Highlights of Noteworthy Decisions

Decision 1696 13 I
01/10/2013
S. Martel
  • Parties (representation) (paralegal) (exceptions)

The worker was a fire marshal from 1985 to 2001. He was diagnosed with pulmonary fibrosis in 2005 and died in that same year. The worker's estate appealed a decision of the Appeals Resolution Officer denying the worker entitlement for the pulmonary fibrosis.

In a preliminary matter, the Vice-Chair considered the status of the estate's representative.
As a fire marshal, the worker was a member of the Ontario Public Service Employees Union (OPSEU). The estate was originally represented by the Office of the Worker Adviser (OWA) but the OWA representative advised that pulmonary fibrosis was outside his area of expertise. The OWA referred the estate to the current representative, who was a member of the Professional Fire Fighters' Association (PFFA).
Under the Law Society Act, anyone providing legal services in Ontario must have a licence or be exempt from the requirement to be licenced. Under s. 1(8) para. 4, an employee of a trade union who is acting on behalf of a member of the union in connection with a proceeding before an administrative tribunal is deemed not to be practising law or providing legal services. However, this provision applies only to a union employee acting on behalf of a member of the same union, but not on behalf of a member of a different union or a non-union member.
The representative submitted that an exception should be made in this case and that he should be allowed to represent the estate for reasons of fairness. He noted that fire marshals and firefighters often work closely together and that the PFFA has a history of helping fire marshals in safety matters. He also noted that the widow had no funds to hire a lawyer or a paralegal and that the OWA had advised that the matter was outside its area of expertise. However, the Vice-Chair noted that neither the Law Society Act nor Law Society By-Law 4 provides for any "fairness" exceptions to the licencing and prescribed exemption requirements.
The Vice-Chair concluded that the hearing could not proceed with the current representative. The hearing was adjourned to allow the estate to obtain a new representative.