The Law Society of Upper Canada (LSUC) grabbed the puck and is skating down the ice to score against Harry big time. Their power play is fixed on Harry’s motion to nix the takeover of paralegals by lawyers. They want to block it from even being heard. Dates for their motion to strike Harry’s challenge have now been set for Wednesday April 27th and Monday, May 9th, 2011,9:30 am at Osgoode Hall
The same Panel of three, headed by Margot Blight, that has dealt with Harry’s disclosure motions, has been appointed by the backroom boys at Osgoode Hall to rule on the outcome of the Big Game, set to be heard over two days. The Panel will then be bound to deal with the merits of the good character hearing that Harry has to pass to continue his paralegal practice.
Harry’s motion describes the takeover law (named the Access to Justice Act by someone with a strange sense of humour) as anti-competitive. Harry says it amounts to an abuse of a dominant position. One profession has used the law to eliminate its competition. He accuses the law of making it harder to access justice. Lawyers who run the LSUC’s monopoly are in a conflict of interest. They have cut to the bone the scope of work that paralegals are allowed to do. This protects their turf from more affordable paralegals.
The LSUC says that Harry’s challenge to the law relates to a charge under the federal Competition Act. It is arguing that, therefore, Harry is in the wrong forum. Even if the LSUC were in breach of the Act, it cunningly argues that the Ontario Legislature gave it the authority to regulate as it wishes. And presto, the LSUC seeks dismissal of Harry’s motion to overturn the law without a full hearing and without the disclosure he needs to flesh out his challenge.
Kopyto’s defence is simple. He is not asking for the LSUC to be prosecuted under the federal Competition Act. He intends to rely on the Act as a relevant factor in assessing the LSUC’s conduct. If the LSUC takeover falls below the standards set by the Competition Act, then the Act itself is evidence of inappropriate conduct by the LSUC. The fact that the Act is federal does not mean that the standards it sets can be ignored by a provincial body. After all, the Charter of Rights is also a federal law.
Harry also charges the LSUC with bad faith in cutting down the scope of practice of paralegals to promote lawyers’ monopoly over legal services. The result? A reduction in access to justice, in competition and in choice. This clashes with the law’s purpose, with the LSUC’s mandate to represent the public interest and with the basic constitutional right to access to justice. Because of these flaws, Harry’s prosecution under the LSUC bylaws is unlawful.
The aggressive attack on Harry’s right to bring this motion shows how much the LSUC wants to shut the game down without allowing Harry to score his constitutional goal. However, the LSUC is skating on thin ice. Outside the tightly knit cohesive team of elite lawyers, the takeover is seen as a lawyers’ money grab that worsens the crisis of unaffordability that plagues Canada’s judicial system. The LSUC is well aware of the near universal opposition to the hostile takeover by paralegals, women’s groups and social activists. That’s why it wants to shut down Harry’s motion without a full hearing.
The LSUC also wants to block Harry’s outstanding demands for disclosure. They want to hide the evidence that compelled two different esteemed commissions to oppose the LSUC takeover. They want to hide the lack of evidence behind the tired manufactured excuses for the takeover. (You know — that paralegals were all crooks, they were incompetent, they really weren’t more affordable than lawyers, we already had the regulatory structure, etc.) They know they have a very fragile fig leaf covering the nakedness of their self-interest. When the Access to Justice Act was passed by their kissy-kissy cousins in the Liberal and Conservative Parties up the street from Osgoode Hall, virtually every non-lawyer group spoke out against this egregious legislation during more than a dozen legislative committee hearing days.
Kopyto’s motion brings the LSUC back to account for its original sin. And it threatens to unravel the skein of deception and spin by requiring the LSUC to disclose evidence that will ultimately reveal that the LSUC paid lip service to the public interest all the while giving full service to its own self-interest. The disclosure will show the law was passed without evidence to justify it and against evidence that its passage would restrict access to the courts, which is a constitutional right. While this is an open secret among the LSUC mandarins, they still are queasy about allowing a Law Society panel of three to publicly review their conduct at the behest of Kopyto and pass judgment on it. Especially when the case to overturn the law is so strong. Especially when the courts are teeming with self-represented litigants caught in the fine mesh of the law. Especially as the law is going to a full legislative review next year.
The LSUC motion is designed to silence Harry, to derail the central plank in his fight to continue working as a paralegal and to thwart his defence of the real public interest in affordable justice against lawyers’ monopoly stranglehold on the price of legal work. The terminator motion, already filed by the LSUC in early February, had been postponed to be heard by an unnamed panel (now revealed to be the same three panelists) that will agree to listen to Harry’s application to be grandparented on its merits. The LSUC has now gotten all its duckies in a row and is racing to score a decisive goal.
Will the Blight panel hearing this motion be truly fair, unbiased and independent? If so, it will be one for the books because the Old Boys’ Club is still running the show. That’s why public presence and oversight will continue to be needed to neutralize the institutional advantage that the LSUC has as master of the administration of its discipline process. In short, the Law Society prosecutors are playing on home ice and it is often the case that panelists act as their cheering section. Harry needs us there to make sure they don’t bodycheck him into the boards. Without the commitment of Harry’s supporters thus far, it is unlikely that Harry would have been allowed to stay in the game to score the points that he has. On April 27th, when the time comes for the next faceoff, Harry will need us on his side.