September 2002

They Lay Practitioner Blues

By Paul Barker

THESE ARE NOT GOOD TIMES for John Mandryk, an outspoken consultant and paralegal who provides lay advocacy services for companies and individuals in British Columbia involved in claims disputes before the Workers' Compensation Board (WCB). He's in deep trouble with the province's law society, which has once again targeted him for alleged violation of the Legal Profession Act.

That act prevents anyone but lawyers from appearing as counsel or representing a client in any matter involving a provincial statute, including the Workers' Compensation Act.

What it means is that the president of J. Mandryk Associates Inc. is in the unenviable position of having to hire a lawyer to defend himself against lawyers. In addition, if the society is successful with a legal challenge now winding its way through the B.C. Supreme Court, he'll likely have to find a new line of work. "I could continue to do what I do without charging a fee, but how long would that last?" he asks. "The novelty of not eating wears pretty thin."

This is not the first time the two sides have sparred. Five years ago, Mandryk says, the society attempted to have his business "eliminated" from the WCB representation practice, but after "a lot of jousting" with the board, the society and the provincial government in power at the time, he was allowed to continue.

"The [current] law society action against my small business is not based upon any wrongdoing or complaint from a client," Mandryk wrote in a document detailing the latest case against him. "Rather, the only reason given is that our business was contravening the Legal Profession Act by representing clients in WCB matters. A lawyer complained to the WCB."

Mandryk, who was a WCB claims adjudicator for eight years before he left to start his own firm, argues that the WCB is an administrative tribunal, which uses an inquiry system that is distinct from the judicial or adversarial system.

"Due to the increasing complexity of the WCB, informed representation has become a necessary feature for workers and employers," he says. "Consultants who work in this area are generally trained through lengthy experience dealing with WCB matters."

Mandryk contends the current dispute is nothing more than a ploy by lawyers to protect their own turf, something that Richard Gibbs, president of the law society, vehemently denies. "The comment I would pose back to those who say, 'Look, we should be able to do this stuff because we're educated, trained and experienced,' is 'Fine, but the legislation says you can't do it unless you become a lawyer'," Gibbs says. He insists the rules are in place so that the interest of the public is protected.

Mandryk counters that the real solution is for the WCB and similar administrative tribunals to establish a code of conduct and performance for all those who appear before them.

Then again, should he lose he might want to consider shutting down his Cranbrook, B.C. office and moving to Alberta or New Brunswick instead. The rules pertaining to paralegals aren't as strict in Alberta, while the legal profession in New Brunswick allows non-lawyers to represent a company or individual in an administrative -- as opposed to a judicial -- tribunal.

Paul LeBreton, chair of the Appeals Tribunal for the Workplace Health, Safety and Compensation Commission in New Brunswick says there have been occasions when a consultant or lay representative has appeared on behalf of a claimant. "Some law societies' definitions of what constitutes the practice of law is, depending on your perspective, either very narrow or very broad," he says.

There is confusion across the country in terms of how one defines a paralegal service and how they should be regulated, says Darrel Pink, executive director of the Nova Scotia Barrister Society, which has the same policy on its books as B.C.

One province that has taken a lead role in this area is Ontario. A framework for regulating paralegal practice, which is still in the discussion stage, was contained in a report from Peter Cory, a former justice of the Supreme Court of Canada, released two years ago.

A key recommendation is that paralegals should be able to practise in a number of areas including before Ontario's Workplace Safety and Insurance Appeals Tribunal once a number of safeguards for the public have been created.

In the meantime, when it comes to determining the role a paralegal should play in a workers' comp tribunal, the case of a lay practitioner versus the Law Society of B.C. may end up setting a precedent. "The action by the law society is mean spirited and high handed," says Mandryk. "Mean spirited because [it has] attacked a small business and individuals attempting to provide a valuable service and earn a living. High handed because [it] knows it has the deep financial pockets and legal resources to destroy this business."

Paul Barker is a contributing editor of ohs canada.

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