March 2, 2009
In 2007, the Ontario government elected to transfer the governance of paralegals to the Law Society in the Access to Justice Act. That legislation introduced a requirement for non-lawyers who provide ‘legal services’ to be licensed, and serious fines for people who do so without that license.
‘Legal services’ is defined broadly in the Law Society Act to include “conduct that involves the application of legal principles and judgment with regard to the circumstances or objectives of a person.” Thus, as defined, ‘legal services’ seems to catch a lot of what HR and industrial relations managers do all the time — apply and give advice about the application of employment related statutes and the common law of employment.
However, exceptions have been carved out. One applies to union representatives, who spend a lot of their time litigating legal disputes, such as labour arbitrations, and giving legal advice. Another exception catches a person who is a Member of the HRPA and who whose profession or occupation is not the provision of legal services or the practice of law, who provides the legal services only occasionally, and who provides the legal services as ancillary to the carrying on of her or his profession or occupation. So that exempts many, but not all, HR professionals. If a person is employed in HR and does not meet that exemption description, then they likely are required to register as a paralegal, or else face stiff fines for giving advice on employment law issues.
Here’s a nice description of the issue in an opinion from the law firm Filion Wakely.
Does this mean that HR/IR professionals–including consultants at companies like Mercer, etc.–who are not members of the HRPA must obtain a paralegal license before they can engage in activities that require knowledge and interpretations of employment legislation and common law principles? Looks that way, doesn’t it?