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Regina v. Lawrie and Pointts Ltd.

59 O.R. (2d) 161
[1987] O.J. No. 225
ONTARIO COURT OF APPEAL DUBIN, BLAIR AND THORSON JJ.A.
12TH MARCH 1987.

Professions - Barristers and solicitors - Unauthorized practice - Law Society Act providing that "except where otherwise provided by law" no person other than member of society may practise as barrister or solicitor - Provincial Offences Act providing that defendant may appear by counsel or "agent" - Latter provision constituting exception provided by law to prohibition in Law Society Act - Exception available to person carrying on business of appearing on regular basis in Provincial Offences Court as agent for persons charged with traffic offences notwithstanding prohibition in Solicitors Act against person other than solicitor recovering fee - Statutes to be read in pari materia - Prohibition in Solicitors Act applicable only to unauthorized practice - Law Society Act, R.S.O. 1980, c. 233, s. 50 - Provincial Offences Act, R.S.O. 1980, c. 400, ss. 2, 51 - Solicitors Act, R.S.O. 1980, c. 478, s. 1.

Statutes - Interpretation - Rules of interpretation - In pari materia rule - Law Society Act providing that "except where otherwise provided by law" no person other than member of society may practise as barrister or solicitor - Provision in Provincial Offences Act permitting defendant to appear by counsel or "agent" constituting exception - Exception available to person carrying on business of appearing on regular basis in Provincial Offences Court as agent for persons charged with traffic offences notwithstanding prohibition in Solicitors Act against person other than solicitor accepting fee for legal services - Law Society Act and Solicitors Act to be read in pari materia - Provisions to be read together so as to avoid conflict and to produce sensible and workable legislative schemes - Law Society Act, R.S.O. 1980, c. 233, s. 50 - Provincial Offences Act, R.S.O. 1980, c. 400, ss. 2, 51 - Solicitors Act, R.S.O. 1980, c. 478, s. 1.

A person carrying on a business of acting as an agent for persons charged with traffic offences under the Highway Traffic Act, R.S.O. 1980, c. 198, as permitted by s. 51(1) of the Provincial Offences Act, R.S.O. 1980, c. 400, cannot be prosecuted for acting as a barrister or solicitor under s. 50 of the Law Society Act, R.S.O. 1980, c. 233. Section 50(1) of the Law Society Act, provides that "except where otherwise provided by law" no person other than a member of the law society shall act as a barrister or solicitor. Section 51(1) of the Provincial Offences Act which allows a person charged with a provincial offence to appear by agent constitutes an exception within the meaning of s. 50(1) of the Law Society Act. This is the case notwithstanding s. 1 of the Solicitors Act, R.S.O. 1980, c. 478, which provides that "if a person, unless himself a party to the proceeding, commences, prosecutes or defends in his own name, or that of any other person, any action or proceeding without having been admitted and enrolled as a solicitor, he is incapable of recovering any fee, reward or disbursements on account thereof, and is guilty of a contempt of the court in which such proceeding was commenced, carried on or defended and is punishable accordingly". The Law Society Act and the Solicitors Act are statutes in pari materia. Having regard to the history of the Law Society Act, the Solicitors Act and the Barristers Act, it is apparent that the Legislature must have intended these statutes to be read together so as to avoid conflict and to produce a sensible and workable legislative scheme. A substantial revision of these statutes had the effect of transferring control of unauthorized practice to the Law Society Act. Section 1 of the Solicitors Act is merely an ancillary provision and does not prohibit unauthorized practice itself. It merely provides penalties additional to those prescribed in s. 50 of the Law Society Act by preventing recovery of fees and exposing unauthorized persons to the charge of contempt of court. Section 1 of the Solicitors Act cannot, however, stand by itself. The penalties it provides can only apply to unauthorized practice as defined by s. 50(1) of the Law Society Act and as a result does not extend to agents whose activities are excepted as being "otherwise provided by law". This interpretation is fortified by consideration of s. 1 of the Solicitors Act itself. The Act now deals entirely with solicitor-and-client accounts and it is logical for it to include the prohibition against charges for unauthorized practice. The other penalty provided for unauthorized practice contained in s. 1 is that of contempt of court but it would be inconceivable that agents acting under the authority of other statutes could be held in contempt of court.

Cases referred to

R. v. Duggan (1976), 31 C.C.C. (2d) 167; R. ex rel. Smith v. Ott, [1950] O.R. 493, 97 C.C.C. 302, [1950] 4 D.L.R. 426; R. ex rel. Smith v. Mitchell, [1952] O.R. 896, 104 C.C.C. 247, [1953] 1 D.L.R. 700; Capital Grocers Ltd. v. Registrar of Land Titles, [1953] 1 D.L.R. 318, 7 W.W.R. (N.S.) 315; Walker v. The King (1939), 71 C.C.C. 305, [1939] 2 D.L.R. 353, [1939] S.C.R. 214

Statutes referred to

APPEAL by the Law Society of Upper Canada from the judgment of Moore D.C.J., 58 O.R. (2d) 535, 29 C.C.C. (2d) 160, dismissing its appeal from the accused's acquittal on charges of unlawfully acting as a barrister or solicitor contrary to s. 50 of the Law Society Act.

B.H. Kellock, Q.C., for the Crown, appellant. E.P. Polten, for respondents.

The judgment of the court was delivered by

BLAIR J.A.: - The question in this case is whether a paid agent acting for persons charged with traffic offences under the Highway Traffic Act, R.S.O. 1980, c. 198, pursuant to s. 51(1) of the Provincial Offences Act, R.S.O. 1980, c. 400, can be prosecuted for acting as a barrister or solicitor under s. 50(2) of the Law Society Act, R.S.O. 1980, c. 233.

The respondents, Brian Lawrie (Lawrie) and Pointts Limited (the Company) were separately charged in a private prosecution initiated by the Law Society of Upper Canada with unlawfully acting as barristers or solicitors contrary to s. 50 of the Law Society Act.(Pointts is an acronym for Provincial Offences Information and Traffic Ticket Service.) The charges were dismissed by His Honour Judge Kerr of the Provincial Court whose decision was affirmed on appeal by the Honourable Judge Moore of the District Court [58 O.R. (2d) 535, 29 C.C.C. (3d) 160]. This appeal is brought pursuant to leave granted by a judge of this court under s. 114 of the Provincial Offences Act.

Lawrie is not a barrister or solicitor. He is a retired policeman with considerable experience in the conduct of traffic cases under the Provincial Offences Act. He incorporated the company for the purpose of representing persons charged with traffic offences under the Highway Traffic Act. Each customer or client is required to sign a form appointing the company as agent to act on his or her behalf "within the meaning of the Provincial Offences Act".

Lawrie controls the company. At the time of trial, two former police officers were also employed by the company and represented its clients in proceedings under the Provincial Offences Act.

The learned trial judge found that both respondents had acted as barristers or solicitors within the meaning of s. 50(1) of the Law Society Act. This finding was challenged by the respondents in this appeal but, since it is amply supported by the evidence, it should not be disturbed. The respondents were charged only with acting as barristers or solicitors and not with holding themselves out or practising as barristers or solicitors which are the other activities prohibited by s. 50(1).

Nevertheless, the trial judge acquitted both respondents. He held that the Provincial Offences Act permitted them to act as agents and that, consequently, they fell within the exceptions that were "otherwise provided by law" in s. 50(1) of the Law Society Act. He said [at p. 537 O.R., p. 162 C.C.C.]:

Judge Moore, affirming the trial judge's decision, went further and concluded that a new trade or profession of paralegals had been created by the Provincial Offences Act. After reviewing a number of statutes, which authorized the appearance of agents, he had this to say [at pp. 542-3 O.R., pp. 167-8 C.C.C.]:

Mr. Kellock, in his able argument, contended that the Provincial Offences Act, by permitting accused persons to be represented by agents, did not thereby confer upon agents, who were not qualified as barristers or solicitors, the authority to carry on the business of advising and defending accused persons and to charge them for so acting. He, therefore, argued that s. 51 of the Provincial Offences Act did not constitute an exception to s. 50(1) of the Law Society Act and, additionally, did not constitute an implied amendment to s. 1 of the Solicitors Act, R.S.O. 1980, c. 478, to which I will refer later. In his submission, the hallmark of the profession of barristers and solicitors is the provision of legal advice and representation on a repetitive basis and the charging of fees for such services. He maintained that the agent whose appearance was authorized by the Provincial Offences Act was not intended to be a person engaged in the business of representation for a fee. Rather, the agent was intended by the legislation to be a relative or friend who spoke for a party without remuneration.

The Provincial Offences Act, which governs the prosecution of provincial offences created by the Legislature, was enacted in 1979 by 1979 (Ont.), c. 4. It replaced the Summary Convictions Act, R.S.O. 1970, c. 450, which, in large part, incorporated the provisions of Part XXIV of the Criminal Code, R.S.C. 1970, c. C-34, dealing with summary convictions. The Criminal Code since 1906 (R.S.C. 1906, c. 146, s. 720) has permitted defendants to appear through agents in summary conviction proceedings as is now provided in s. 735(2) of the Code.

Appearances through agents, who are not barristers or solicitors, are permitted by other statutes. These include the Landlord and Tenant Act, R.S.O. 1980, c. 232, s. 118(1), dealing with residential tenancies; the Courts of Justice Act, 1984 (Ont.), c. 11, s. 79, dealing with the Provincial Court (Civil Division) which is now responsible for small claims; the Construction Lien Act, 1983 (Ont.), c. 6, s. 69(5), dealing with lien claims not exceeding $200; the Coroners Act, R.S.O. 1980, c. 93, s. 41(2), dealing with coroners' inquests; and the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, s. 23(3), dealing with appearances before administrative tribunals. With the exception of the Statutory Powers Procedure Act, these statutes permit the employment of agents only in relatively minor matters. All the statutes except the Construction Lien Act, 1983 and the Coroners Act contain a provision similar to s. 51(3) of the Provincial Offences Act empowering the court or tribunal to bar any agent who is found not competent to represent or advise the person for whom the agent appears or who does not understand and comply with the duties and responsibilities of an agent.

There are other cases where persons, who are not qualified lawyers, are authorized by statute or permitted in practice to act as counsel or solicitors. The Crown makes use of agents under the Crown Attorneys Act, R.S.O. 1980, c. 107, s. 7, which provides for the appointment of provincial prosecutors under the Provincial Offences Act who are not members of the bar. The Police Act, R.S.O. 1980, c. 381, s. 57, enables police officers to act as prosecutors and they are considered agents under s. 1(h) of the Provincial Offences Act. Students are employed by the Ministry of the Attorney-General primarily to prosecute traffic offences under the Provincial Offences Act, as are students-at-law articled with the Attorney-General's office. Law students, who have completed one year of their law course, may appear in some legal aid matters handled by Student Legal Aid Societies: R.R.O. 1980, Reg. 575, s. 80, under the Legal Aid Act, R.S.O. 1980, c. 234. Under para. 12 of the rules of the law society made pursuant to s. 62(1) of the Law Society Act, articled students-at-law are permitted to appear in various proceedings.

Rule 20 of the Law Society's Rules of Professional Conduct permits delegation of many tasks by lawyers to employees who are not lawyers or articled students. The delegable tasks include conveyancing, drafting corporate and commercial documents, administration of estates and trusts, and research and preparation of documents in litigation. The rule states that "[g]enerally speaking a non-lawyer shall not attend on examinations or in court except in support of a lawyer also in attendance". The rule makes an exception for appearances by law clerks employed by only one lawyer or law firm in a variety of cases. These include appearances as agents where statutes or regulations permit non-lawyers to appear and on routine adjournments in Provincial Court. Law clerks may also attend on routine examinations in uncontested matters, ex parte or consent orders before a master and the taxation of costs.

The common thread that runs through these examples of employment of law students and non-lawyers is that their work is done under the direction and supervision of lawyers who are responsible to clients and the public for the work's proper performance. Moreover, the work is done by salaried employees whose remuneration, unlike that of lawyers, is fixed and not related to fees charged for specific services.

The position of the respondents in this case is different. They operate their own business independent of any direction or supervision by qualified lawyers. The respondents, when acting as agents under the Provincial Offences Act, perform the same services as lawyers and, like them, are paid on a fee-for-service basis. They are not barred, as the legal profession is, from carrying on their business through corporations. As recently as 1980 "The Report of the Professional Organizations Committee", April, 1980, at p. 69, reported that law clerks appearing before the committee did not seek independent status: see also "The Market for Legal Services: Paraprofessionals and Specialists", Working Paper No. 10 of the Professional Organizations Committee. It is the growth since that report of independent paralegal businesses carrying on lawyer-like activities free from the direction and supervision of the legal profession that elevates the public importance of this case.

Agents have been authorized to act in some proceedings for more than a century. They were first permitted in small claims matters before Division Courts in 1872: "An Act to empower all persons to appear on behalf of others in the Divisional Courts in the Province of Ontario", 1872 (Ont.), c. 8, s. 1, and in mechanics' lien proceedings in 1910: Mechanics and Wage-Earners Lien Act, 1910 (Ont.), c. 69, s. 37(7). As previously mentioned they have acted in summary conviction proceedings under the Criminal Code since 1906. Their appearance before coroners' inquests was authorized by the Coroners Act, 1972 (Ont.), c. 98, s. 33, and their limited participation in proceedings under the Landlord and Tenant Act dates from 1975: Landlord and Tenant Amendment Act, 1975 (Ont.) (2nd Sess.), c. 13, s. 6. The first statutory reference to their appearance before administrative tribunals was in the Statutory Powers Procedure Act, 1971 (Ont.), c. 47, s. 23(3), but it is known that laymen appeared as advocates before such tribunals prior to that date.

Despite the long participation of agents in judicial proceedings, they have been the subject of only one reported decision and little has been written about them. In R. v. Duggan (1976), 31 C.C.C. (2d) 167, this court held that right of audience of an agent was confined to the court which was specifically authorized by statute. Thus an agent authorized by s. 735(2) of the Criminal Code to appear in a summary conviction court was not entitled to appear on an appeal from conviction before the County Court. MacKinnon A.C.J.O. stated at p. 169:

One is entitled, in my opinion, to take judicial notice of the extent of the business carried on in this province by persons acting as agents under the Provincial Offences Act quite apart from those performing other paralegal services. While it is the view of the law society that agents are not entitled to operate a business for reward, the obvious fact is that they do and have done so for many years. Writing in 1971 about encroachments on the legal profession, Mark M. Orkin observed: "[T]he 'small claims' field of practice is no longer financially attractive to most lawyers, hence the emergence of division court 'agents', non-lawyers who openly carry on this type of business." (Orkin, Mark M. "Professional Autonomy and the Public Interest: A Study of the Law Society of Upper Canada", D.Jur. dissertation, York University, 1971 at p. 182.)

The hiring of agents as a common practice in provincial offence proceedings is acknowledged in the leading textbook on the Provincial Offences Act: see Drinkwalter and Ewart, Ontario Provincial Offences Procedure (1980), note 46 at p. 57. It is beyond dispute that paid agents are employed in proceedings before administrative tribunals or under the Construction Lien Act. The fact that agents do carry on business for reward does not, of course, determine the legal question whether they are authorized to do so under the Law Society Act. It does, however, place this case in its proper context. It is not an isolated occurrence but appears rather to be an example of a reasonably common practice.

It is not the role of this court to determine whether, as a matter of policy, the operations of the respondents serve the public interest. It is obvious from the business they have attracted that they are providing an unmet need for service to the public. While no reflection of any kind was made in this case on the respondents, there must be concern about the absence of any control over the education, qualification, competence and probity of all agents. They deal with serious matters because penalties of up to six months imprisonment apply to some offences under the Highway Traffic Act. No provision exists for disciplining or supervising agents and protecting the public from financial loss arising from the improper performance of their responsibilities by way of an insurance scheme like that of the law society.

It has been observed many times that the prohibition against the unauthorized practice of law is not merely to protect qualified lawyers from infringement of their right to practise their profession. Its primary purpose is to protect the public as Robertson C.J.O. stated in R. ex rel. Smith v. Ott, [1950] O.R. 493 at p. 496, 97 C.C.C. 302 at p. 302, [1950] 4 D.L.R. 426 at p. 426:

See also R. ex rel. Smith v. Mitchell, [1952] O.R. 896 at p. 903, 104 C.C.C. 247 at p. 250, [1953] 1 D.L.R. 700 at p. 703, per Laidlaw J.A. It is the responsibility of the Legislature to resolve these issues of policy. The task of this court is to determine whether, on a proper construction of the relevant statutes, they prohibit what the respondents were doing.

If only s. 50 of the Law Society Act had to be considered, there would be little difficulty in deciding that the respondents are not prohibited from carrying on the business of acting as agents for a fee under the Provincial Offences Act. I can find nothing in the Act that limits the exception in s. 50 of the Law Society Act of persons "otherwise authorized" to friends and relatives acting as agents without remuneration. Absent a specific limitation to this effect in the Law Society Act, the court could not read such a restriction into the statute.

The Law Society Act, however, is not the only statute to be considered. Under the heading of "Unauthorized Practice" s. 1 of the Solicitors Act provides:

I accept Mr. Kellock's argument that the Law Society Act and the Solicitors Act are statutes in pari materia and that they must be read together so as to avoid conflict between their provisions: Capital Grocers Ltd. v. Registrar of Land Titles, [1953] 1 D.L.R. 318, 7 W.W.R. (N.S.) 315 (Sask. C.A.). Both s. 50 of the Law Society Act and s. 1 of the Solicitors Act deal with solicitors with what might appear to be incongruous results. Section 50 of the Law Society Act appears to permit the respondents to act as solicitors when employed as agents under the Provincial Offences Act but s. 1 of the Solicitors Act appears to prevent them from being paid for their services. Since the respondents were charged with acting as solicitors, the appellant's argument was that they were in violation of the Solicitors Act because it provided for no exceptions and, hence, they were not protected by the exception in s. 50 of the Law Society Act.

Two answers were given to this argument in the courts below neither of which, in my respectful opinion, answers Mr. Kellock's argument. Provincial Judge Kerr held that s. 1 of the Solicitors Act, to the extent it affected agents, was repealed by implication by the Provincial Offences Act which was enacted later. This is not a case where any reliance can be placed on the presumption that a later statute might revoke an earlier one because the provisions for representation by agents in the Provincial Offences Act continues the similar provision in the Criminal Code which applied to provincial offences. District Court Judge Moore stressed that the charge had been laid under the Law Society Act and not the Solicitors Act but this does not dispose of the problem created by the necessity of reading the two Acts together.

There is no quick or easy answer to the problems raised in this case. The appellant's argument that s. 1 of the Solicitors Act takes precedence is answered by the respondents' contention that it is subject to the exception "otherwise provided by law" in s. 50(1) of the Law Society Act. A careful analysis of the two Acts is required in order to determine which should take precedence.

The construction of these statutes necessitates reference to the history of the legal profession in Ontario and the statutes which have governed it. The Law Society of Upper Canada was created by statute in 1797: "An Act for the better Regulating the Practice of the Law" 1797 (U.C.) (2nd Sess.), c. 13. In 1822, the Law Society was incorporated for the purpose of enabling it to acquire land required for the construction of Osgoode Hall: "An Act to repeal part of and amend an act passed in the thirty-seventh year of His late Majesty's Reign, entitled 'An Act for the better regulating the practice of the Law,' and to extend the provisions of the same", 1822 (U.C.) (2nd Sess.), c. 5. The legal profession was unified and not divided by the English rule that a person could not be both a barrister and an attorney.

The separation of the two branches of the profession, barristers and attorneys, was recognized in other ways. The 1822 Act removed attorneys from the supervision of the law society. They were no longer required to be enrolled on the books of the society and to pass prescribed examinations before admission. After 1822, they were required only to have served under written articles for a period of five years and could thereafter be enrolled as solicitors by the Court of King's Bench. Barristers were required to be articled for five years, pass examinations and, after 1828, spend at least four terms in Toronto within the five-year period. Two attempts were made by the law society to separate the two branches of the profession but were rejected by the judges in 1830 and by the Legislature in 1840.

The legal profession, nevertheless, became increasingly divided in practice. A growing number of attorneys, who could be admitted without examination, did not attempt to qualify as barristers. The lack of any proof of fitness of attorneys created both professional and public dissatisfaction and as a result, in 1857, the Legislature gave the law society full jurisdiction over the education and certification of attorneys as well as barristers by "An Act to amend the Law for the admission of Attornies", 1857 (U.C.), c. 63. Justice W. R. Riddell said that the Act:

(W.R. Riddell, The Legal Profession in Upper Canada in its Early Periods, (1916), c. V at p. 21, and see also Riddell, The Bar and the Courts of the Province of Upper Canada or Ontario (1928).)

Solicitors performed the same role in the courts of equity as attorneys did in the law courts and upon fusion of law and equity by the Ontario Judicature Act, 1881 (Ont.), c. 5, attorneys in Ontario were by s. 74 renamed solicitors. The legislation governing the legal profession was revised in 1912 by the enactment of the Law Society Act, 1912 (Ont.), c. 26, the Barristers Act, 1912 (Ont.), c. 27, and the Solicitors Act, 1912 (Ont.), c. 28. The statutory scheme created by the 1912 Acts continued until 1970. It replaced the earlier legislation dealing with the law society, barristers, solicitors and attorneys which dated back to 1797 and is of little relevance to this case.

The Law Society Act of 1912 continued the constitution of the society and its jurisdiction over the education, admission and discipline of barristers and solicitors. The Barristers Act and the Solicitors Act also dealt with requirements for admission to practise. The Barristers Act prescribed the order of precedence at the bar but contained no provision dealing with unauthorized practice. The Solicitors Act contained detailed provisions with regard to solicitor-and-client accounts. In addition, it contained the following two sections under the heading "Prohibition Against Practising When Unqualified":

Sections 3 and 4 of the Solicitors Act of 1912 had appeared in its predecessor acts for many years in virtually the same form.

A similar parenthetical note followed the equivalent to s. 3 in earlier revisions: "An Act respecting Solicitors", R.S.O. 1887, c. 147, s. 1, and "An Act respecting Solicitors", R.S.O. 1897, c. 174, s. 2. While decisive weight cannot be attached to such parenthetical explanatory notes they can be taken as evidence of an intention to harmonize the provisions of the Solicitors Act with those of other Acts permitting representation by agents. In the 1937 revision, ss. 3 and 4 were renumbered as ss. 6 and 7 and the same type of parenthetical note followed s. 7 as had previously followed s. 4: Solicitors Act, R.S.O. 1937, c. 223.

A major change was made to the Solicitors Act in 1940. Section 6 was amended and became s. 6(1) and five new subsections were added by the Solicitors Amendment Act, 1940 (Ont.), c. 26, s. 1. For the first time sanctions for those practising while unqualified were provided by s-ss. (2) through (6). The words "practise or for gain or reward act" were added as additional activities prohibited by s-s. (1). The new section read as follows:

By the Statute Law Amendment Act, 1944 (Ont.), c. 58, s. 1, a section parallel to but not identical with s. 6 of the Solicitors Act was added to the Barristers Act, R.S.O. 1937, c. 222, as s. 4(a):

The prohibition against an unqualified person acting as a barrister was included in earlier versions of the Barristers Act and originated in the Act of 1797 creating the law society which provided that only members of the society could practise in the courts: 1797 (U.C.) (2nd Sess.), c. 13, s. 5. The 1944 amendment to the Barristers Act contained the same sanctions for unauthorized practice as the 1940 amendment to the Solicitors Act with the significant addition of s-s. (7). This new subsection provided an exception for laymen acting as agents under the authority of other statutes.

The statutes remained substantially unchanged in their amended form through the revised statutes of 1950 and 1960 except for the deletion of the parenthetical note following s. 7 of the Solicitors Act in both revisions. Following the publication of "The Report of The Royal Commission Inquiry into Civil Rights Report Number One" (the McRuer Report) in 1968, extensive changes were made to the three statutes governing the legal profession. These changes were undoubtedly triggered by the McRuer Report's recommendation of revised procedures in disciplinary proceedings but they also fundamentally restructured the three statutes.

The Law Society Act was consolidated and revised by 1970 (Ont.), c. 19. Its control over education, admission and discipline was continued and emphasized by the deletion from both the Barristers Act and the Solicitors Act of the sections dealing with qualification and admission and the addition for the first time of a section dealing with unauthorized practice. It is s. 50 which is repeated hereunder for convenience of reference:

The section incorporates in amended form, as indicated by the references after each subsection, the prohibitions against unauthorized practice referred to above in the Barristers Act and the Solicitors Act which were respectively cc. 30 and 378 of the Revised Statutes of Ontario of 1960.

Section 50 does not merely repeat these earlier provisions. It is significantly reworded. It is generalized in the sense that it prohibits unqualified persons from acting, holding themselves out or practising as barristers or solicitors. The detailed references in the former s. 6 of the Solicitors Act to commencing or defending legal proceedings are deleted. There are two more significant features of s. 50(1). It opens with the phrase "Except where otherwise provided by law" which incorporates the saving provision for agents originally included in s. 5(7) of the Barristers Act. It applies the exception in statutory form for the first time to solicitors although, as mentioned above, the parenthetical references to agents in earlier versions of the Solicitors Act appeared to recognize that they were excluded from the operation of the Act. The reference to "gain or reward" added to the former s. 6 of the Solicitors Act by the 1940 amendment was deleted which suggests that charging for services does not of itself make an agent more vulnerable to prosecution.

Section 50(1) of the Law Society Act appears to cast a wider net than the former s. 5 of the Barristers Act. The latter Act prohibited an unqualified person from practising ''at the Bar of Her Majesty's Courts in Ontario". Section 50(1) simply prohibits practice as a barrister without any reference to courts. This may be one reason for the provision previously referred to in the Statutory Powers Procedure Act, 1971 permitting representation by agents before tribunals. It at least clarifies their status and carries into effect recommendations of the McRuer Report: see McRuer Report, vol. 1, at p. 215, and see Orkin, at p. 309, as to its broader implications regarding the autonomy of the law society.

By the amendments to the Barristers Act, 1970 (Ont.), c. 21, all references to qualification and unauthorized practice were deleted and the Act dealt only with precedence at the bar. The amendments to the Solicitors Act, 1970 (Ont.) c. 20, were not as extensive and these lie at the root of the problem in this case. The sections dealing with qualification and admission were deleted and those concerned with solicitor-and-client accounts were retained. Section 6, which dealt with unauthorized practice, was deleted and incorporated in s. 50 of the Law Society Act but s. 7 was retained and is now s. 1 of the Solicitors Act. It is necessary now to construe these sections in light of their statutory history.

The importance of statutory history in interpreting statutes is universally recognized. The late E. A. Driedger in his book, Construction of Statutes, 2nd ed. (1983), aptly stated the assistance to be derived in this case from legislative history of the statutes affecting the legal profession in Ontario at pp. 159-60:

In considering the statutes in light of their statutory history, another important principle should also be kept in mind. The Legislature is presumed to know the statute law. Duff C.J.C. stated this rule in Walker v. The King, [1939] S.C.R. 214 at p. 220:

In that case, the Supreme Court of Canada limited the operation of one section of the Highway Traffic Act in order to avoid conflict with another section of the same Act and a parallel provision in the Criminal Code of which the Legislature was presumed to have knowledge. This presumption of legislative omniscience is perhaps but a facet of the rule that I have already referred to with respect to statutes in pari materia. The Legislature must have intended these statutes, which were enacted at the same time, to be read together so as to avoid conflict and to produce a sensible and workable legislative scheme. This conforms with the principle enunciated by Maxwell on the Interpretation of Statutes, 12th ed. (1969), at p. 66:

In reviewing the statutory history certain features stand out. For many years, agents have been permitted to represent parties in several types of legal proceedings. This fact has long been recognized by the Legislature in statutes governing the legal profession by the references to it in parentheses in successive revisions of the Solicitors Act and the clear exception made in the Barristers Act in 1944. When the sections prohibiting unauthorized practice were transferred to the Law Society Act from the Barristers Act and the Solicitors Act in 1970, this exception for cases "otherwise provided by law" continued to apply to agents acting as barristers and, for the first time, it applied also in specific statutory language to agents acting as solicitors. In addition, the confusing reference to "gain or reward" inserted in the Solicitors Act in 1940 was eliminated indicating the Legislature's intent to focus on the work performed by agents and not whether they were paid.

The effect of the 1970 revision of the three statutes was to transfer the control of unauthorized practice to the Law Society Act. Section 1 of the Solicitors Act is merely an ancillary provision. It does not prohibit unauthorized practice. It merely provides penalties additional to those prescribed in s. 50 of the Law Society Act by preventing recovery of fees and exposing unauthorized persons to the charge of contempt of court. The section cannot stand by itself. The penalties it provides can only apply to unauthorized practice as defined by s. 50(1) of the Law Society Act and as a result do not extend to agents in the position of the respondents whose activities are excepted as being "otherwise provided by law".

This interpretation is fortified by a consideration of s. 1 of the Solicitors Act by itself. The Act now deals entirely with solicitor-and-client accounts and it is logical for it to include the prohibition against charges for unauthorized practice. Contempt of court is the other penalty for unauthorized practice contained in s. 1. It is inconceivable that agents acting under the authority of other statutes could be held in contempt of court and this is a further indication that the Legislature intended s. 1 of the Solicitors Act to be merely ancillary to s. 50(1) of the Law Society Act.

It is ironic that there is lack of clarity in the statutes governing the legal profession and their application to the respondents. I commend for the Legislature's attention the clarification of this legislation and also the status of agents and other paralegals which is now a matter of considerable public discussion.