Canada: Paralegal Rights Of Appearance At Arbitration In Ontario

Overview

Can a paralegal represent a party in an arbitration pursuant to Ontario's Arbitration Act, 1991 (the "Arbitration Act")?

It appears the answer to this question is yes as the by-laws pursuant to the Law Society Act which determine a paralegal's scope of practice include the right to appear before tribunals established by an Act of the Legislature of Ontario and an arbitral tribunal falls into this category as it is empowered by the Arbitrations Act.

Furthermore, it appears that paralegals can represents parties where more than $25,000 is at stake as a monetary limit of $25,000 is specific to Small Claims Court matters.

There are strong policy arguments in favour of paralegal representation in arbitrations and party autonomy favours paralegal representation.

Analysis of Whether a Paralegal can Represent a Party in an Arbitration

Subsection 6(2) of by-law 4 under the Law Society Act outlines the scope of activities in which a paralegal may engage. This includes representing a party before "a tribunal established under an Act of the Legislature of Ontario".

According to the Paralegal Rules of Conduct, the definition of "tribunal" includes "arbitrators".

Subsection 1(1) of the Law Society Act defines an "adjudicative body" to include at clause (b) "a tribunal established under an Act of Parliament or under an Act of the Legislature of Ontario" and at clause (d) "an arbitrator". Although there appears to be a distinction in this subsection, one or more arbitrators form an arbitral tribunal. The question becomes whether or not that arbitral tribunal is established by an Act of the Legislature of Ontario.

The Arbitration Act is an Act of the Legislature of Ontario and deals with arbitral tribunals including issues such as the composition, jurisdiction and conduct of arbitral tribunals as well as awards, enforcement and appeals of arbitral tribunal decisions.

An arbitral tribunal exercises statutory powers in decision-making. For example, pursuant to subsection 17(1) of the Arbitration Act, an "arbitral tribunal may rule on its own jurisdiction". As a further example, section 31 of the Arbitration Act states that an "arbitral tribunal shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies".

Since the Arbitration Act is an Act of the Legislature of Ontario and the Arbitration Act addresses fundamental issues (composition, jurisdiction, conduct, awards, enforcement and appeals) and an arbitral tribunal exercises statutory powers in decision-making, it appears that an arbitral tribunal meets the definition of by-law 4 of being "a tribunal established under an Act of the Legislature of Ontario".

In light of the foregoing, it appears that paralegals can represent clients in arbitrations.

Analysis of Whether a Paralegal can Represent a Client in an Arbitration where the Claim is for more than $25,000

The $25,000 Small Claims Court limit is specific to the Small Claims Court pursuant to subsection 1(1) of Ontario Regulation 626/00 of the Courts of Justice Act.

At the Landlord and Tenant Board, there is a $25,000 limit, but this limit is tied to the Small Claims Court limit pursuant to various sections of the Residential Tenancies Act.

Paralegals can and do represent clients before tribunals where there is no monetary limit. For example, the Human Rights Tribunal of Ontario has no monetary limit.

There is no monetary limit in the Arbitration Act.

As a $25,000 limit is specific to the Small Claims Court and the Landlord and Tenant Board due to legislation and regulations and there is no monetary limit in the Arbitration Act, it appears that paralegals can represent clients in arbitrations where more than $25,000 is at stake.

Policy Considerations

There are many strong policy arguments as to why paralegals ought to be entitled to represent clients before arbitral tribunals. Paralegals and arbitration are extremely important in terms of access to justice.

Rule 3.02(12) of the Paralegal Rules of Conduct states that paralegals "shall consider the use of alternative dispute resolution (ADR) when appropriate, inform the client of ADR options, and, if so instructed, take steps to pursue those options". This seems to reflect the strong policy arguments in favour of ADR, including arbitration.

Party autonomy suggests that parties should be able to decide whether to self-represent or have a paralegal or lawyer represent them, subject to any clauses in the arbitration rules agreed upon.

Conclusion

As the law is now, it appears that paralegals can represent clients in arbitrations and there is no monetary limit restricting a paralegal's representation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.