In November 2023, the Ontario Superior Court of Justice (Divisional Court) released the Caruso v. The Law Society of Ontario<\/em><\/a>, 2023 ONSC 6744 (\u201cCaruso<\/strong><\/em>\u201d) decision, which clarified the scope of paraprofessional practice with respect to immigration applications. The court held in Caruso<\/em> that By-Law 4 of the Law Society of Ontario’s By-laws<\/a> (\u201cBy-Laws<\/strong>\u201d) does not permit paralegals to draft immigration documents or provide immigration legal services that are not related to a hearing\/proceeding. Caruso<\/em> effectively confirms a stance previously taken by the Law Society of Ontario that paralegals are prohibited from preparing or providing legal advice in relation to immigration applications.<\/p>\n\n\n\n Questions have been raised as to whether the findings and principles in Caruso<\/em> may extend and apply beyond the immigration context to other paralegal practice areas, including property tax and assessment. Since 2007, the Law Society of Ontario (the \u201cLaw Society<\/strong>\u201d) has regulated the municipal assessment and property tax realm in Ontario and, as a result, taxpayer representatives appearing before the Assessment Review Board must be licensees of the Law Society. Since the industry came under the purview of the Law Society, paralegals have assumed a crucial role in the delivery of property tax and assessment services to Ontario taxpayers.<\/p>\n\n\n\n None of the courts, the Law Society, the Assessment Review Board nor any authority has weighed in on the impact – if any – of Caruso<\/em> on the delivery of property tax and assessment services. However, it is prudent to consider the likelihood of it having an impact on the paralegal scope of practice in other areas, including the property tax and assessment industry.<\/p>\n\n\n\n If certain events (such as the property being razed or damaged by fire or demolition) occur during a taxation year, a property owner, the spouse of an owner, the tenant, an occupant, their spouse, or their authorized representatives may file what is referred to as a \u201cmunicipal application\u201d for a refund in property taxes pursuant to the Municipal Act, 2001<\/em><\/a> and City of Toronto Act<\/em><\/a> (together, the \u201cActs<\/strong>\u201d). This article considers the extent to which the findings in Caruso<\/em> may impact a paralegal\u2019s ability to file municipal applications on behalf of taxpayers.<\/p>\n\n\n\n Having reviewed Caruso<\/em> in combination with the Immigration and Refugee Protection Act<\/em><\/a> (\u201cIRPA<\/strong>\u201d) \u2013 the main form of legislation in that case – the Law Society Act<\/em><\/a>, the By-laws, and the Law Society\u2019s website, including its FAQ pages, it is evident that Caruso<\/em> is highly specific to the immigration context. Without clear, express input from the courts, Law Society, or the Assessment Review Board to the contrary, it is difficult to see how Caruso<\/em> could have practical application beyond the narrow context from which it stems, including on the property tax and assessment industry with respect to the filing of municipal applications.<\/p>\n\n\n\n Section 1(5) of the Law Society Act<\/em> defines \u201clegal services\u201d as:<\/p>\n\n\n Provision of legal services<\/strong><\/p>\n (5) For the purposes of this Act, a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person<\/p>\n Section 1(6) of the Law Society Act enumerates specific activities that come within the definition of legal services:<\/p>\n (6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:<\/p>\n Both lawyers and paralegals can provide legal services, but the scope of legal services that paralegals are permitted to provide is narrower. Section 6(2) of By-Law 4 of the By-Laws sets out the scope of practice for paralegals, which authorizes paralegals to act as representatives in certain \u201cproceedings\u201d:<\/p>\n 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:<\/p>\n Although the court in Caruso <\/em>does not explicitly say so, it is presumed that the court was satisfied that the drafting of immigration applications is a \u201clegal service\u201d of the kind enumerated under section 1(6) of the Law Society Act<\/em>, but not a legal service that comes within the paralegal scope of practice under section 6 of By-Law 4, as drafting and completing an application is not a \u201cproceeding.\u201d Drafting and completing an immigration application on someone\u2019s behalf falls squarely within s(1)(6)2.vi. of the Law Society Act<\/em>, since it necessarily involves drafting and completing a document that affects a person\u2019s legal interests and rights. Immigration applications are complex and require legal judgment and an understanding and application of basic legal principles.<\/p>\n\n\n\n Sections 91(1) and (2) of the IRPA<\/em>, together expressly restrict the persons who may represent or advise with respect to an immigration application or proceeding to lawyers, paralegals, and licensed immigration consultants:<\/p>\n\n\n 91\u00a0(1)<\/strong>\u00a0Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration \u2014 or offer to do so \u2014 in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.<\/p>\n (2)\u00a0<\/strong>A person does not contravene subsection (1) if they are<\/p>\n These sections must then be read together with section 6 of By-Law 4 which restricts the paralegal scope of practice to certain activities in the context of \u201cproceedings.\u201d Accordingly, in the immigration context, the only persons who are authorized to provide legal services in connection with immigration applications are lawyers and immigration consultants. This is the formal position taken by the Law Society[1]<\/a> which was confirmed by the court in Caruso<\/em>.<\/p>\n\n\n\n By contrast, filling out a municipal application does not require the application of legal principles or legal judgment. Filling out the application is a service, but the legal services provided by paralegals come later, when the matter is put before the Assessment Review Board. Unlike the drafting of an immigration application , the filling out and filing of a municipal application \u2013 which affects a property owner\u2019s pecuniary interests – arguably falls outside the scope of what constitutes \u201clegal services\u201d under section 1(6) of the Law Society Act.<\/em><\/p>\n\n\n\n Municipal applications are made to a municipality[2]<\/a> and then considered by municipal council. The applications usually require filling out factual information and details about the property and the applicant, and checking a box to indicate the reason for the application and the optional authorization of an agent to act on a property owner\u2019s behalf. Importantly, the application does not require that the agent be authorized by the Law Society of Ontario to provide legal services. If council approves a municipal application, a tax refund is issued. If council denies an application, applicants may appeal the decision to the Assessment Review Board. If a decision made on an application is appealed, this would be the initiating of a \u201cproceeding\u201d before the Assessment Review Board, which would then require a taxpayer representative to be a licensee of the Law Society.<\/p>\n\n\n\n Unlike the IRPA<\/em>, the Acts do not limit who can represent persons with respect to municipal applications before<\/em> a proceeding is commenced. An owner of property or someone who otherwise has an interest in property is free to appoint an authorized representative or agent for the purposes of a municipal application who is not<\/em> a licensee of the Law Society.<\/p>\n\n\n\n That a representative for municipal applications need not be a licensee is made clear from the face of the applications themselves which, in the case of Assessment Review Board applications, require \u201crepresentatives who are NOT legal counsel\u201d to confirm that they have written authorization. This is consistent with standard practice, wherein a \u201crepresentative\u201d or \u201cagent\u201d for the purposes of a municipal application can be, for instance, a property management company or manager who has been authorized by a property owner to apply on their behalf.<\/p>\n\n\n\n If a municipality has delegated its powers and functions with respect to municipal applications that are the subject of the article to the Assessment Review Board[3]<\/a> the applicable application form does refer to By-Law 4 and the provision of legal services. In this regard, it is important to note that the Assessment Review Board application form has a dual function as both an application form and an appeal form. If the form is used for appeal purposes, then a \u201cproceeding\u201d is commenced involving the provision of legal services, and those proceedings come within the paralegal scope of practice. A representative for an appeal (proceeding) would necessarily need to be a licensed paralegal or lawyer. This is clear from the Assessment Review Board\u2019s Rules of Practice and Procedure<\/em><\/a> (\u201cRules<\/em>\u201d) which define \u201crepresentative\u201d as \u201ca person authorized under the Law Society Act or its By-Laws to represent a person in a proceeding before the Board.\u201d The Rules<\/em> limit who can represent a party or participant before the Assessment Review Board in a proceeding, but like the Acts, do not limit a representative for the purpose of filling out municipal applications.<\/p>\n\n\n\n Notably, the Municipal Act, 2001<\/em> does<\/em> limit a \u201crepresentative\u201d of an owner or occupier of land in a proceeding regarding a warrant to inspect property to persons \u201cauthorized under the Law Society Act\u201d, but no such restriction exists for representatives in the case of municipal applications. The Acts could similarly limit those able to make municipal applications to persons authorized under the Law Society Act<\/em>, but they do not.<\/p>\n\n\n\n Caruso<\/em> must be read and understood in the context of Canada\u2019s immigration regime and the particularities of that system as they relate to a paraprofessional\u2019s scope of practice and caution should be exercised when trying to map the findings of that case onto situations outside of the immigration context.<\/p>\n\n\n\n Should you have any questions, please do not hesitate to contact a member of Miller Thomson’s Municipal, Planning & Land Development<\/a> or Immigration<\/a> groups.<\/p>\n\n\n\n [1]<\/a> See the Law Society\u2019s interpretation under, \u201cCan paralegals provide legal services related to immigration law?<\/a>\u201d<\/p>\n\n\n\n [2]<\/a> There is an exception where an application will be made to the Assessment Review Board and not the municipality, in the case where the municipality has passed a by-law delegating authority. See discussion below.<\/p>\n\n\n\n [3]<\/a> See subsection 357(11)<\/a> of the Municipal Act, 2001 <\/em>and subsection 323(11)<\/a> of the City of Toronto Act, 2006<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" In November 2023, the Ontario Superior Court of Justice (Divisional Court) released the Caruso v. The Law Society of Ontario, 2023 ONSC 6744 (\u201cCaruso\u201d) decision, which clarified the scope of paraprofessional practice with respect to immigration applications. The court held in Caruso that By-Law 4 of the Law Society of Ontario’s By-laws (\u201cBy-Laws\u201d) does not […]<\/p>\n","protected":false},"author":86,"featured_media":14383,"parent":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[566],"insight-format":[416],"class_list":["post-6597","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-real-estate"],"acf":[],"yoast_head":"\nTypes of legal services<\/h2>\n\n\n\n
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Immigration applications vs. municipal applications<\/h2>\n\n\n\n
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Conclusion<\/h2>\n\n\n\n
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