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Representation - Paralegal and Lay Representatives - General (2). Borok v. Primmum Insurance Company
In Borok v. Primmum Insurance Company (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of an application to approve "a proposed settlement for a party under disability pursuant to Rule 7.08 of the Rules of Civil Procedure" - here, where the settlement was wrt a SABS auto insurance claim.
The court considers the authority of a paralegal to act in settlements for parties under disability, here a SABS auto insurance settlement:b. A paralegal can negotiate a resolution of a claimant’s SABS claims
[21] The application judge erred in finding that a lawyer must negotiate the proposed settlement for the party under disability and file an affidavit confirming this. The application judge found he “could not approve the settlement without requiring Mr. Borok to renegotiate his settlement with a lawyer acting for him.” Rule 7 does not require a lawyer to participate in the settlement negotiations for a party under disability; it simply requires that as part of the material filed in support of the approval motion or application, an affidavit of solicitor acting for the litigation guardian be filed. This affidavit must set out the lawyer’s position in respect of the settlement. The application judge’s finding in this regard was incorrect.
[22] There is no prohibition against paralegals who are licensed by the Law Society of Ontario dealing with SABS claims on behalf of clients who are under a disability: Insurance Act, s. 398; Automobile Insurance regulation, s. 18. While paralegals are prohibited from dealing with settlements of SABS claims for parties who have been catastrophically impaired, this case did not involve a claimant who had been designated catastrophically impaired: Law Society of Ontario, By-Law 4, ss. 6(1)-(2); see also Charles (Litigation Guardian of) v. Gore Mutual Insurance Company, 2023 ONSC 7053 at paras. 2, 5.
[23] Regardless of whether a paralegal or a lawyer negotiated the proposed settlement, the approval materials must contain an affidavit from the solicitor who has been retained and who has reviewed all of the circumstances giving rise to the action, including liability issues and damages issues. The solicitor must provide an opinion on whether the proposed settlement is in the best interests of the party under disability and the reasons for the opinion. In this way, the affidavit enables the court to meaningfully assess the reasonableness of the settlement: Spicer v. Wawanesa Mutual Insurance Company, 2023 ONSC 3221, 35 C.C.L.I. (6th) 257, at paras. 11-15. . Caruso v. Law Society of Ontario [IMPORTANT]
In Caruso v. Law Society of Ontario (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against the dismissal of an application "for declarations that “licensed paralegals in Ontario are authorized to provide immigration legal services in accordance with section 91(2) of [IRPA], including assisting clients in preparing and completing applications under [IRPA] and any of [its] associated Regulations”.
Here the court usefully and thoroughly sets out the essence of Ontario's LSO paralegal regulation regime regarding permissible activities, including the intricately-delegated range of activities they may engage in:1. PROVINCIAL PARALEGAL LEGISLATION
[6] The LSO has been regulating lawyers in Ontario since 1797: An Act for the better regulating the Practice of the Law, S.U.C. 1797 (37 Geo. III), c. XIII. Only lawyers are licensed to practice law, but commencing in 2007, the Law Society Act was amended to permit paralegals to provide “legal services” in Ontario if licensed by the LSO to do so based on their training.
[7] “Legal services” are broadly defined in s. 1(5) of the Law Society Act as “[engaging] in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.” Together, ss. 1(6) and (7) provide a non-exhaustive but extensive list of such activities, including:. “[giving] a person advice with respect to ... legal interests, rights and responsibilities”;
. negotiating such interests, rights or responsibilities;
. selecting, drafting, completing or revising a document “that affects … legal interests, rights or responsibilities” or that is “for use in proceedings before an adjudicative body”; and
. “representing a person in a proceeding before an adjudicative body". [8] When the Act is read as a whole, it is evident ss. 1(5)-(7) were not enacted to describe the legal services that paralegals are permitted to provide. Section 26.1(3) of the Law Society Act provides that “[n]o licensee shall practice law in Ontario or provide legal services in Ontario except to the extent permitted by the licensee’s licence.” Paralegals can therefore provide only those legal services authorized by their P1 class licences. As I will explain, that authority is narrower than the broad range of services described in ss. 1(5)-(7). The definition of legal services in ss. 1(5)-(7) is as broad as it is to identify activities that unlicensed persons are prohibited from providing under s. 26.1(1), which provides, that “no person, other than a licensee who is not suspended, shall practice law in Ontario or provide legal services in Ontario.”[3]
[9] The Law Society Act does not directly describe the scope of authority that a P1 class paralegal licence confers. Instead, the statute delegates to Convocation, the LSO’s governing body, the authority to pass by-laws to develop classes of licences and to define the scope of authority that they confer: ss. 27(1) and 62(0.1)4. Section 6(2) of By-Law 4 describes the authority that has been given to licensed paralegals relating to legal services. It is necessary to set s. 6(2) out in its entirety:6.(2) Subject to any terms, conditions, limitations or restrictions imposed on the class of licence or on the licensee and subject to any order made under the Act, a licensee who holds a Class P1 licence is authorized to do any of the following:
1. Give a party advice on his, her or its legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.
2. Represent a party before,
i. in the case of a proceeding in the Small Claims Court, before the Small Claims Court,
ii. in the case of a proceeding under the Provincial Offences Act, before the Ontario Court of Justice,
iii. in the case of a proceeding under the Criminal Code, before a summary conviction court,
iv. in the case of a proceeding before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, before the tribunal, and
v. in the case of a proceeding before a person dealing with a claim or a matter related to a claim, before the person.
3. Anything mentioned in subsection 1 (7) of the Act, provided the activity is required by the rules of procedure governing a proceeding.
4. Select, draft, complete or revise, or assist in the selection, drafting, completion or revision of, a document for use in a proceeding.
5. Negotiate a party’s legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.
6. Select, draft, complete or revise, or assist in the selection, drafting, completion or revision of, a document that affects a party’s legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding. [10] Note that each of the authorized activities relate to a “proceeding” before designated adjudicative bodies, including “a tribunal established under an ... Act of Parliament”, a point I will return to below. Section 6(1) of By-Law 4 defines the term “proceeding” as follows:“proceeding” means a proceeding or intended proceeding,
(a) in the Small Claims Court,
(b) in the Ontario Court of Justice under the Provincial Offences Act,
(c) in a summary conviction court under the Criminal Code (Canada),
(i) where under the Criminal Code (Canada) immediately before the amendment day an accused was permitted to appear or examine or cross-examine witnesses by agent, or
(ii) in respect of an offence under subsection 320.13 (1), subsection 320.16 (1), section 320.17 or subsection 320.18 (1) of the Criminal Code (Canada),
(d) before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, or
(e) before a person dealing with a claim or a matter related to a claim, including a mediator, a person performing an evaluation, an arbitrator or the Director acting under section 280, 280.1, 282 or 283 or 284, respectively, of the Insurance Act. The court then [at paras 25-66] applies a statutory interpretation analysis to By-Law 4 ['Licensing'] of the Law Society of Ontario, here particularly s.6(2) ['Scope of activities - Class P1 (paralegals) - Activities authorized'], delving in the history of paralegal regulation in Ontario:1. The grammatical and ordinary meaning
[25] When read in their entire context and in their grammatical and ordinary sense, the words in s. 6(2) of By-Law 4 (reproduced above in para. 9) identify a closed list of legal services that paralegals are “authorized to do”. As I noted when introducing s. 6(2), all the described legal services are linked to “a proceeding”. Even the provision authorizing giving “a party advice on his, her or its legal interests, rights or responsibilities” is confined to advice “with respect to a proceeding or the subject matter of a proceeding”. No authority is conferred on paralegals to provide advice in any other context. Meanwhile, only ss. 6(2)4 and (2)6 provide authority for paralegals to “[s]elect, draft, complete or revise, or assist in the selection, drafting, completion or revision” of documents, and both provisions confine those activities to “a proceeding”. Section 6(2)4 authorizes these activities relating only to “a document for use in a proceeding” and s. 6(2)6 only to documents “that affect a party’s legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding” (emphasis added). None of the sections defining the authority of paralegals authorize legal services relating to documents in any other context.
....
[27] Mr. Caruso points out, correctly, that IRPA is an “Act of Parliament” thereby conferring on paralegals the authority to give advice, represent parties, and provide legal services relating to the selection, drafting, completion or revision of documents relating to proceedings before tribunals established under IRPA. Where he goes wrong, in my view, is in arguing that when an application or document is submitted to the IRCC or the CBSA, or where advice is given to clients on IRCC and CBSA matters, those legal services are being provided for a “proceeding” or at least an “intended proceeding” before an IRPA “tribunal”.
[28] First, it is plain when read in context that the term “proceeding” is used in its grammatical and ordinary sense, to refer to matters that are before adjudicative bodies, as opposed to administrative decision makers. As the Divisional Court noted, the term “proceeding” is generally understood in the legal profession as a hearing before an adjudicative body. In my view, the Divisional Court did not err in citing Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 to illustrate this point. That decision held that the decision made by the immigration officer in that case — which dealt with an exemption on humanitarian and compassionate grounds — was not an adjudicative process requiring an oral hearing. Contrary to Mr. Caruso’s submission, the fact that Baker referred to an adjudicative “process” rather than an “adjudicative body”, the term defined in s. 1(1) of the Law Society Act, does not make this point inapposite. Adjudicative bodies use adjudicative processes and an immigration officer making an administrative decision does not do so. The submission and processing of documents is not a “proceeding”.
[29] The context in which the term “proceeding” appears in the legislation drives this point home. As the Divisional Court pointed out, when the term “proceeding” is used in the enabling legislation, the Law Society Act, it appears in the phrase “a proceeding before an adjudicative body”: ss. 1(6)2(vii) and (6)3. Moreover, all the proceedings that By-Law 4 particularizes are proceedings before adjudicative bodies in which the parties make submissions during a hearing, including Small Claims Court matters (s. 6(1)(a)); Provincial Offences Act matters (s. 6(1)(b)); summary conviction matters (s. 6(1)(c)), and proceedings “before a person dealing with a claim or a matter related to a claim”, which are adjudicated or mediated based on submissions (s. 6(1)(e)). On its grammatical and ordinary meaning, understood in context, the term “proceeding” refers to hearings that are adjudicated.
....
[44] The text of a piece of legislation is typically the best indication of its purpose, as it will capture the means chosen to achieve those objectives: CISSS A, at para. 24. For the reasons already provided, the text of By-Law 4 supports the LSO’s position that the purpose of this subordinate legislation is to enable paralegals to perform advocacy work in lower courts or tribunals (but not superior courts), while continuing to prohibit them from doing what has customarily been referred to as solicitors’ work.
....
[47] This review must begin with the fact that non-lawyers have been prohibited from engaging in the practice of law since the LSO was created in 1797 to regulate the profession: An Act for the better regulating the Practice of the Law. As Blair J.A. described in Pointts, only lawyers were permitted to provide barristers’ work and solicitors’ work for a fee.
[48] As successive provisions in the Law Society Act and its predecessor statutes acknowledge, the general prohibition against non-lawyers engaging in the practice of law has long been subject to exceptions that apply where the law otherwise permits non-lawyers to do so. It appears that no statutory exceptions have been created to permit non-lawyers to do solicitors’ work. Non-lawyers can do limited solicitors’ work, but only under the direction and supervision of lawyers, pursuant to the LSO’s Rules of Professional Conduct: Law Society of Ontario, Rules of Professional Conduct (Toronto: LSO, 2000), r. 6.1-1, commentaries 1, 1.1.
[49] In contrast, a much broader range of exceptions have been developed permitting agents to act as advocates for others. Over time, provisions were enacted in numerous statutes permitting “agents” to appear in lower courts and tribunals and to litigate on behalf of others. Blair J.A. listed many of these provisions in Pointts, at pp. 165-68. The provisions he listed permit non-lawyers to provide representation in landlord tenant matters; small claims court matters; litigation relating to low value construction liens; coroner’s inquests; proceedings before administrative tribunals; and provincial offence matters.
[50] The question remained open as to whether non-lawyers working as agents pursuant to statutory exceptions could receive a fee for their services. The decision in Pointts confirmed that non-lawyers could set up businesses to provide agency representation for a fee in traffic matters, pursuant to the agency authority provided in then s. 51 of the Provincial Offences Act, 1980. C. 400. Blair J.A. concluded that this would not contravene the prohibition on acting as a barrister in then s. 50 of the Law Society Act, R.S.O. 1980, c. 233, or the prohibition against non-lawyers collecting fees in then s. 1 of the Solicitor’s Act, R.S.O. 1980. c. 478.
[51] Although legal analysis drove the outcome in Pointts, the public-interest implications of this decision were significant, given that its reasoning could apply to all statutorily authorized agency work. It raised the spectre of unregulated paid agents doing legal work relating to a multitude of matters. Even in the decision itself Blair J.A. noted that this was becoming an increasingly “common practice” before a variety of tribunals, and it clearly troubled him: Pointts, at pp. 168-69. He recommended that the Legislature address the issue: Pointts, at p. 178.
[52] Blair J.A. was not the first to raise this concern. By October 1986, Convocation had already prepared and forwarded a submission to the Attorney General of Ontario on the issue: Law Society of Upper Canada, A Submission to the Attorney General of Ontario on the Provision of Legal Services by Unsupervised Persons (Toronto: Law Society of Upper Canada, 1986). By 1988, the Government of Ontario commissioned Professor Ron Ianni to prepare a report to examine how the public interest could best be protected, which became the Report of the Task Force on Paralegals (the “Ianni Report”). The Law Society promptly prepared a response, entitled Interim Report on the Special Committee on Paralegals and Access to Legal Services (Toronto: Law Society of Upper Canada, 1992) (the “Rock Report”). Both documents called for regulation of legal work done by non-lawyers, but nothing was done.
[53] Several years later, a case involving an ineffective assistance appeal relating to work done by an unregulated agent in a criminal matter came before this court, in R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506 (C.A.). In its decision, “The Court” again called for legislative action, cautioning at para. 88 that having unregulated representation by those without legal training in difficult criminal proceedings “invites miscarriages of justice.”
[54] In the wake of the Romanowicz decision the Law Society established a task force that released a final report in March 2000: Law Society of Upper Canada, Paralegal Task Force Report (Toronto: Law Society of Upper Canada, 2000). Meanwhile, the Ontario government commissioned another review of the issue, this time by the Honourable Peter Cory. The commissioned review led to the publication, also in 2000, of A Framework for Regulating Paralegal Practice in Ontario (Toronto: Ontario Ministry of the Attorney General, 2000) (the “Cory Report”). The Law Society promptly published a response to the Cory Report in July 2000: An Analysis of a Framework for Regulating Paralegal Practice in Ontario (Ontario: Law Society of Upper Canada, 2000).
[55] All the bodies that were called upon to examine this issue agreed that legal services provided by non-lawyers should be undertaken only by a regulated paralegal branch of the legal profession. However, they disagreed about the scope of the work that paralegals should be permitted to undertake. The Ianni Report recommended a significant change to the status quo of confining non-lawyers to advocacy work by recommending that regulated paralegals be permitted to undertake a significant range of solicitors’ work. In contrast, the Rock Report wanted the scope of paralegal practice to be generally restricted to advocacy work. For its part, the Cory Report supported paralegals doing some solicitors’ work but did not go as far as the Ianni Report and did not recommend the involvement of paralegals in immigration matters beyond IRB hearings. In all its reports and responses, the Law Society favoured the status quo by confining paralegals to agency or advocacy work.
[56] In April 2002, the Law Society joined with other stakeholders to try to resolve the deeply divisive issues relating to the scope of practice for paralegals. The working group published A Consultation Document on a Proposed Regulatory Framework in April 2002, supporting the creation of two types of paralegals: advocacy paralegals who would conduct the kind of agency work that was then being done by unregulated agents, and non-advocacy paralegals who would work in affiliation with lawyers.
[57] The Law Society subsequently struck the Task Force on Paralegal Regulation which issued a final Report to Convocation in September 2004, rejecting non-advocacy work for paralegals. It offered several explanations for its position. First, the Task Force concluded that access to justice considerations supported paralegal involvement in litigation because evidence confirmed that there were litigants who were unable to afford litigation. But it concluded that access to justice considerations did not support paralegal involvement in solicitors’ work as there was “no evidence of a scarcity of solicitors” (the “access to justice rationale”). Second, the Task Force also suggested that advocacy work could be safely performed by paralegals given the opportunity for tribunals to exercise oversight of the work that was being done before them, a safeguard that is not available for solicitors’ work (the “oversight rationale”). Finally, it is apparent from its report that the Task Force recommendation was also driven by the reality that stakeholders could not agree on the scope of the work that non-lawyers should be permitted to undertake. In its view, confining regulated non-lawyers to the scope of agency work already being done by non-lawyers would avoid delay in trying to reach an elusive consensus, and bring a timely end to unregulated legal work by non-lawyers (the “pragmatic rationale”).
[58] When Bill 14, An Act to promote access to justice by amending or repealing various Acts and by enacting the Legislation Act, 2005[10] was being studied, then LSO Treasurer Gavin McKenzie appeared before the Standing Committee on Justice Policy and made clear that, consistent with its Task Force recommendation, the focus of LSO regulation would be on paralegals as advocates, not paralegals performing solicitors’ work: Ontario, Legislative Assembly, Official Reports of Debates (Hansard), 38-2 (26 April 2006), at JP-191. When Bill 14 was enacted as the Access to Justice Act, 2006, and proclaimed in force, it amended the Law Society Act and related legislation to impose regulation on legal work done by non-lawyers, but it delegated to the LSO the task of defining the scope of the work that would be allowed.
[59] The resulting draft of By-Law 4 was then placed before Convocation for its consideration. Bencher Paul Dray explained that it “basically adheres to the draft report of 2004”, which had proposed restricting paralegals to advocacy work: Law Society of Upper Canada, Convocation, Public Session (Transcript) (29 March 2007), at p. 187. He also confirmed that “paralegals” that were doing solicitors’ work such as preparing documents would not be licensed to provide legal services and would have to work under the supervision of a lawyer: Law Society of Upper Canada, Convocation, Public Session (Transcript) (26 April 2007) at pp. 25-29. By-Law 4 was adopted by Convocation on May 1, 2007, in much the same form as the draft by-law.
[60] This history confirms that By-Law 4 was intended by Convocation to preserve the distinction between advocacy work, which would be permitted by licensed paralegals, and solicitors’ work which would not be permitted. I therefore agree with the conclusions that the Divisional Court came to in this regard.
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