Kopyto urges Competition Bureau to investigate Law Society

The following letter was sent to the Deputy Commissioner Of Competition for Civil Matters, Mr. Richard Taylor, on September 21st, 2010.

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Dear Mr. Taylor:

I am writing to you as a paralegal candidate practicing in Toronto who is seeking to be grandfathered by the Law Society of Upper Canada.

It has recently come to my attention that you may not have received a response to your letter dated January 25, 2007 addressed to Mr. Paul Dray, then Chair of the Paralegal Standing Committee of the Law Society of Upper Canada.  In your letter, you express concern that the Law Society might use its newly-acquired power under the Access to Justice Act, 2007 to pass by-laws to limit the scope of practice of paralegals in an effort to eliminate them as competitors.  This is apparent from By-law 4 passed by the Benchers of the Law Society pursuant to subsection 62(0.1) and (1) of the Law Society Act.  By-law 4 requires in paragraph 5 that paralegals be restricted to providing legal services which is further restricted to Smalls Claims, provincial offences, motor vehicle insurance benefits aside from catastrophic claims, appearances before Boards and appearances before a summary conviction court.  By-law 42(2)(b) further prohibits paralegals from giving legal advice with respect to the laws of Ontario.

The generality of the words used in the by-law and their broad application has strangled the paralegal profession.  As many as half of the paralegals practicing in Ontario were put out of business when the Access to Justice Act granting the Law Society of Upper Canada jurisdiction over paralegals was approved in 2007.

The arguments advanced by the Law Society to justify the takeover; namely, quality assurance, is specious.  Judges routinely have the right to control their own courtrooms and determine who should appear before them.  Further, there were very few, if any, complaints about competence involving paralegals drafting incorporations and uncontested divorces before the LSUC takeover.

As paralegals can only indirectly vote for two members of LSUC Convocation out of the overwhelming majority of lawyers, they have no way of effectively changing the by-laws. This was apparent from a motion brought by 11 paralegals to the Annual General Meeting of the Law Society of Upper Canada on May 5, 2010 to expand their scope of practice.  The motion was withdrawn because of hostility that it generated from the LSUC and the fact that paralegals had no right to vote at the Annual General Meeting to support their own resolution.

Paralegals believe that they are clearly in an adversarial process as the Law Society takeover of their profession eliminates competition and enhances the work available to many smaller law firms that had routinely called over decades for restricting paralegals’ scope of practice to eliminate competition.  The fox now makes the rules for the chickenhouse.

This drive by the Law Society against permitting paralegals to compete against lawyers is further verified by its failure since 2007 to expand their scope of practice.  This is so notwithstanding the fact that paralegals can take the pressure off the public caused by soaring legal fees, now even increased further by the imposition of the HST on lawyers’ fees.  Although the Law Society has a duty to protect the public interest and to act in a timely, open and efficient manner, the Law Society has decided not to take any steps whatever to facilitate access to justice beyond the minority who can now afford to hire lawyers to represent them in court proceedings.  The number of undefended claims is soaring in the Toronto region and the family and criminal courts are bursting at the seams with self-represented persons who cannot meet the ridiculously stringent financial means test of the already anorexic Legal Aid Ontario.

The Law Society’s conduct constitutes an abuse of the dominance provisions of the Competition Act.  In particular, section 78(1)(b) defines an anti-competitive act as an acquisition by a supplier of a customer who would otherwise be available to a competitor of the supplier, or acquisition by a customer of a supplier who would otherwise be available to a competitor of a customer, for the purpose of impeding or preventing the competitor’s entry into, or eliminating the competitor from a market.  This is exactly what the LSUC has done.

Now that the legislation is coming up for a promised review by the Ontario government which was agreed to five years after its proclamation in 2007, I respectfully request that the Competition Bureau call upon the Law Society to account for its efforts to monopolize the delivery of legal services and advice to members of the public solely by lawyers.  The Law Society has still failed after decades to document any abuse in any area of the law that justified restricting the scope of practice of paralegals to give advice and perform a variety of legal tasks for an amount much less then charged by lawyers.  Three independent commissions, one led by a respected Judge Peter Cory, have made this point repeatedly over the last twenty years.  The community colleges are now churning out paralegal candidates who are aghast and dismayed that they are an internal disenfranchised colony of the Law Society.

I am aware that the Competition Bureau recently carried out a general investigation of self-governing professions and has taken bold initiatives with respect to protecting the public interest with respect to the Canadian Real Estate Association’s monopoly over MLS listings. What is needed now is a full and thorough investigation of the Law Society’s apparent breach of section 79 of the Competition Act and a report back to the public regarding its investigation of the matter and a plan of action.

Please let me hear from you.

Yours truly,

Harry Kopyto

Deputy CommissionerOf Competition for Civil Matters

Deputy Commissioner

Of Competition for Civil Matters

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