Municipal property tax and assessment paraprofessionals – Unpacking of Caruso v The Law Society of Ontario

In November 2023, the Ontario Superior Court of Justice (Divisional Court) released the Caruso v. The Law Society of Ontario, 2023 ONSC 6744 (“Caruso”) 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 (“By-Laws”) does not permit paralegals to draft immigration documents or provide immigration legal services that are not related to a hearing/proceeding. Caruso 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.

Questions have been raised as to whether the findings and principles in Caruso 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 “Law Society”)  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.

None of the courts, the Law Society, the Assessment Review Board nor any authority has weighed in on the impact  – if any – of Caruso 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.

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 “municipal application” for a refund in property taxes pursuant to the Municipal Act, 2001 and City of Toronto Act (together, the “Acts”). This article considers the extent to which the findings in Caruso may impact a paralegal’s ability to file municipal applications on behalf of taxpayers.

Having reviewed Caruso in combination with the Immigration and Refugee Protection Act (“IRPA”) – the main form of legislation in that case – the Law Society Act, the By-laws, and the Law Society’s website, including its FAQ pages, it is evident that Caruso 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 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.

Types of legal services

Section 1(5) of the Law Society Act defines “legal services” as:

Provision of legal services

(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

Section 1(6)  of the Law Society Act enumerates specific activities that come within the definition of legal services:

(6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:

1. 1. Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person.
   2. Selects, drafts, completes or revises, on behalf of a person,

1. 1. 1. a document that affects a person’s interests in or rights to or in real or personal property,
      2. a testamentary document, trust document, power of attorney or other document that relates to the estate of a person or the guardianship of a person,
      3. a document that relates to the structure of a sole proprietorship, corporation, partnership or other entity, such as a document that relates to the formation, organization, reorganization, registration, dissolution or winding-up of the entity,
      4. a document that relates to a matter under the Bankruptcy and Insolvency Act (Canada),
      5. a document that relates to the custody of or access to children,
      6. a document that affects the legal interests, rights or responsibilities of a person, other than the legal interests, rights or responsibilities referred to in subparagraphs i to v, or
      7. a document for use in a proceeding before an adjudicative body.

1. 3. Represents a person in a proceeding before an adjudicative body.
   4. Negotiates the legal interests, rights or responsibilities of a person.

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 “proceedings”:

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:

1. 1. Give a party advice on his, her or its legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.
   2. Represent a party before,

1. 1. 1. in the case of a proceeding in the Small Claims Court, before the Small Claims Court,
      2. in the case of a proceeding under the Provincial Offences Act, before the Ontario Court of Justice,
      3. in the case of a proceeding under the Criminal Code, before a summary conviction court,
      4. in the case of a proceeding before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, before the tribunal, and
      5. in the case of a proceeding before a person dealing with a claim or a matter related to a claim, before the person.

Immigration applications vs. municipal applications

Although the court in Caruso does not explicitly say so, it is presumed that the court was satisfied that the drafting of immigration applications is a “legal service” of the kind enumerated under section 1(6) of the Law Society Act, 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 “proceeding.” Drafting and completing an immigration application on someone’s behalf falls squarely within s(1)(6)2.vi. of the Law Society Act, since it necessarily involves drafting and completing a document that affects a person’s legal interests and rights. Immigration applications are complex and require legal judgment and an understanding and application of basic legal principles.

Sections 91(1) and (2) of the IRPA, 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:

91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

(2) A person does not contravene subsection (1) if they are

• (a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
• (b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
• (c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

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 “proceedings.” 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] which was confirmed by the court in Caruso.

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 – which affects a property owner’s pecuniary interests – arguably falls outside the scope of what constitutes “legal services” under section 1(6) of the Law Society Act.

Municipal applications are made to a municipality[2] 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’s 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 “proceeding” before the Assessment Review Board, which would then require a taxpayer representative to be a licensee of the Law Society.

Unlike the IRPA, the Acts do not limit who can represent persons with respect to municipal applications before 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 a licensee of the Law Society.

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 “representatives who are NOT legal counsel” to confirm that they have written authorization. This is consistent with  standard practice, wherein a “representative” or “agent” 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.

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] 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 “proceeding” 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’s Rules of Practice and Procedure (“Rules”) which define “representative” as “a person authorized under the Law Society Act or its By-Laws to represent a person in a proceeding before the Board.” The Rules 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.

Notably, the Municipal Act, 2001 does limit a “representative” of an owner or occupier of land in a proceeding regarding a warrant to inspect property to persons “authorized under the Law Society Act”, 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, but they do not.

Conclusion

Caruso must be read and understood in the context of Canada’s immigration regime and the particularities of that system as they relate to a paraprofessional’s scope of practice and caution should be exercised when trying to map the findings of that case onto situations outside of the immigration context.

Should you have any questions, please do not hesitate to contact a member of Miller Thomson’s Municipal, Planning & Land Development or Immigration groups.

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[1] See the Law Society’s interpretation under, “Can paralegals provide legal services related to immigration law?”

[2] 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.

[3] See subsection 357(11) of the Municipal Act, 2001 and subsection 323(11) of the City of Toronto Act, 2006