Procedural Requirements to Disqualify a Paralegal

Yesterday's decision in Charron v. Ontario (Attorney General), 2008 CanLII 28043 (ON S.C.) set out the process for barring a paralegal from a Court where the paralegal has jurisdiction to act.

It is very important to note that barring a paralegal is different from a judicial officer declining to hear the paralegal because, say, of some personal interaction. Where a judicial officer believes there might be a perception of bias it is entirely appropriate for that officer not to hear a specific paralegal (or lawyer). Such recusal is not a barring at all.

The Court relied on the Ontario Court of Appeal decision in R. v. Romanowicz, [1999] O.J. No. 3191 saying:

[19] At para. 77, the court said the following:

The power to disqualify agents, like any other facet of the court's power to control its processes, must be exercised judicially on the basis of the circumstances present in a given case.

[20] The court then outlined, at para. 79, the following procedure for dealing with an issue of this nature:

When the issue is raised, the grounds for the potential disqualification of the agent should be clearly articulated. The trial judge should first decide whether those grounds provide any basis upon which to disqualify the agent. If satisfied that they do, the trial judge should then conduct an inquiry in which all interested parties are given a full opportunity to present their positions on the issue. Although the rules of evidence would not necessarily apply to this inquiry, the dictates of procedural fairness must.

[21] This requirement for procedural fairness applies equally where the court purports to ban an agent pursuant to s. 50(3) of the Act: R. v. Tassone, [2006] O.J. No. 1365 (S.C.J.) per Trafford J..

[22] It is clear that no procedural fairness was afforded to the Applicant when the Respondent made his order of June 23, 2003 banning her from his court. She was not even present when the issue was raised, and received no notice that the issue was about to be dealt with. She had no opportunity to make submissions or present evidence, and no inquiry was held.

[23] The failure to afford procedural fairness is an error that goes to the jurisdiction of the Respondent to make the banning order. An order in the nature of certiorari is warranted to quash that order, as well as each subsequent order in which the Applicant was banned from the courtroom, up to and including the order of December 21, 2007.

James Morton
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