Harry Kopyto will be appearing before three Judges of the highest Court in Ontario on Monday November 26, 2012 at 10:30 a.m. at Osgoode Hall (Queen Street entrance). Why is he there? To try to overturn a lower court decision dismissing his claim challenging the lawyers’ monopoly created by the takeover of paralegals by the Law Society of Upper Canada (LSUC).
Kopyto’s Case Caught in Catch-22
On July 11, 2012, Justice Darla A. Wilson of the Superior Court of Justice dismissed the claim which Kopyto launched after the three-person Law Society Panel determining his right to continue working as a paralegal refused to entertain his challenge to the takeover law. This near-death blow to the paralegal profession was camouflaged as a By-law (No. 4) of the Law Society Act. Panel chairperson Margot Blight ducked the issue. She ruled that the Panel was “institutionally incompetent” to deal with this challenge. Ms. Blight directed Kopyto to bring his action in a court of original jurisdiction; that is, the Superior Court. When he did so, the action was dismissed by Justice Darla Wilson who said that she did not have jurisdiction to rule on his case either. So who can decide? Nooooooobody! Catch 22, or what?
The takeover remains a hot political potato. Paralegals, who feel colonized by their competitors, hate the takeover. The Law Society has attempted to validate the takeover in a report that contained a phony self-serving survey which it filed with the Ontario legislature earlier this year. The survey was made as part of the LSUC’s obligation to prepare a five-year report on how the takeover has worked out. With carefully picked respondents and loaded questions, the survey shamelessly rubber-stamped the Law Society’s takeover. Who would have expected anything different from the mouthpiece for the corporate legal establishment?
By-law 4 was buried in an omnibus bill shoved through at lightening speed in the Ontario legislature in 2006. Both the Liberals and Conservatives voted unanimously for it. On the other side were the NDP, the labour movement, paralegals and women’s groups. The near universal opposition to the takeover during legislative committee hearings was based on the fact that By-law 4 blocked paralegals from working in vast areas where they had previously competed with lawyers, thereby driving the cost of legal services even higher. The establishment politicians up the street from Osgoode Hall don’t seem to care about the 99% when their kissing cousins at Osgoode Hall come knocking on their door.
Talk About Being Slick
With an uncanny knack for deceiving the public of their true intent, the cloistered bigwigs who run the Law Society in the interest of the 1% against the 99% ironically referred to the takeover legislation as “The Access to Justice Act”. Talk about being slick!
The decision of Judge Wilson reflected her unrestrained prejudice against paralegal competitors of the legal profession. It was to be expected from someone closely associated before her appointment with the Ontario Bar Association which speaks out for the financial and other interests of small law firms. These firms saw much of their work leach out to their more affordable paralegal competitors over the decades. The LSUC waffled over the issue for twenty-five years. Three different authorized Commissions strongly advised against the takeover. However, by the mid-2000s, the Benchers who run the Law Society decided to spay their paralegal competitors. Ouch!
In her judgment, Wilson ruled that the standards of the Competition Act could not be relied on to show that it was against the public interest for a profession or business to abuse its dominant position in the marketplace or to engage in anti-competitive acts. Everyone else has to obey the law except the Law Society. Please, give us a break…
Wilson gave no weight to Harry’s argument that the denial of access to justice as a result of the monopoly created by the challenged By-law could invalidate it. She even concluded that the courts could not prevent the Law Society from creating a monopoly for lawyers for the delivery of legal services even if it meant denying reasonable access to affordable justice.
Wilson also ruled that as long as the Law Society operated within the strictures of the Access to Justice Act, its conduct was unassailable. But she completely ignored that Harry was challenging the constitutional validity of the Access to Justice Act itself. If the law is bad, how can the Law Society’s enforcement of it be good?
Harry’s claim against the Law Society also argues that the Law Society acted in bad faith because of its conflict of interest as the elected voice of lawyers where paralegals are not even allowed the right to vote. This has been most apparent in the severe restrictions that the LSUC imposed on the scope of work that paralegals are allowed to do which flies in the face of the Society’s mandate to promote access to justice and to represent the public interest. The By-law cut to the bone what paralegals were permitted to do—no corporate work, no real estate, no family law, no serious motor vehicle cases and no criminal cases punishable by more than six months in prison. It seems that lawyers’ narrow financial interests trump the public interest in the eyes of the legal profession’s oligarchs.
B.C. Case Sets Powerful Precedent for Kopyto’s Claim
The Supreme Court of Canada has hesitated to articulate the principle that access to legal services should be recognized as a fundamental constitutional right (just costs too much, as if justice had a price!). While general access to legal services has not been acknowledged as fundamental to the Canadian constitution, a recent decision of the British Columbia Supreme Court in the case of Vilardell v Dunham marks a powerful blow in that direction. Harry hopes to catch some of that wind in his sails when he appears before the Ontario Court of Appeal on November 26th.
In his decision, former federal cabinet minister Mark McQuaigan, now sitting as a judge of the British Columbia Supreme Court, ruled earlier this year that a constitutional principle existed which requires provinces to provide adequately to ensure that access to justice is available to the public. He disallowed a deterring rental fee imposed on litigants in the B.C. Supreme Court if their cases lasted more than a few days. McQuaigan abolished this intimidating law. In his momentous and brilliantly reasoned 178-page ruling that took two years to write, he found that provinces did not have the legal authority to impair the courts’ constitutional obligation to fulfill their proper role in a democracy.
Relying on the Vilardell case, Kopyto is arguing that By-law 4 of the Law Society Act constitutes a similarly unjustified barrier to access to justice. His central point is that the granting of regulatory authority to lawyers who are in a conflict of interest with their competitors has resulted in a monopoly that unreasonably impairs such access. The costs of legal services charged by lawyers are already astronomical. Eliminating their affordable competition in critical and under-serviced areas of legal practice is not in the public interest.
Emperor Has No Clothes
Kopyto’s claim was struck by Justice Wilson before it had a chance to get off the ground. Kopyto’s claim defends the right to maintain the courts as an institution where “ordinary” people who are not part of the 1%—that is, the 99%—can resolve fundamental issues both with respect to the government’s laws as well as among each other. It is a mockery of justice to create a court system and then prevent the vast majority from accessing it. The emperor has no clothes. All it takes is for ordinary citizens to witness it and let it be known.
Everyone is urged to attend the hearing at the Ontario Court of Appeal on Monday November 26, 2012 at 10:30 a.m., main Queen Street entrance, Osgoode Hall, in downtown Toronto.