Caruso v. Law Society of Ontario

Caruso v. Law Society of Ontario Collection Decisions of the Court of Appeal Date 2025-04-08 Neutral citation 2025 ONCA 270 Docket numbers COA-24-CV-0999, M55722, M55744, M55748, M55752 Judges Wilson, Darla A. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Caruso v. Law Society of Ontario, 2025 ONCA 270 DATE: 20250408 DOCKET: M55772, M55748, M55752, M55744 (COA-24-CV-0999) Wilson J.A. (Motions Judge) BETWEEN Antonio Caruso Applicant (Appellant) and Law Society of Ontario Respondent (Respondent in Appeal) Antonio Caruso, acting in person Nader R. Hasan and Stephen Aylward, for the respondent Wafa Khan, for the proposed intervener Ontario Paralegal Association Robert W. Staley and Ian W. Thompson, for the proposed intervener College of Immigration and Citizenship Consultants Sujit Choudhry, for the proposed intervener Canadian Immigration Lawyers Association Tigran Sandukhchyan, Uri Kogan and Andrew Little, acting in person for the Canadian Paralegal Alliance Heard: in writing ENDORSEMENT [1] Antonio Caruso has appealed from the order of the Divisional Court (Caruso v. The Law Society of Ontario, 2023 ONSC 6744) dismissing his application challenging the Law Society of Ontario’s restrictions on the permitted scope of practice for paralegals in immigration matters. Mr. Caruso is advancing multiple grounds of appeal in his challenge to the decision below. [2] Four organizations seek leave to intervene in this appeal as friends of the court, pursuant to Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: the Ontario Paralegal Association (“OPA”), the College of Immigration and Citizenship Consultants (“CICC”), the Canadian Immigration Lawyers Association (“CILA”), and the Canadian Paralegal Alliance (the “CPA”). [3] The intervener motions by OPA and CILA are unopposed. Mr. Caruso opposes the intervention of CICC unless it is made liable for costs. The respondent Law Society of Ontario (the “LSO”) opposes the intervention of the CPA. [4] By way of background, Mr. Caruso was granted leave to appeal by this court on the following issue: The Law Society of Ontario has determined that, under its By-Law 4: “Drafting of documents or other legal services practices that are not related to an IRB [Immigration and Refugee Board] hearing remain outside of a paralegal’s scope of practice”. The issue on which leave is granted is this: Whether the Divisional Court erred in finding that this LSO policy is a reasonable and correct interpretation and application of the applicable law, including sections 2 and 30(12) of the Canada Evidence Act, section 91 of the Immigration Refugee Protection Act; sections 166, 167(1), 170, 171, 173, and 175 of the Immigrations Refugee Protection Act; and the legislative history and purpose of the Law Society Act and LSO By-Law 4. [5] I am the appeal management judge for this appeal. As set out in my case management directions of November 13, 2024, Counsel had agreed that the motions for leave to intervene will be dealt with as motions in writing. A further case conference was held on March 3, 2025 after the delivery of motion materials, and I have considered the additional submissions made at that case conference. A. Relevant Principles [6] In determining whether to grant leave to intervene as a friend of the court pursuant to r. 13.03(2), the court will consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (Ont. C.A.), at p. 167; Foster v. West, 2021 ONCA 263, at para. 10; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8. [7] The likelihood of assistance is a function of many variables, including, but not only, the experience and expertise of the proposed intervener: Jones v. Tsige (2011), 106 O.R. (3d) 721, at para. 25. [8] Where the litigation in which the intervention is sought is a private dispute, the standard to be met by the proposed intervener is more onerous or more stringently applied. While this dispute is between an individual and the LSO, the court’s decision on the appeal will impact the interests of paralegals and the public as it relates to the provision of immigration services. As such, in my view, this is a public policy case with broader implications in which a “softened’ threshold applies: Jones, at para. 23. [9] The appeal has been perfected but has not yet been listed for hearing. Accordingly, the addition of any interveners will not prejudice the parties by jeopardizing a previously scheduled hearing date. B. THE PROPOSED INTERVENERS (1) OPA [10] OPA was granted leave to intervene in the Divisional Court below. Its intervention on this appeal is unopposed. [11] OPA is the largest professional association of licensed paralegals in Ontario, with nearly 1,000 members. OPA’s mandate is to improve the working experience of paralegals and to advocate for their needs in the industry, on behalf of its paralegal body of members. [12] OPA provides career guidance and continuing education opportunities, lists the concerns of members, and represents member interests throughout Ontario. OPA submits that its membership’s concerns include the impact of the Divisional Court’s decision, which restricts paralegals’ scope of practice. [13] I have summarized the two main thrusts of OPA’s proposed submissions if granted leave to intervene as follows: 1. The results of this appeal will affect vulnerable communities, particularly immigrants and refugees that rely on cost-effective legal services, such as those provided by paralegals. If this court finds that the Divisional Court was correct in their decision, this will hinder access to justice for vulnerable groups of individuals. 2. In 2011, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”) was amended by Bill C-35, whereby paralegals were granted equivalent standing as lawyers in practicing immigration law. No limitations exist in the IRPA which prevent paralegals from practicing full scope immigration law. [14] While OPA’s position is aligned with the appellant’s, it provides a broader perspective that is distinct from the parties’, as well as some additional balance because the appellant is self-represented. OPA is well positioned to advance its proposed arguments about concerns regarding the provision of immigration services to the public, and the potential consequences of limiting the scope of paralegal practice. [15] I am satisfied that OPA has specialized expertise and can make a useful contribution to the issues on appeal. Its motion to intervene is granted. (2) CILA [16] CILA’s proposed intervention on this appeal is also unopposed. [17] CILA is a non-partisan and non-profit association focused exclusively on immigration law, with approximately 540 members. It provides professional resources and mentorship, and promotes positive change in the Canadian immigration system for all immigrants, newcomers, and persons having dealings with Canadian immigration and citizenship laws. It participates in advocacy activities regarding competent and ethical representation of immigration clients. [18] CILA also engages in stakeholder consultations with IRCC and other ministries and organizations and makes regular appearances before various committees. Its participation has included consultations with Public Safety Canada, Employment and Social Development Canada, Global Affairs Canada, Members of Parliament, and the Federal Court of Canada, and it has made appearances before the House of Commons Standing Committee on Citizenship and Immigration, the Senate of Canada’s Standing Committee on Social Affairs, Science and Technology. CILA also contributes to the Federal Court of Canada’s Bench and Bar Liaison Committee. [19] CILA submitted a draft of the factum that it would file if granted leave to intervene, a practice that, while not mandatory, is of considerable assistance to the court on intervention motions and should be encouraged. Its submissions clearly focus on the statutory interpretation principle of the presumption of constitutionality, which CILA in turn applies to the interpretation of s. 91 of the IRPA. This line of argument is distinct from those made by the parties and other proposed interveners. [20] I am satisfied that CILA can provide a unique perspective on the relevant issues, and grant leave for it to intervene. (3) CICC [21] CICC is a not-for-profit corporation established by the College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29 (“CICCA”). It is the successor to the Immigration Consultants of Canada Regulatory Council, which was previously designated by the federal government as the regulatory body of all registered immigration and citizenship consultants. [22] As set out in its motion record, CICC protects the public by licensing and regulating immigration consultants, who must meet certain enumerated criteria, follow CICC’s regulations, and are subject to a complaints and disciplinary process. Members in good standing of CICC are authorized to represent and receive compensation for advising persons in connection with proceedings and applications under the IRPA and the Citizenship Act, R.S.C. 1985, c. C-29. [23] CICC was granted leave to intervene below by the Divisional Court. [24] The LSO does not oppose CICC’s proposed intervention in this appeal. Mr. Caruso opposes, unless CICC is exposed to costs. Mr. Caruso submits that costs should be awarded against CICC for allegedly failing to disclose that lawyers and paralegals are exempt from CICCA regulation. The LSO submits that the question of costs should be decided by the panel hearing the appeal. [25] Ordinarily, interveners are neither awarded costs nor have costs awarded against them: Daly v. Ontario Secondary School Teachers' Federation (1999), 124 O.A.C. 152, at para. 6, citing Harper v. Harper, [1980] 1 S.C.R. 2, Young v. Young, [1993] 4 S.C.R. 3, at p. 138. [26] I see no reason to depart from that principle here. CICC identifies itself as the federally established body created to govern and regulate immigration consultants, with a mandate of ensuring a consistent standard of competence from non-lawyers who seek to provide immigration consulting services. If granted leave to intervene, it intends to submit i) that its mandate would be frustrated if this court allows the appeal and finds that paralegals are capable of providing immigration services outside the restrictions of the LSO’s by-laws, and ii) how the current regime, as regulated in parallel by the LSO and CICC, is a functional and useful system. I do not see CICC’s submissions as misleading by omission, and decline to award costs against CICC. [27] CICC’s proposed arguments are informed by its expertise and unique perspectives on the issues on appeal. It is well-positioned to provide the court with useful and distinct submissions about the risks of unlicensed and unqualified individuals providing unregulated immigration consulting services to vulnerable new or prospective Canadians. I grant CICC leave to intervene. (4) CPA [28] The CPA is not represented by counsel. In addition to seeking leave to intervene, it seeks leave under r. 15.01(2) to be represented by one of its directors. The LSO opposes. [29] The CPA appears to have four directors: Tigran Sandukhchyan, Uri Kogan, Andrew Little, and the appellant, Antonio Caruso. Unfortunately, the CPA does not identify which director it seeks to appoint as its litigation representative. [30] The evidence filed by the CPA is sparse. It filed a four-paragraph affidavit from Mr. Little, stating that the CPA was in correspondence with the Minister of Immigration, Refugees and Citizenship regarding the scope of practice of paralegals in providing legal services connected with immigration, and attaching a letter from the Minister confirming that the CPA has been included in the Ministry’s stakeholder email list. The letter was addressed to the appellant, as President of the CPA. The affidavit provides no further information about the CPA’s history, membership, structure, or directors. [31] In its responding motion record, the respondent LSO identified many of the gaps in the CPA’s record. The CPA does not appear to have a website, and search results for the “Canadian Paralegal Alliance” primarily reveal social media posts by the appellant, Mr. Caruso. The LSO submits that the CPA is a front for the appellant himself. [32] Curiously, most of the information relevant to the CPA’s requests for leave under r. 15.01(2) and r. 13.02 is found in the record that Mr. Caruso himself filed in response to the intervener motions. Mr. Caruso filed a second affidavit from Mr. Little, backfilling some of the information gaps identified by the LSO. [33] Mr. Little’s second affidavit, as filed by the appellant, describes the CPA as “a newly established advocacy group also known as 15283795 Canada Association”, a corporation established in 2023. Mr. Little further advises that there are four directors of the CPA, one of whom is Mr. Caruso, but that Mr. Caruso has “recused himself in the decision as he is the applicant in this matter”. No corporate records or authorizations are included, nor is any particular director identified as the CPA’s representative. [34] Granting leave to a non-lawyer to represent a corporation under r. 15.01(2) is discretionary decision which must be made having regard to all of the circumstances in a particular case: GlycoBioSciences Inc. (Glyco) v. MAGNA Pharmaceuticals, Inc. (Magna), 2024 ONCA 760, at para. 4. In determining whether to grant leave to a non-lawyer to act as well as determining whether to grant intervener status, I must balance the risks and considerations that weigh against granting leave with any concerns that arise about access to justice. [35] A corporation’s authorization of an individual to represent it is a necessary (but not sufficient) condition for an order under r. 15.01(2): GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481, at para. 10. There is no such authorization before me. [36] The CPA does not adequately address whether the interests of shareholders, officers, directors, employees, creditors, and other potential stakeholders are sufficiently protected by appointing one of its directors as its litigation representative. It provided no corporate documentation. Mr. Little proposes that the CPA’s written and oral submissions to the court would be made “via an experienced paralegal director” but does not identify which of its paralegal directors the CPA had in mind. The CPA’s affiant, Mr. Little, is not a paralegal. [37] Mr. Little’s second affidavit indicates that the CPA is not capable of financing a lawyer, and that “a lot of lawyers are claiming Law Pro conflicts”. Law Pro is not a party to this proceeding. While the inability to access counsel may raise access to justice concerns, on balance, I am not satisfied that this is one of the rare cases in which leave for a non-lawyer to represent a corporation should be granted. [38] Even if I had granted leave for one of the directors to represent the CPA, I would also dismiss the CPA’s motion for leave to intervene in this appeal in any event. [39] The CPA, in its own record and as supplemented by Mr. Caruso’s materials, did not provide sufficient evidence about its membership, mandate, expertise, or experience to satisfy me that the CPA is likely to provide the court with meaningful assistance in this appeal. [40] I share the LSO’s concerns that granting the CPA leave to intervene will increase confusion by introducing arguments on irrelevant and peripheral issues. The CPA’s proposed submissions[1] are confusing and difficult to follow. Its core submission appears to be that the Divisional Court erred by finding IRRC case workers are not “tribunals”, with reference to the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22, and by analogy to the Supreme Court’s interpretation of the meaning of “Director” under the now-repealed Meat Inspection Act (Ontario), R.S.O. 1990, c. M.5. I am not convinced these submissions would be helpful to the interpretation of LSO By-Law 4, the issue upon which leave to appeal was granted. Many of the other submissions by the CPA engage in constitutional issues or engage whether paralegals can be “immigration consultants” under the CICCA. Some of these arguments duplicate some of the appellant’s submissions, and in any event, are not the issues upon which leave to appeal was granted. [41] The other proposed interveners have a demonstrated membership base and recognized commitment to advocacy. There is no information in the record about whether the CPA’s membership extends beyond its four directors, one of whom is the appellant. While Mr. Little deposed that the CPA “looks to advocate to other provincial governments and other provincial law societies to improve the public’s access to affordable legal representation with implementation of paralegals wherever possible and appropriate”, that description is forward-looking, and there is no information about the frequency or scope of its current or past advocacy. A single exchange between the CPA and the Minister of Immigration, Refugees and Citizenship confirming that the CPA is included on the Ministry’s stakeholder email list is not sufficient to demonstrate that the CPA has the relevant experience and expertise to assist the court. [42] I am also concerned by the connection between Mr. Caruso and the CPA, which is apparent on the face of the materials and by the submissions made by Mr. Caruso on the CPA’s behalf. Despite Mr. Little’s evidence that Mr. Caruso has recused himself, Mr. Caruso filed evidence in support of the CPA’s intervention, and made submissions in support of the CPA at the case conference before me on March 3, 2025. In particular, Mr. Caruso reiterated that the CPA has been recognized as a stakeholder with the Ministry, and disputes the LSO’s assertion that the CPA is his “alter ego”. Those submissions are not consistent with a director who has purportedly recused himself. [43] A friend of the court serves the court, not the parties. The role connotes an element of impartiality or altruism: Baldwin v. Imperial Metals Corporation, 2021 ONCA 114, at para. 4. [44] I am mindful of this court’s decision in Henry v. Zaitlen, 2023 ONCA 740, in which counsel to one of the parties also sat on the executive committee of a legal organization (the Ontario Trial Lawyers Association, or the “OTLA”) that was granted leave to intervene in an appeal. In that case, however, there was no dispute that the OTLA was a well-recognized group who had often been granted intervener status in previous cases. There was no suggestion of actual conflict, or evidence consistent with the organization being the appellant in disguise. The landscape is not so straightforward here. The CPA submits that the appellant (its president and one of its four directors) has recused himself – yet he has filed evidence and made submissions on its behalf. This is not a case where “the strong presumption of professionalism” can be relied upon: Zaitlen, at para. 20. The CPA’s connection with the appellant undermines the appearance of impartiality needed to act as a friend of the court. [45] I do not find that the CPA is able to provide the Court with a perspective that is distinct from those of the parties, and I am not satisfied that the CPA’s intervention in this case would assist the court. I dismiss its motion for leave to intervene. C. DISPOSITION [46] The CPA is denied leave to be represented by its directors, and its motion for leave to intervene is dismissed. I decline to award $250 in costs against the CPA as requested by the LSO. [47] CICC, CILA and the OPA (the “Interveners”) are granted leave to intervene as a friend of the court pursuant to r. 13.03(2) of the Rules of Civil Procedure on the following terms: 1. Each of the Interveners shall deliver a factum not exceeding 10 pages in length, confined to the issues raised in their intervention motions, and a book of authorities, within 20 days of the release of this decision. 2. The appellant and respondent may each deliver a factum not exceeding 15 pages in length in reply to all of the Interveners’ submissions, and a book of authorities, within 40 days of the release of this decision. 3. The Interveners shall each be permitted to present up to 10 minutes of oral argument, subject to the discretion of the panel hearing the appeal. 4. The Interveners shall not adduce further evidence or otherwise supplement the record of the parties and will attempt to avoid duplication in their submissions. [48] The Interveners did not seek costs, and none are awarded. “D.A. Wilson J.A.” [1] The CPA did not provide a factum in support of its motion for leave to intervene or to be represented by one of its directors, contrary to the requirement to do so in contested motions under r. 37.12.1(4). It did not provide a draft factum that it would submit if granted leave to intervene. Its proposed submissions are set out in its notice of motion only.