Kopyto has taken his battle to overturn the takeover of paralegals by lawyers to the Superior Court in Toronto. The Law Society has already brought a motion to dismiss his claim. The motion will be heard at the Superior Court facilities at 393 University Avenue (near Dundas Street) at 10:00 a.m. on Wednesday July 4, 2012.
The stakes are high. Kopyto has asked the Superior Court to rule on the issues he had originally raised before the Law Society Panel judging his character to see if he should continue to work as a paralegal. That Panel, chaired by Margot Blight, refused to rule on Kopyto’s challenge to By-law 4 of the Law Society Act implementing the takeover. Kopyto argued before the Panel that the takeover of paralegals by lawyers, through the Law Society, immediately cut down paralegals’ scope of permissible practice which drove the cost of legal services higher. This could not help but impair access to justice in breach of the Law Society’s own mandate. Paralegals are all too aware that giving your competitors the power to cut your throat is never a good idea. Therefore, the takeover should be nixed because it impaired a constitutional principle by blocking competitive pricing of legal services.
Blight slyly ruled that the Law Society Hearing Panel was not “institutionally competent” to deal with such a complex issue. Harry has now brought his claim to “a court of original jurisdiction” as directed by Blight. Surprise! Surprise! Now, the Law Society is trying to snuff it out quickly before it spreads despite the fact that Harry was just following Blight’s direction.
Vilardell Decision Big Boost to Judicial Access
If Harry is allowed to proceed with his case in the Superior Court on July 4th, the legality of the LSUC’s takeover of paralegals will be decided for the first time by someone not under direct or indirect control of the Law Society administration. While far from a sympathetic milieu, the courts owe an obligation to provide an appearance of fairness of the legal system as a whole—Blight and the LSUC do not. The financial interests of the solo and small law firms who wanted to, and succeeded in, neutering their paralegal competitors are not foremost in the courts’ mind. Judges know that access to justice is a fundamental constitutional principle. As if on cue, Judge Mark McKeown of British Columbia’s Superior Court on May 22, 2012 invalidated a British Columbia law imposing a courtroom rent charge that escalated to over $600 a day on litigants. That judgment, Vilardell v Dunham, marks a powerful blow in favour of judicial access. (An appeal was announced by the B.C. government on May 31st). That decision’s legal vibrations have yet to be fully felt across the country where it is beginning to attract widespread attention among lawyers.
If Kopyto is going to benefit from that decision in Ontario, he will first have to survive the Law Society’s assault on his claim. The two Law Society counsel (why does Harry always have to face two lawyers?) are asserting numerous grounds for their dismissal motion. These grounds include arguing that his claim is not detailed enough and that there is no constitutional right to general access to the judicial system. Yet this is precisely the opposite of the highly detailed and strongly worded 178-page decision of Justice Mark McKeown which was supported by the Canadian Bar Association and the Trial Lawyers Association.
You Never Put Your Foot in the Same River Twice
The Vilardell case involved interventions and briefs from the B.C. Attorney General, the B.C. Bar Association and the B.C. Trial Lawyers Association. Notably, the B.C. Law Society did not participate despite an invitation from Justice McKeown. The law generated by this decision threatens to demolish the Law Society of Upper Canada’s rationale for the takeover. McKeown’s decision, which took two years to write, is forcing the B.C. government to spend millions on the judicial system that it wanted to pass off as user fees.
At least, the B.C. government was honest about wanting to discourage litigants from judicial access by creating financial barriers. The Law Society in Ontario is more coy. It justified the takeover by arguing that it already had the regulatory infrastructure to govern paralegals—why start from scratch? However, its hidden agenda, of course, was not to save the Ontario government public funds but to expand the LSUC Empire to colonize its competitors. The fact that lawyers compete with paralegals for clients thereby placing the Law Society in a conflict of interest was a minor detail that no one commented on.
Kopyto is fond of quoting U.S. Chief Supreme Court Judge Benjamin Cardozo, who said “You never put your foot in the same river twice.” He was describing the constant changing flow of the law. The Vilardell case helps change the direction of its flow. The decision punctured a hole in judicial hesitation to direct a government on how to spend public funds. His decision is especially remarkable during a time of fierce attacks on public services and on the allegedly “liberal” and “activist” courts. It shows that, with public support, the judicial system can respond, especially when an issue as fundamental to its image as equal access to judicial rights is at stake.
A strong and confident judge always deals with his/her cases on the merits. A weak judge hides behind technicalities.
The only safeguard against weak judges is public scrutiny. Public presence at the July 4th hearing will assist the court to focus on the substantial issues at stake.