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Paralegals As Notaries – The Submission that Made the Point

My fellow Paralegals, it a great day for this profession because as of August 1, 2020, we added Notary under our belt.  I was infuriated and sadden by the fact that one of us has decided to take credit for something that person is fully aware he had  absolutely no involvement in.  So let me give you some background before I reveal the submission that made the point.  It was April 10, 2019 the deadline for all submissions.  The OPA did not submit a written submission and and time was up.  We sought an extension and June Neimeijer, my sister, worked all night to write the submission that made the point.  The submission argued not only for paralegal but for law student, articling students aw well as other private stakeholders. This was a brilliant approach.  I am thankful to June Neimeijer and she deserves the credit not someone who is misguided and misleading. let this person provide the submission that he submitted for paralegals to become Notary or go quietly.  The OPA is thankful for Ms. Neimeijer’s contribution. The follow is the submission that made the point:

Ministry of the Attorney General Request for

 

Submissions on the Commissioners for Taking Affidavits and Notaries Public Reform

Date April 11, 2019

Submitted to:

The Ministry of the Attorney General

Submitted on behalf of:
The Ontario Paralegal Association

OPA’s Response to Ministry of the Attorney General’s Proposals for Reform

REFORMS FOR COMMISSIONERS:

Virtual Commissioning

It has become challenging for many people across the province of Ontario to access Commissioners for what has become an increasingly high volume of documents that require commissioning. It is proposed that virtual commissioning be included as a way of providing this service.  It is foreseen that the benefits will flow to have a positive impact on the following communities:

-remote locations

– the disabled

– lower socioeconomic persons

– immigrants

The above mentioned groups can benefit by the fact of having easier access to commissioning services. While many people may not be able to travel to a Paralegal’s office for the services, it is more likely than not that they have access to the internet, whether via computer or cell phone.  In respect of immigrant communities, many of these communities are already prolific users of the internet to communicate with their families.  Pointedly, immigrant communities are strong internet users, using the internet to communicate with their families.  For example, many immigrants use the internet via Facebook and skype to communicate with their families back home.

One of the main concerns in the use of Virtual Commissioning would be how a Commissioner will verify the identity of the party using its services.  OPA proposes that the client may provide a photocopy of their identification beforehand to the Commissioner and then by way of Skype, or another video platform, the Commissioner could then verify the identification of the client by comparing the identification provided.

Commissioners by Virtue of Office

OPA is of the opinion that a ready-made group that is quite suitable for performing commissioning services is students enrolled in law schools/articling students.  This is a group with legal knowledge and very soon in the future will become practicing Lawyers.  OPA would suggest that allowing members of this group be limited to those students in their final year of law school and articling students to become Commissioners by Virtue of Office.

Increase Appointment Terms

It is being proposed that the appointment terms of Commissioners could be increased 3 years to 5.  OPA considers this time period sensible as a middle ground and will be easier to create a the system that is less clogged when it is time for renewals. As a middle ground position, OPA proposes that requirements for renewals be less stringent, unless otherwise indicated, i.e. evidence of abuse by the appointee.

REFORMS FOR NOTARIES:

Notary Powers in general

OPA considers the proposal for clarifying the notarial powers to avoid ambiguities to be a welcome move. OPA is of the opinion that clarifying the wording in the notarial powers will enable notaries and the general public to have clarity about what a notary can do and how notaries can best serve the needs of their clients. This will eliminate misuse of powers and will allow the client to be informed about the benefits of notary services.  In particular, the clarification should include wording that clarifies and aligns the scope of notarial powers with the LSO scope of work for both Paralegals and Lawyers.

Non-lawyers – Notary Powers

In Ontario, non-lawyers can be notaries:  non-lawyers such as government official, Ontario-registered and federally registered directors of corporations engaged in international trade, patent and trademark agents, and head offices of national or provincial unions engaged in out-of-province business.  Other non-lawyers with notary powers are travel agents.  Travel agents have already for decades appointed as notaries.  Generally, travel agents would notarize documents for their clients, authenticating among other documents, copies of passports and birth certificates.  Under the existing law, non-lawyer notaries are not bound by any regulatory body and consequently, are not bound by any ethical requirements.

Paralegals as Notaries

Paralegals are trained legal professionals and are regulated by the Law Society of Ontario.  They are bound by By-laws and Regulations that govern their practices and ethical duties.  By virtue of a Paralegal licence, they are also Commissioner of Oaths.  Upon being retained by a client, Paralegals are required to verify the identity of their clients and to verify the authenticity of documents.  They provide legal advice based on these documents, which are often used in legal cases and provided to Crown Attorneys, Prosecutors, or as part of a Document Brief submitted to a Civil Court or Tribunal. Paralegals are required to perform due diligence in ensuring the authenticity of those documents, as well as providing legal advice regarding those documents.

It follows then a natural course that Paralegals are well positioned to be notaries.  Appointing Paralegals to become notaries through the same process as a Lawyer would be greatly appreciated as many Paralegals who apply to become notaries are usually refused. Paralegals frequently find themselves referring clients to Lawyers who typically charge a substantial fee for providing the service, which is a major drawback to access to justice. This can be confusing and costly to the client, which OPA considers would defeat the purpose of the Access to Justice Act:  providing access to justice for ordinary people.  Paralegals as notary powers allows Paralegals to provide a wider set of services to their clients, while at the same time maintaining the client relationship without having to incur unnecessary fees for services that Paralegals are competent to provide.

It was discussed that for a Paralegal to be granted the powers of a notary, the benchmark of being in good standing with the Law Society of Ontario is a criterion. OPA thinks, naturally, that is a good idea. Furthermore, education for these services (both notary and Commissioning powers) will be needed to reinforce the task of providing these needed services at the highest standard.  OPA concedes that this will be a new area for Paralegals and education will be a key factor to alleviate any concerns from Lawyers and the general public alike. To cover this concern, OPA is proposing that the Law Society require a component of information in the Paralegal curriculum defining the powers and the responsibilities of a notary.

Unlike non-lawyers who are notaries, Paralegals are governed by the same entities as Lawyers, and as such, should this proposal move forward, the Law Society, already the overseeing body for Paralegals, is well positioned to monitor the services to ensure that the proper standard is maintained. This will give relief to the concerns that if Paralegals are given the opportunity to obtain this notary power, they will be bound by the same ethics as Lawyers, which approach will likely limit misuse of the powers. Moreover, OPA will have a role in formulating a continuing education program to address any gap in education on the subject matter of notary powers.

Increase Appointment Terms

OPA agrees that it is important to decrease red tape and bureaucracies and therefore, an increase of the appointment term of notaries from 3 years to 5 would be acceptable.  With a 5- year appointment term, the governing bodies are positioned to better monitor the services of individual Paralegals and provide the necessary education if needed.  This 5-year term-period (instead of 10) could be conciliatory to Lawyers who may be resistant to Paralegal in this scope of work.

Moreover, currently, the Notary Application consists of an application, followed by a Notary Examination for all applicants. The proposal is to remove the examinations components of the notary appointment is a good approach.  It is usually time consuming, costly and redundant. This will save time and free up the courtrooms and judges who preside over these Examinations and therefore, more effective use of judicial time.  Currently, the court system is clogged from a big backlogged of legal matters and the idea of appointing Paralegals is to improve legal services.  The Notary Examinations covering more applicants would simply worsen the situation.  It is stated that the issues that are covered in the Oral Examination is covered sufficiently in the application process, which appears to suffice.

Concerns were raised about the reasons to maintain the Notary Examinations in special cases. These cases may include applicants whose applications have raised red flags, or if there are character, ethical or morality issues of concern.  OPA is hereby proposing that in such cases, after completing the application process for applicants, the Ministry could also do spot audits of applicants as a deterrent to prospective applicants who may not meet the criteria. This will also provide a process whereby the Ministry can, at any time, proceed with a Notary Examination. In this respect, the application could be amended to include wording stating that “this application may be subject to a Notary Examination”.

CONCLUSION:   

 Since the Paralegal regulations in 2008, the indicators have shown that there was a significant gap in access to justice and that Paralegals have bridged the gap by providing the public the means to legal representation that was not available in the past.  Paralegals are professionally trained, regulated and governed in a manner that offers the public legal representation in areas of law where the cost of retaining a lawyer makes it inaccessible. Should the proposals mentioned herein this Submission materialize, there will be an increase in access to justice, just like the Paralegal regulations did in 2008.

President – Ontario Paralegal Association

George Brown