ethical issues in workers’ compensation law for … · ethical issues in workers’ compensation...

chairs

Robert Boswell Crawford Chondon & Partners LLP

Michelle Zare

Zare Paralegal Services Professional Corporation

September 12, 2017

ETHICAL ISSUES IN Workers’ Compensation Law

for Paralegals

*CLE17-0090101-A-PUB*

DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility.

© 2017 All Rights Reserved

This compilation of collective works is copyrighted by The Law Society of Upper Canada. The individual documents remain the property of the original authors or their assignees.

The Law Society of Upper Canada 130 Queen Street West, Toronto, ON M5H 2N6Phone: 416-947-3315 or 1-800-668-7380 Ext. 3315Fax: 416-947-3991 E-mail: [email protected] www.lsuc.on.ca

Library and Archives Canada Cataloguing in Publication

Ethical Issues in Workers’ Compensation Law for Paralegals

ISBN 978-1-77094-594-4 (Hardcopy)ISBN 978-1-77094-593-7 (PDF)

1

Chairs: Robert Boswell Crawford Chondon & Partners LLP Michelle Zare Zare Paralegal Services Professional Corporation

Speakers: Phil Brown, Counsel, Practice Management, Professional Development and Competence, The Law Society of Upper Canada

Michelle Lomazzo, Paralegal, Lomazzo Worker’s Compensation Appeals Professional Corporation Mark Senicar, Paralegal, SE-GA Workplace

Consulting Professional Corporation

September 12, 2017

4:30 p.m. to 6:30 p.m. Total CPD Hours = 2 h Professionalism

Webcast only

SKU# CLE17-0090101

Agenda 4:30 p.m. – 4:35 p.m. Welcome and Opening Remarks

ETHICAL ISSUES IN

WORKERS’ COMPENSATION LAW

FOR PARALEGALS

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4:35 p.m. – 4:55 p.m. The Update on Contingency Fees 4:55 p.m. – 5:00 p.m. Questions and Answers 5:00 p.m. – 5:15 p.m. Communication and Collegiality Between Licensees 5:15 p.m. – 5:20 p.m. Questions and Answers

5:20 p.m. – 5:35 p.m. Client Communications and Managing Client Expectations 5:35 p.m. – 5:40 p.m. Questions and Answers 5:40 p.m. – 5:55 p.m. Disclosure Requirements to the Tribunal

5:55 p.m. – 6:00 p.m. Questions and Answers 6:00 p.m. – 6:10 p.m. Managing Limitation Periods 6:10 p.m. – 6:15 p.m. Questions and Answers 6:15 p.m. – 6:25 p.m. Useful Practice Tools 6:25 p.m. – 6:30 p.m. Questions and Answers 6:30 p.m. Program Ends

September 12, 2017

SKU CLE17-0090101

Table of Contents TAB 1 Links to Paralegal Rules of Conduct and The Paralegal Professional Conduct Guidelines ........................................ 1 - 1 to 1 - 1

The Law Society of Upper Canada

TAB 2 Excerpts of Solicitors Act, (R.S.O. 1990, Chapter S.15), Agreements Between Solicitors and Clients ……..…….…..….… 2 - 1 to 2 - 5 (Reprinted with permission) Excerpts of Solicitors Act – Ontario Regulation 195/04, Contingency Fee Arrangements ………………………………………… 2 - 6 to 2 - 8

(Reprinted with permission)

TAB 3 Workplace Safety and Insurance Appeals Tribunal (WSIAT) References (Excerpts)

ETHICAL ISSUES IN

Workers’ Compensation Law

for Paralegals

WSIAT Practice Direction Code of Conduct for Representatives ........................ 3 - 1 to 3 - 2

(Reprinted with permission) WSIAT Practice Direction Time Extension Applications ..................................... 3 - 3 to 3 - 6

(Reprinted with permission) TAB 4 Workplace Safety & Insurance Board (WSIB) References (Excerpts)

Adjudicative Advice A Code of Conduct for Representatives Dealing with

WSIB situations ........................................................ 4 - 1 to 4 - 2 (Reprinted with permission) Appendices

Appendix A – Application of Time Limit Extension Criteria ..................................................................... 4 - 3 to 4 - 3 (Reprinted with permission)

Practice Guideline Code of Conduct for Representatives ........................ 4 - 4 to 4 - 4


Practice Guideline Time Limit to Object ................................................. 4 - 5 to 4 - 6


TAB 1

Links to Paralegal Rules of Conduct and The Paralegal Professional

Conduct Guidelines


September 12, 2017

ETHICAL ISSUES IN


for Paralegals

Links to Paralegal Rules of Conduct and The Paralegal Professional Conduct Guidelines


1. Paralegal Rules of Conduct 2. The Paralegal Professional Conduct Guidelines

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http://www.lsuc.on.ca/list.aspx?id=1072

http://www.lsuc.on.ca/with.aspx?id=2147502379

TAB 2

Excerpts of Solicitors Act, (R.S.O. 1990, Chapter S.15), Agreements Between Solicitors and

Clients

Excerpts of Solicitors Act - Ontario Regulation 195/04, Contingency Fee Agreements

© Queen’s Printer for Ontario, 2013

Reprinted with permission.

September 12, 2017

ETHICAL ISSUES IN


for Paralegals

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Solicitors Act

R.S.O. 1990, CHAPTER S.15

Consolidation Period: From December 12, 2013 to the e-Laws currency date.

Last amendment: 2013, c. 17, s. 27.

AGREEMENTS BETWEEN SOLICITORS AND CLIENTS

Definitions

15. In this section and in sections 16 to 33,

“client” includes a person who, as a principal or on behalf of another person, retains or employs or is about to retain or employ a solicitor, and a person who is or may be liable to pay the bill of a solicitor for any services; (“client”)

“contingency fee agreement” means an agreement referred to in section 28.1; (“entente sur des honoraires conditionnels”)

“services” includes fees, costs, charges and disbursements. (“service”) R.S.O. 1990, c. S.15, s. 15; 2002, c. 24, Sched. A, s. 1.

Agreements between solicitors and clients as to compensation

16. (1) Subject to sections 17 to 33, a solicitor may make an agreement in writing with his or her client respecting the amount and manner of payment for the whole or a part of any past or future services in respect of business done or to be done by the solicitor, either by a gross sum or by commission or percentage, or by salary or otherwise, and either at the same rate or at a greater or less rate than that at which he or she would otherwise be entitled to be remunerated. R.S.O. 1990, c. S.15, s. 16 (1).

Definition

(2) For purposes of this section and sections 20 to 32,

“agreement” includes a contingency fee agreement. 2002, c. 24, Sched. A, s. 2.

Approval of agreement by assessment officer

17. Where the agreement is made in respect of business done or to be done in any court, except the Small Claims Court, the amount payable under the agreement shall not be received by the solicitor until the agreement has been examined and allowed by an assessment officer. R.S.O. 1990, c. S.15, s. 17.

Opinion of court on agreement

18. Where it appears to the assessment officer that the agreement is not fair and reasonable, he or she may require the opinion of a court to be taken thereon. R.S.O. 1990, c. S.15, s. 18.

Rejection of agreement by court

19. The court may either reduce the amount payable under the agreement or order it to be cancelled and the costs, fees, charges and disbursements in respect of the business done to be assessed in the same manner as if the agreement had not been made. R.S.O. 1990, c. S.15, s. 19.

Agreement not to affect costs as between party and party

20. (1) Such an agreement does not affect the amount, or any right or remedy for the recovery, of any costs recoverable from the client by any other person, or payable to the client by any other person, and any such other person may require any costs payable or recoverable by the person to or from the client to be assessed in the ordinary manner, unless such person has otherwise agreed. R.S.O. 1990, c. S.15, s. 20 (1).

Idem

(2) However, the client who has entered into the agreement is not entitled to recover from any other person under any order for the payment of any costs that are the subject of the agreement more than the amount payable by the client to the client’s own solicitor under the agreement. R.S.O. 1990, c. S.15, s. 20 (2).

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http://www.e-laws.gov.on.ca/navigation?file=currencyDates&lang=en

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Awards of costs in contingency fee agreements

20.1 (1) In calculating the amount of costs for the purposes of making an award of costs, a court shall not reduce the amount of costs only because the client’s solicitor is being compensated in accordance with a contingency fee agreement. 2002, c. 24, Sched. A, s. 3.

Same

(2) Despite subsection 20 (2), even if an order for the payment of costs is more than the amount payable by the client to the client’s own solicitor under a contingency fee agreement, a client may recover the full amount under an order for the payment of costs if the client is to use the payment of costs to pay his, her or its solicitor. 2002, c. 24, Sched. A, s. 3.

Same

(3) If the client recovers the full amount under an order for the payment of costs under subsection (2), the client is only required to pay costs to his, her or its solicitor and not the amount payable under the contingency fee agreement, unless the contingency fee agreement is one that has been approved by a court under subsection 28.1 (8) and provides otherwise. 2002, c. 24, Sched. A, s. 3.

Claims for additional remuneration excluded

21. Such an agreement excludes any further claim of the solicitor beyond the terms of the agreement in respect of services in relation to the conduct and completion of the business in respect of which it is made, except such as are expressly excepted by the agreement. R.S.O. 1990, c. S.15, s. 21.

Agreements relieving solicitor from liability for negligence void

22. (1) A provision in any such agreement that the solicitor is not to be liable for negligence or that he or she is to be relieved from any responsibility to which he or she would otherwise be subject as such solicitor is wholly void. R.S.O. 1990, c. S.15, s. 22.

Exception, indemnification by solicitor’s employer

(2) Subsection (1) does not prohibit a solicitor who is employed in a master-servant relationship from being indemnified by the employer for liabilities incurred by professional negligence in the course of the employment. 1999, c. 12, Sched. B, s. 14.

Determination of disputes under the agreement

23. No action shall be brought upon any such agreement, but every question respecting the validity or effect of it may be examined and determined, and it may be enforced or set aside without action on the application of any person who is a party to the agreement or who is or is alleged to be liable to pay or who is or claims to be entitled to be paid the costs, fees, charges or disbursements, in respect of which the agreement is made, by the court, not being the Small Claims Court, in which the business or any part of it was done or a judge thereof, or, if the business was not done in any court, by the Superior Court of Justice. R.S.O. 1990, c. S.15, s. 23; 2006, c. 19, Sched. C, s. 1 (1).

Enforcement of agreement

24. Upon any such application, if it appears to the court that the agreement is in all respects fair and reasonable between the parties, it may be enforced by the court by order in such manner and subject to such conditions as to the costs of the application as the court thinks fit, but, if the terms of the agreement are deemed by the court not to be fair and reasonable, the agreement may be declared void, and the court may order it to be cancelled and may direct the costs, fees, charges and disbursements incurred or chargeable in respect of the matters included therein to be assessed in the ordinary manner. R.S.O. 1990, c. S.15, s. 24.

Reopening of agreement

25. Where the amount agreed under any such agreement has been paid by or on behalf of the client or by any person chargeable with or entitled to pay it, the Superior Court of Justice may, upon the application of the person who has paid it if it appears to the court that the special circumstances of the case require the agreement to be reopened, reopen it and order the costs, fees, charges and disbursements to be assessed, and may also order the whole or any part of the amount received by the solicitor to be repaid by him or her on such terms and conditions as to the court seems just. R.S.O. 1990, c. S.15, s. 25; 2002, c. 24, Sched. B, s. 46 (2); 2006, c. 19, Sched. C, s. 1 (1).

Agreements made by client in fiduciary capacity

26. Where any such agreement is made by the client in the capacity of guardian or of trustee under a deed or will, or in the capacity of guardian of property that will be chargeable with the amount or any part of the amount payable under the agreement, the agreement shall, before payment, be laid before an assessment officer who shall examine it and may disallow any part of it or may require the direction of the court to be made thereon. R.S.O. 1990, c. S.15, s. 26; 1992, c. 32, s. 26.

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Client paying without approval to be liable to estate

27. If the client pays the whole or any part of such amount without the previous allowance of an assessment officer or the direction of the court, the client is liable to account to the person whose estate or property is charged with the amount paid or any part of it for the amount so charged, and the solicitor who accepts such payment may be ordered by the court to refund the amount received by him or her. R.S.O. 1990, c. S.15, s. 27.

Purchase of interest prohibited

28. A solicitor shall not enter into an agreement by which the solicitor purchases all or part of a client’s interest in the action or other contentious proceeding that the solicitor is to bring or maintain on the client’s behalf. 2002, c. 24, Sched. A, s. 4.

Contingency fee agreements

28.1 (1) A solicitor may enter into a contingency fee agreement with a client in accordance with this section. 2002, c. 24, Sched. A, s. 4.

Remuneration dependent on success

(2) A solicitor may enter into a contingency fee agreement that provides that the remuneration paid to the solicitor for the legal services provided to or on behalf of the client is contingent, in whole or in part, on the successful disposition or completion of the matter in respect of which services are provided. 2002, c. 24, Sched. A, s. 4.

No contingency fees in certain matters

(3) A solicitor shall not enter into a contingency fee agreement if the solicitor is retained in respect of,

(a) a proceeding under the Criminal Code (Canada) or any other criminal or quasi-criminal proceeding; or

(b) a family law matter. 2002, c. 24, Sched. A, s. 4.

Written agreement

(4) A contingency fee agreement shall be in writing. 2002, c. 24, Sched. A, s. 4.

Maximum amount of contingency fee

(5) If a contingency fee agreement involves a percentage of the amount or of the value of the property recovered in an action or proceeding, the amount to be paid to the solicitor shall not be more than the maximum percentage, if any, prescribed by regulation of the amount or of the value of the property recovered in the action or proceeding, how ever the amount or property is recovered. 2002, c. 24, Sched. A, s. 4.

Greater maximum amount where approved

(6) Despite subsection (5), a solicitor may enter into a contingency fee agreement where the amount paid to the solicitor is more than the maximum percentage prescribed by regulation of the amount or of the value of the property recovered in the action or proceeding, if, upon joint application of the solicitor and his or her client whose application is to be brought within 90 days after the agreement is executed, the agreement is approved by the Superior Court of Justice. 2002, c. 24, Sched. A, s. 4.

Factors to be considered in application

(7) In determining whether to grant an application under subsection (6), the court shall consider the nature and complexity of the action or proceeding and the expense or risk involved in it and may consider such other factors as the court considers relevant. 2002, c. 24, Sched. A, s. 4.

Agreement not to include costs except with leave

(8) A contingency fee agreement shall not include in the fee payable to the solicitor, in addition to the fee payable under the agreement, any amount arising as a result of an award of costs or costs obtained as part of a settlement, unless,

(a) the solicitor and client jointly apply to a judge of the Superior Court of Justice for approval to include the costs or a proportion of the costs in the contingency fee agreement because of exceptional circumstances; and

(b) the judge is satisfied that exceptional circumstances apply and approves the inclusion of the costs or a proportion of them. 2002, c. 24, Sched. A, s. 4.

Enforceability of greater maximum amount of contingency fee

(9) A contingency fee agreement that is subject to approval under subsection (6) or (8) is not enforceable unless it is so approved. 2002, c. 24, Sched. A, s. 4.

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Non-application

(10) Sections 17, 18 and 19 do not apply to contingency fee agreements. 2002, c. 24, Sched. A, s. 4.

Assessment of contingency fee

(11) For purposes of assessment, if a contingency fee agreement,

(a) is not one to which subsection (6) or (8) applies, the client may apply to the Superior Court of Justice for an assessment of the solicitor’s bill within 30 days after its delivery or within one year after its payment; or

(b) is one to which subsection (6) or (8) applies, the client or the solicitor may apply to the Superior Court of Justice for an assessment within the time prescribed by regulation made under this section. 2002, c. 24, Sched. A, s. 4.

Regulations

(12) The Lieutenant Governor in Council may make regulations governing contingency fee agreements, including regulations,

(a) governing the maximum percentage of the amount or of the value of the property recovered that may be a contingency fee, including but not limited to,

(i) setting a scale for the maximum percentage that may be charged for a contingency fee based on factors such as the value of the recovery and the amount of time spent by the solicitor, and

(ii) differentiating the maximum percentage that may be charged for a contingency fee based on factors such as the type of cause of action and the court in which the action is to be heard and distinguishing between causes of actions of the same type;

(b) governing the maximum amount of remuneration that may be paid to a solicitor pursuant to a contingency fee agreement;

(c) in respect of treatment of costs awarded or obtained where there is a contingency fee agreement;

(d) prescribing standards and requirements for contingency fee agreements, including the form of the agreements and terms that must be included in contingency fee agreements and prohibiting terms from being included in contingency fee agreements;

(e) imposing duties on solicitors who enter into contingency fee agreements;

(f) prescribing the time in which a solicitor or client may apply for an assessment under clause (11) (b);

(g) exempting persons, actions or proceedings or classes of persons, actions or proceedings from this section, a regulation made under this section or any provision in a regulation. 2002, c. 24, Sched. A, s. 4.

Where solicitor dies or becomes incapable of acting after agreement

29. Where a solicitor who has made such an agreement and who has done anything under it dies or becomes incapable of acting before the agreement has been completely performed by him or her, an application may be made to any court that would have jurisdiction to examine and enforce the agreement by any person who is a party thereto, and the court may thereupon enforce or set aside the agreement so far as it may have been acted upon as if the death or incapacity had not happened, and, if it deems the agreement to be in all respects fair and reasonable, may order the amount in respect of the past performance of it to be ascertained by assessment, and the assessment officer, in ascertaining such amount, shall have regard, so far as may be, to the terms of the agreement, and payment of the amount found to be due may be ordered in the same manner as if the agreement had been completely performed by the solicitor. R.S.O. 1990, c. S.15, s. 29.

Changing solicitor after making agreement

30. If, after any such agreement has been made, the client changes solicitor before the conclusion of the business to which the agreement relates, which the client is at liberty to do despite the agreement, the solicitor, party to the agreement, shall be deemed to have become incapable to act under it within the meaning of section 29, and upon any order being made for assessment of the amount due him or her in respect of the past performance of the agreement the court shall direct the assessment officer to have regard to the circumstances under which the change of solicitor took place, and upon the assessment the solicitor shall be deemed not to be entitled to the full amount of the remuneration agreed to be paid to him or her, unless it appears that there has been no default, negligence, improper delay or other conduct on his or her part affording reasonable ground to the client for the change of solicitor. R.S.O. 1990, c. S.15, s. 30.

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Bills under agreement not to be liable to assessment

31. Except as otherwise provided in sections 16 to 30 and sections 32 and 33, a bill of a solicitor for the amount due under any such agreement is not subject to any assessment or to any provision of law respecting the signing and delivery of a bill of a solicitor. R.S.O. 1990, c. S.15, s. 31.

Security may be given to solicitor for costs

32. A solicitor may accept from his or her client, and a client may give to the client’s solicitor, security for the amount to become due to the solicitor for business to be transacted by him or her and for interest thereon, but so that the interest is not to commence until the amount due is ascertained by agreement or by assessment. R.S.O. 1990, c. S.15, s. 32.

Interest on unpaid accounts

33. (1) A solicitor may charge interest on unpaid fees, charges or disbursements, calculated from a date that is one month after the bill is delivered under section 2. R.S.O. 1990, c. S.15, s. 33 (1).

Interest on overpayment of accounts

(2) Where, on an assessment of a solicitor’s bill of fees, charges and disbursements, it appears that the client has overpaid the solicitor, the client is entitled to interest on the overpayment calculated from the date when the overpayment was made. R.S.O. 1990, c. S.15, s. 33 (2).

Rate to be shown

(3) The rate of interest applicable to a bill shall be shown on the bill delivered. 2009, c. 33, Sched. 2, s. 70.

Disallowance, variation on assessment

(4) On the assessment of a solicitor’s bill, if the assessment officer considers it just in the circumstances, the assessment officer may, in respect of the whole or any part of the amount allowed on the assessment,

(a) disallow interest; or

(b) vary the applicable rate of interest. 2009, c. 33, Sched. 2, s. 70.

Regulations

(5) The Lieutenant Governor in Council may make regulations establishing a maximum rate of interest that may be charged under subsection (1) or (2) or that may be fixed under clause (4) (b). 2009, c. 33, Sched. 2, s. 70.

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Solicitors Act

ONTARIO REGULATION 195/04

CONTINGENCY FEE AGREEMENTS

Consolidation Period: From October 1, 2004 to the e-Laws currency date.

No amendments.

This is the English version of a bilingual regulation.

Skip Table of Contents

CONTENTS

1. Signing and dating contingency fee agreement2. Contents of contingency fee agreements, general3. Contents of contingency fee agreements, litigious matters4. Matters not to be included in contingency fee agreements5. Contingency fee agreement, person under disability6. Contingency fee excludes costs and disbursements7. Contingency fee not to exceed damages8. Settlement or judgment money to be held in trust9. Disbursements and taxes10. Timing of assessment of contingency fee agreement

Signing and dating contingency fee agreement

1. (1) For the purposes of section 28.1 of the Act, in addition to being in writing, a contingency fee agreement,

(a) shall be entitled “Contingency Fee Retainer Agreement”;

(b) shall be dated; and

(c) shall be signed by the client and the solicitor with each of their signatures being verified by a witness. O. Reg. 195/04,s. 1 (1).

(2) The solicitor shall provide an executed copy of the contingency fee agreement to the client and shall retain a copy ofthe agreement. O. Reg. 195/04, s. 1 (2).

Contents of contingency fee agreements, general

2. A solicitor who is a party to a contingency fee agreement shall ensure that the agreement includes the following:

1. The name, address and telephone number of the solicitor and of the client.

2. A statement of the basic type and nature of the matter in respect of which the solicitor is providing services to theclient.

3. A statement that indicates,

i. that the client and the solicitor have discussed options for retaining the solicitor other than by way of acontingency fee agreement, including retaining the solicitor by way of an hourly-rate retainer,

ii. that the client has been advised that hourly rates may vary among solicitors and that the client can speak withother solicitors to compare rates,

iii. that the client has chosen to retain the solicitor by way of a contingency fee agreement, and

iv. that the client understands that all usual protections and controls on retainers between a solicitor and client, asdefined by the Law Society of Upper Canada and the common law, apply to the contingency fee agreement.

4. A statement that explains the contingency upon which the fee is to be paid to the solicitor.

5. A statement that sets out the method by which the fee is to be determined and, if the method of determination is as apercentage of the amount recovered, a statement that explains that for the purpose of calculating the fee the amount ofrecovery excludes any amount awarded or agreed to that is separately specified as being in respect of costs anddisbursements.

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6. A simple example that shows how the contingency fee is calculated.

7. A statement that outlines how the contingency fee is calculated, if recovery is by way of a structured settlement.

8. A statement that informs the client of their right to ask the Superior Court of Justice to review and approve of thesolicitor’s bill and that includes the applicable timelines for asking for the review.

9. A statement that outlines when and how the client or the solicitor may terminate the contingency fee agreement, theconsequences of the termination for each of them and the manner in which the solicitor’s fee is to be determined in theevent that the agreement is terminated.

10. A statement that informs the client that the client retains the right to make all critical decisions regarding the conductof the matter. O. Reg. 195/04, s. 2.

Contents of contingency fee agreements, litigious matters

3. In addition to the requirements set out in section 2, a solicitor who is a party to a contingency fee agreement made inrespect of a litigious matter shall ensure that the agreement includes the following:

1. If the client is a plaintiff, a statement that the solicitor shall not recover more in fees than the client recovers asdamages or receives by way of settlement.

2. A statement in respect of disbursements and taxes, including the GST payable on the solicitor’s fees, that indicates,

i. whether the client is responsible for the payment of disbursements or taxes and, if the client is responsible for thepayment of disbursements, a general description of disbursements likely to be incurred, other than relativelyminor disbursements, and

ii. that if the client is responsible for the payment of disbursements or taxes and the solicitor pays the disbursementsor taxes during the course of the matter, the solicitor is entitled to be reimbursed for those payments, subject tosection 47 of the Legal Aid Services Act, 1998 (legal aid charge against recovery), as a first charge on any fundsreceived as a result of a judgment or settlement of the matter.

3. A statement that explains costs and the awarding of costs and that indicates,

i. that, unless otherwise ordered by a judge, a client is entitled to receive any costs contribution or award, on apartial indemnity scale or substantial indemnity scale, if the client is the party entitled to costs, and

ii. that a client is responsible for paying any costs contribution or award, on a partial indemnity scale or substantialindemnity scale, if the client is the party liable to pay costs.

4. If the client is a plaintiff, a statement that indicates that the client agrees and directs that all funds claimed by thesolicitor for legal fees, cost, taxes and disbursements shall be paid to the solicitor in trust from any judgment orsettlement money.

5. If the client is a party under disability, for the purposes of the Rules of Civil Procedure, represented by a litigationguardian,

i. a statement that the contingency fee agreement either must be reviewed by a judge before the agreement isfinalized or must be reviewed as part of the motion or application for approval of a settlement or a consentjudgment under rule 7.08 of the Rules of Civil Procedure,

ii. a statement that the amount of the legal fees, costs, taxes and disbursements are subject to the approval of a judgewhen the judge reviews a settlement agreement or consent judgment under rule 7.08 of the Rules of CivilProcedure, and

iii. a statement that any money payable to a person under disability under an order or settlement shall be paid intocourt unless a judge orders otherwise under rule 7.09 of the Rules of Civil Procedure. O. Reg. 195/04, s. 3.

Matters not to be included in contingency fee agreements

4. (1) A solicitor shall not include in a contingency fee agreement a provision that,

(a) requires the solicitor’s consent before a claim may be abandoned, discontinued or settled at the instructions of theclient;

(b) prevents the client from terminating the contingency fee agreement with the solicitor or changing solicitors; or

(c) permits the solicitor to split their fee with any other person, except as provided by the Rules of Professional Conduct.O. Reg. 195/04, s. 4 (1).

(2) In this section,

“Rules of Professional Conduct” means the Rules of Professional Conduct of the Law Society of Upper Canada. O. Reg.195/04, s. 4 (2).

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Contingency fee agreement, person under disability

5. (1) A solicitor for a person under disability represented by a litigation guardian with whom the solicitor is entering intoa contingency fee agreement shall,

(a) apply to a judge for approval of the agreement before the agreement is finalized; or

(b) include the agreement as part of the motion or application for approval of a settlement or a consent judgment underrule 7.08 of the Rules of Civil Procedure. O. Reg. 195/04, s. 5 (1).

(2) In this section,

“person under disability” means a person under disability for the purposes of the Rules of Civil Procedure. O. Reg. 195/04,s. 5 (2).

Contingency fee excludes costs and disbursements

6. A contingency fee agreement that provides that the fee is determined as a percentage of the amount recovered shallexclude any amount awarded or agreed to that is separately specified as being in respect of costs and disbursements. O. Reg.195/04, s. 6.

Contingency fee not to exceed damages

7. Despite any terms in a contingency fee agreement, a solicitor for a plaintiff shall not recover more in fees under theagreement than the plaintiff recovers as damages or receives by way of settlement. O. Reg. 195/04, s. 7.

Settlement or judgment money to be held in trust

8. A client who is a party to a contingency fee agreement shall direct that the amount of funds claimed by the solicitor forlegal fees, cost, taxes and disbursements be paid to the solicitor in trust from any judgment or settlement money. O. Reg.195/04, s. 8.

Disbursements and taxes

9. (1) If the client is responsible for the payment of disbursements or taxes under a contingency fee agreement, a solicitorwho has paid disbursements or taxes during the course of the matter in respect of which services were provided shall bereimbursed for the disbursements or taxes on any funds received as a result of a judgment or settlement of the matter.O. Reg. 195/04, s. 9 (1).

(2) Except as provided under section 47 of the Legal Aid Services Act, 1998 (legal aid charge against recovery), theamount to be reimbursed to the solicitor under subsection (1) is a first charge on the funds received as a result of thejudgment or settlement. O. Reg. 195/04, s. 9 (2).

Timing of assessment of contingency fee agreement

10. For the purposes of clause 28.1 (11) (b) of the Act, the client or the solicitor may apply to the Superior Court of Justicefor an assessment of the solicitor’s bill rendered in respect of a contingency fee agreement to which subsection 28.1 (6) or (8)of the Act applies within six months after its delivery. O. Reg. 195/04, s. 10.

11. OMITTED (PROVIDES FOR COMING INTO FORCE OF PROVISIONS OF THIS REGULATION). O. Reg. 195/04, s. 11.

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TAB 3

Workplace Safety and Insurance Appeals Tribunal

(WSIAT) References (Excerpts)

© Queen’s Printer for Ontario, 2009. Reprinted with permission.

September 12, 2017

ETHICAL ISSUES IN


for Paralegals

WSIAT PRACTICE DIRECTION

WSIAT Code of Conduct for Representatives

WSIAT CODE OF CONDUCT FOR REPRESENTATIVES 1

1.0 This Code recognizes that any person representing a worker or an employer has certain obligations and responsibilities toward their client, the Tribunal, and the opposing party. The Code sets out, broadly, the standards of behaviour that the Tribunal expects from any representative.

1.1 This Code does not apply to friends or family who may be present as “moral support” or to assist in an informal and unpaid manner. However, all persons who participate in hearings before the Tribunal must be respectful to all participants and to Tribunal members and staff.

2.0 Standards of Conduct

2.1 Representatives, whether or not they are required to have a licence under the Law Society Act, are expected to:

● honestly represent their clients; they must not knowingly put forward any information known to be untrue, or assist or encourage a party to mislead or misrepresent the facts

● be knowledgeable concerning the relevant legislation (the Workers’ Compensation Act and/or the Workplace Safety and Insurance Act, 1997)

● be aware of and comply with the Tribunal’s practice directions and appeal procedures

● be prepared to present the case at hand; this includes carefully reviewing the case materials and relevant Board policies, and promptly consulting with their clients as to their directions and instructions so that they may comply with the Tribunal’s preparation and disclosure requirements

● throughout the appeal process to behave courteously and respectfully to the opposing party (if present), to any witnesses called during the proceedings, to the Vice-Chair or panel hearing the appeal and to Tribunal staff

● respect the confidentiality of information disclosed during the Tribunal’s processes and use that information for other purposes only with the consent of the parties and of the Tribunal

● refrain from behaviour that the Tribunal considers to be an abuse of process.

© Queen’s Printer for Ontario, 2009 3 - 1

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL PRACTICE DIRECTION

WSIAT CODE OF CONDUCT FOR REPRESENTATIVES 2

3.0 Remedies

3.1 If a representative refuses or fails to comply with the requirements of this Code, the Tribunal may make comment on or take official notice of such behaviour. In noting this behaviour, the Tribunal will remind the representative that such behaviour may result in remedial action, including a temporary or permanent suspension from acting as a representative at the Tribunal or a referral to the Law Society of Upper Canada.

3.2 If the conduct is serious, or if there is a pattern of behaviour that continues over time without the representative being able to provide a reasonable explanation for his/her behaviour, the Tribunal Chair may take remedial action, including a temporary or permanent suspension from appearing at the Tribunal or a referral to the Law Society of Upper Canada. The representative will be given notice and an opportunity to make submissions to the Tribunal Chair.

Effective date: July 1, 2014Workplace Safety and Insurance Appeals Tribunal

3 - 2 © Queen’s Printer for Ontario, 2009

WSIAT PRACTICE DIRECTION

Time Extension Applications

TIME EXTENSION APPLICATIONS 1

1.0 This Practice Direction:

● identifies the time limit for bringing an appeal to the Tribunal

● outlines how the Tribunal processes time extension applications

● identifies information that parties should include in a time extension application

● identifies Tribunal decisions to review before making a time extension application.

2.0 Time Limits for Appealing Decisions to the Tribunal

2.1 Under the Act, a notice of appeal must be filed with the Tribunal within six months of a final Board decision.1

2.2 For final Board decisions made before January 1, 1998, a notice of appeal must have been filed with the Tribunal by June 30, 1998.2

2.3 If a party wishes to appeal a Board decision to the Tribunal after the time limit has expired, s/he must file a time extension application with the Tribunal.

3.0 Tribunal Processing of Time Extension Applications

3.1 There are five steps in processing a time extension application:

The Tribunal identifies an appeal that arrives after the time limit has expired.

3.2 Tribunal staff identify when an appeal has been received after the time limit has expired. Generally, the Tribunal counts the six months from the date on the Board decision to the date the notice of appeal is received by the Tribunal.

3.3 Where there is a Board decision and a Board reconsideration of that decision, the date of the original decision is generally used. However, where the Board has considered significant new evidence on a reconsideration or has changed the result of the original decision, the date of the reconsideration decision will be used.

1 See section 125(2) of the Workplace Safety and Insurance Act.

2 See section 112(3) of the Workplace Safety and Insurance Act.




The Tribunal asks for a time extension application.

3.4 If the Tribunal receives a notice of appeal more than six months after the date of the Board decision, it will send a letter stating that the notice was received late, and ask that a time extension application be filed within one month.

Sending the Tribunal a time extension application

3.5 A party who wants a time extension must fill out a time extension application.

3.6 The application includes:

● the completed Notice of Appeal form

● the applicant’s letter explaining why the appeal was not filed on time and why a time extension should be granted.

3.7 If the party does not file a time extension application within one month after the Tribunal requests it, the Tribunal closes the time extension file and will not consider the appeal. In extraordinary circumstances the Tribunal may extend the time for filing the time extension application.

The Tribunal asks other parties to respond to the time extension application.

3.8 When a time extension application is received, the Tribunal notifies other parties of the application and asks them to respond within one month.

The Tribunal decides the time extension application.

3.9 A Tribunal Vice-Chair decides the time extension application. Normally, there is not an oral hearing. The Vice-Chair bases the decision on the correspondence on file with the Tribunal, including the application and submissions. A copy of this correspondence is provided to the parties prior to inviting their time extension submissions.

4.0 Information to Include in a Time Extension Application

4.1 Parties should attach all relevant information that they want the Tribunal Vice-Chair to consider because only the information sent in will be reviewed. The




Tribunal may identify previously submitted appeal information but does not review its files to see if there is material which is relevant to a time extension. The Tribunal also does not order Board files for time extension applications. Any documents from a Board file or Tribunal file should be attached to the application or response.

4.2 If any of the following information is available, it should be included in the time extension application:

● an explanation of why the Notice of Appeal was not filed in time

● evidence of earlier filing of the appeal (e.g. a fax receipt or letter)

● evidence that shows the applicant intended to appeal before the time limit ended (e.g. notice of appeal mistakenly sent to the Board rather than the Tribunal)

● unusual circumstances where the applicant was unaware of the time limit or was prevented from meeting the time limits (e.g. very serious illness or family circumstances)

● unusual delays (e.g. a significant delay in receiving the Board decision) or other Board matters that are relevant to the timing of the appeal to the Tribunal

● requests to the Board to reconsider the decision (especially if it was made within six months of the original decision).

4.3 If any of the following apply, they should be included in the application or submissions:

● whether the issue is so connected to another appeal that the Tribunal cannot reasonably decide the other appeal without considering it (e.g. the “whole person” concept applies, cross appeals)

● whether a refusal to hear the appeal could result in a substantial miscarriage of justice due to defects in prior process or clear and manifest errors

● comments about efforts made to file the appeal on time




● whether there is prejudice to a party (e.g. a witness is no longer available to testify)

● whether the case is so old that it cannot be reasonably decided.

4.4 The factors the Tribunal considers in determining a time extension application are set out in numerous WSIAT decisions, available on the Tribunal’s website (www.wsiat.on.ca) or from the Ontario Workplace Tribunals Library.3

Effective date: July 1, 2014Workplace Safety and Insurance Appeals Tribunal

3 See Decision Nos. 1493/98I, 1522/98I2 and 248/99I.


TAB 4

Workplace Safety & Insurance Board (WSIB) References

(Excerpts)

© 1998-2016, Workplace Safety and Insurance Board of Ontario. Reprinted with permission.

September 12, 2017

ETHICAL ISSUES IN


for Paralegals

Background

It is a well accepted principle that injured workers and employers have the right to be represented by an individual of their choice in their dealings with the WSIB. The WSIB deals with a great number of representatives at all levels of the adjudication process. In the Appeals area, for example, over 80% of the parties are represented.

Representatives range from highly trained and regulated groups such as lawyers, worker advisors and employer advisors, to independent consultants whose skill, knowledge and profession-alism varies greatly and whose behav-iour is unregulated. Although most representatives behave in a professional manner, a small number do not and to date a concerted effort to deal with such representatives has not occurred.

Some representatives behave in an abusive and harassing manner towards WSIB staff and make false and mislead-ing accusations about the WSIB. In addition, some representatives know-ingly provide false information to the WSIB. These kinds of inappropriate behaviour are detrimental to the fair and effi cient administration of the Act, undermine service delivery to all parties and negatively affect the security and working conditions of WSIB staff.

Authority

Section 131 (1) of the Workplace Safety and Insurance Act gives the WSIB the authority to determine its own practice

and procedures. That authority is broad enough to permit the WSIB to set reasonable rules for the conduct of representatives and to establish a process to enforce those rules.

Code Of Conduct

It is reasonable to expect representatives to behave in an appropriate manner in their dealings with WSIB staff. Behav-iour which is considered inappropriate includes the following:

• Making false or misleading statementsabout the actions of the WSIB and itsstaff;

• Speaking or writing to WSIB staff inan abusive, harassing or threateningtone or manner;

• Providing WSIB staff with informa-tion relating to a claim or accountwhich the representative knows, orought to know, is false or misleading.

Protocols For Enforcing Code Of Conduct

Where staff believe that a representative has violated the Code of Conduct by acting in an inappropriate manner, particulars of that behaviour will be presented to their manager. Where the manager is satisfi ed that the Code of Conduct has been violated, they will write to the representative advising of the Code of Conduct and the inap-propriateness of the behaviour. The letter will also put the representative on notice that any subsequent viola-tion will result in the WSIB no longer

Adjudicative Advice A Code of Conduct for Representatives Dealing with WSIB situations

Notice: This document is intended

to assist WSIB decision-makers in

reaching consistent decisions in

similar fact situations and to sup-

plement applicable WSIB policies

and guidelines as set out in the

Operational Policy Manual (OPM).

This document is not a policy and

in the event of a confl ict between

this document and an OPM policy

or guideline, the decision-maker

will rely on the latter.


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recognizing the status of the individual as a representative for the purpose of dealing with the WSIB.

If a further incident of inappropriate behaviour occurs after the representative has been put on notice, the manager will bring the particulars to the attention of their business unit’s Director. The Director, along with 2 other Directors chosen by the business unit Director, will form a Panel to review the behaviour. Where the Panel agrees that the behaviour violates the Code of Conduct, the business unit Director will issue notice to the individual that their status as a representative will no longer be recognized by the WSIB. Notice will also be given to the workers and employers who are known to be represented by this individual and to other areas of the WSIB where decision-mak-ing occurs. This sanction shall be honoured throughout the WSIB from the date notifi cation is received. As a courtesy, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) will also be notifi ed.

Individuals whose status to act as a representa-tive is no longer recognized will have no authority to receive information about a claim or account, communicate with WSIB staff or otherwise make submissions or request WSIB action on behalf of a worker or an employer. Effectively, therefore, WSIB staff will no longer deal with the individual.

The authority to lift a WSIB sanction against a representative lies with the Panel of Directors which recommended the sanction, or such alternate(s) where one or more of the original Panel is unavailable, and will only occur where they are satisfi ed that no future act of miscon-duct is likely to occur. If a sanction is lifted and there is a subsequent instance of inappropriate conduct, as determined by the Panel, a letter will be issued to the representative advising that the sanction is now being imposed on a permanent basis. Notifi cation of changes to a representative’s status will be communicated to the individual’s clients, throughout the WSIB and to WSIAT.

May 10, 2000

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61APPEALS SERVICES DIVISION Practice & ProceduresEffective January 1, 2017

© 1998-2016, Workplace Safety and Insurance Board of Ontario.

A P P E N D I C E S

APPENDIX A APPLICATION OF TIME LIMIT EXTENSION CRITERIA

Criteria between January 1, 2008 and January 31, 2013 (For Employer Account Appeals this applies from January 1, 2008 to June 30, 2016)

• The length of the delay. Broad discretion to extend will be applied where appeals are brought withinone year of the date of the decision. Additional criteria to be considered for longer delays include: – Serious health problems (experienced by the party or the party’s immediate family) or the partyleaving the province/country due to the ill health or death of a family member;

– Whether there was actual notice of the time limit. This acknowledges that post ’98 decisionsspecifically refer to the time limits but pre’98 decisions do not;

– Whether there are other issues in the appeal which were appealed with the time limits and which areclosely related to the issues not appealed within the time limits;

– The significance of the issue in dispute; – Whether the party was able to understand the time limit requirements.

• All decisions to extend time limits will be based on the merits and justice of the case.

Criteria between February 1, 2013 and June 30, 2016• Criteria to be considered for objections beyond the statutory time limit include:

• Whether there was actual notice of the time limit. This acknowledges that as of January 1, 1998,decisions specifically refer to the time limits but prior to that date, they do not;

• Serious health problems (experienced by the party or the party’s immediate family) or the party leavingthe province/country due to the ill health or death of a family member;

• An organic or non-organic condition that prevents the worker from understanding the time limit and/ormeeting the time limit;

• Whether there are other issues in the appeal that were appealed within the time limit which are sointertwined that the issue being objected to within the time limit cannot reasonably be addressedwithout waiving the time limit to appeal on the closely related issue.

All decisions to extend the time limits will be based on the merits and justice of the case.

Criteria as of July 1, 2016 (including Employer Account Appeals)Criteria to be considered for objections beyond the statutory time limit include:




• Whether there is clear documentation in the claim file that the party was disputing the issue(s) in aparticular decision even though a formal notice of objection was not filed (direct correspondence ormemo outlining a telephone discussion about the particular issue);

• Whether there are other issues in the appeal that were appealed within the time limit which are sointertwined that the issue being objected to within the time limit cannot reasonably be addressedwithout waiving the time limit to appeal on the closely related issue.

Reprinted with permission.

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P R A C T I C E G U I D E L I N E

APPEALS SERVICES DIVISION Practice & ProceduresEffective January 1, 2017

PRACTICE GUIDELINE: Code of Conduct for RepresentativesRepresentatives are expected to make good faith attempts to resolve issues in dispute at the Operations level and to be prepared and ready to proceed once an appeal is registered in the ASD.

The ASD recognizes and enforces the Code of Conduct established by the WSIB for representatives. The WSIB Code of Conduct can be found on the WSIB’s website at www.wsib.on.ca.

ASD Code of Conduct for Representatives

As there is greater interaction with representatives at the ASD level, more details about the expected standard of behavior have been developed. Representatives at the ASD level are expected to:

• Be aware of and comply with the Appeals Services Division Practice & Procedures document;

• Be prepared to comply with the disclosure requirements set out in the Appeals Services Division Practice& Procedures document;

• Be courteous and respectful to the opposing party, witnesses, and ASD staff;

• Respect the confidentiality of the file information and related information submitted in the appealsprocess;

• Respect the privacy of the individuals involved in the appeals process;

• Provide submissions/responses by date required/requested; and

• Be on time when attending oral hearings.

Please also see the Law Society of Upper Canada Rules of Professional Conduct at www.lsuc.on.ca.


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PRACTICE GUIDELINE: Time Limit to Object

Overview

Section 120 of the WSIA establishes time limits to object to Board decisions. There is a 30-day time limit to object to a WSIB decision about Return to Work, Re-employment, or a Labour Market Re-entry (now work reintegration) plan made on or after January 1, 1998. There is a six-month time limit to object to any other WSIB decision made on or after January 1, 1998, including employer account decisions.

The WSIB will default to the 6 month time limit in a situation where a party is objecting to two different decisions with two different time limits (e.g., work transition (WT) issue with a 30 day time limit and a loss of earnings (LOE) issue with a time limit of 6 months).

Completing the Intent to Object Form

When the WSIB issues a decision, the WPP must be advised in a decision letter of the applicable time limits for objecting. In order to meet the Section 120 statutory requirements, the WSIB must receive a completed Intent to Object Form, or a letter of objection, by the time limit date set out in the decision letter.

If the party or parties do not confirm a desire to proceed, no further action will be taken.

If the case is brought forward for review after the appeal time limit has expired, the WSIB has the authority to extend the time limit in appropriate cases. Requests for extensions will be considered by decision makers who will notify the party in writing of the outcome of the review.

Appealing Time Limit Rulings

If the party or parties indicate a desire to appeal the time limit ruling, the matter will be referred by the Manager in Operations directly to a Manager in the ASD for priority assignment to a Registrar.

The completion of an Intent to Object Form on the time limit to appeal issue is not required, but both parties must be notified of the referral. The Operations decision maker has to complete an Appeals Referral Memo and place it on the file. Once the time limit appeal has been received in the ASD, the Coordinator will send/fax a letter to the objecting party giving 30 days (plus 5 days for mailing) to send in a submission on the issue.

The Registrar will rule on the time limit issue within 30 days of receiving submissions from the parties.

Criteria for Extending Time Limit to Object

Criteria to be considered for objections beyond the statutory time limit include:




• Whether there is clear documentation in the claim file that the party was disputing the issue(s) in aparticular decision even though a formal notice of objection was not filed (direct correspondence ormemo outlining a telephone discussion about the particular issue);


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• Whether there are other issues in the appeal that were appealed within the time limit which are so intertwined that the issue being objected to within the time limit cannot reasonably be addressed without waiving the time limit to appeal on the closely related issue.

If the extension is granted, the file will be returned to Operations and the usual access/Appeal Readiness Form process will be initiated for the substantive issue. See PRACTICE GUIDELINE on INTENT TO OBJECT – HANDLING BY OPERATIONS on page 4.

NOTE: the criteria related to the extension of the time limit to object that were in place at the time of the operating area decision on the time limit, should be applied. Appendix A includes the criteria and relevant time frames associated with those criteria.

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