich and powerful. They are not the voice of paralegals or even lawyers. The LSUC’s control over the provision of legal services should be challenged by every right-minded person who believes that justice should be available to all and not only to those with big bucks and connections. Kopyto believes that the Law Society patriarchs who rule in their own interest can have their monopolistic chokehold over the provision of legal services overturned. The struggle continues with Round Three on February 17, 2010 at 9:30 a.m., Law Society premises at Osgoode Hall in downtown Toronto. See you there!

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