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Rights of Appearance for Lawyer Licensing Process Candidates

A Lawyer Licensing Process Candidate (Candidate) who is serving under approved Articles of Clerkship or is engaged in the Law Practice Program (LPP) work placement term may appear before Ontario courts and tribunals on certain matters, which are set out in non-exhaustive lists below. Candidates who are serving under an approved Supervision Agreement are also entitled to appear in the circumstances indicated below, as are students who are enrolled in the Integrated Practice Curriculum at the Lakehead University Bora Laskin Faculty of Law (“Lakehead IPC Students”) who are currently completing their work placement semester.

A Candidate appearing before a court or tribunal must identify him/herself as a “student-at-law” or “articling student”. A Lakehead IPC Student appearing before a court or tribunal must identify him/herself as a “law student.”

A.    General Guidelines for all appearances

  1. Articling principals and/or supervising lawyers are under an obligation to ensure in each case where Candidates are instructed to appear before courts or tribunals that
    1. the attendance of the articling principal and/or supervising lawyer is not necessary in order to secure the client's rights, assist the court or for any other reason;
    2. the Candidate is adequately supervised;
    3. the matter is appropriate for the Candidate's training, experience and ability; and
    4. the Candidate is properly prepared.
  2. All Candidates, articling principals and supervising lawyers must comply with the Law Society’s By-law 4, which sets out the approved activities of Licensees and those under the supervision of a Licensee.
  3. Ontario courts and tribunals control their own processes in regards to who may appear before them. Although the Law Society’s Rights of Appearance sets out certain matters for which the Law Society’s governing legislation and by-laws permit Candidates and law students to appear, the Law Society strongly recommends that Candidates and principals consult any applicable enabling legislation and rules of practice and/or procedure of the court or tribunal in question, or contact the court or tribunal in advance, to obtain express permission whenever possible.
  4. Licensees supervising law students who are not Candidates, but are enrolled in a degree program at a Canadian law school accredited by the Law Society, must also review the Law Society’s Law Student  Rights of Appearance  for additional information regarding the tasks that may be delegated to law students.

B.    CIVIL LAW MATTERS (EXCEPT FAMILY LAW MATTERS):

  1. Candidates are permitted to appear on the following civil law matters (except for family law matters, which are outlined in section D. below):
    1. Consent motions and other matters on consent, including references and assessments of costs (with the exception of those set out in section B.2. below). 
    2. Matters brought without notice to the opposing party before the Ontario Court of Justice and before the Masters and Registrars of the Superior Court of Justice, provided no substantial rights of the parties will be affected.
    3. Simple contested interlocutory motions before the Ontario Court of Justice and the Superior Court of Justice and before the Masters and Registrars of the Superior Court of Justice, unless the result of such interlocutory motion could be to finally dispose of a party's substantive rights by determining the subject matter in dispute.
    4. Motions to dismiss an action, on behalf of a responding party only, if such relief is merely alternative to the primary relief sought on the motion, and if there is no reasonable prospect that dismissal of the action will be ordered. 
    5. Subject to the discretion of a judge of the Superior Court of Justice, on the passing of accounts in estate matters.
    6. Examinations for discovery, examinations in aid of execution, examinations of witnesses on pending motions and cross-examinations on affidavits in support of interlocutory motions.
    7. Assignment court matters.
    8. Matters before the Small Claims Court, including pre-trial conferences. 
    9. Consent motions and other matters before a Registrar at the Court of Appeal for Ontario.
    10. Status hearings in the Superior Court of Justice.

Explanatory Note – Civil Law Matters

  1. With respect to section B.1.iii., Candidates should only appear on matters that are truly interlocutory in nature. The question of whether a matter is interlocutory or final in nature is a matter of law.
  2. Candidates are not permitted appear on the following matters:
    1. Motions for certificates of pending litigation;
    2. Interlocutory injunctions brought without notice to the opposing party;
    3. Contested motions to strike pleadings on the ground of no reasonable cause of action or defence (except as set out in section B.1.iv.);
    4. Contested motions for summary judgment, default judgment or dismissal on any ground (except as set out in section B.1.iv.);
    5. Pre-trial conferences (except as set out in section B.1.viii.); 
    6. Motions before a judge at the Superior Court of Justice;
    7. Proceedings in the Divisional Court. 

C.    CRIMINAL LAW MATTERS:

Candidates are permitted to appear on the following criminal law matters: 

  1. In the Ontario Court of Justice:
    1. Summary conviction matters that were punishable by a maximum of 6 months' imprisonment immediately before September 19, 2019 and for which the accused was able to appear by agent pursuant to s. 802.1 of the Criminal Code (a list of offences may be found here);
    2. Summary conviction matters in respect of an offence under ss. 320.13(1), 320.16(1), 320.17 or 320.18(1) of the Criminal Code; and
    3. Remands and consent adjournments on indictable matters.
  2. In the Superior Court of Justice:
    1. remands and consent adjournments as permitted by the presiding judge.
  3. In Youth Criminal Justice Court: 
    1. Candidate rights to appear in Youth Criminal Justice Court (Youth Court) are guided by the same rules as for criminal matters heard in other courts. Therefore, candidates may appear on summary conviction matters in Youth Court subject to the qualifications above. 
  4. Provincial Offences (Quasi-Criminal)
    1. Candidates are permitted to appear on matters under the Provincial Offences Act
    2. Candidates may only appear on Provincial Offences Act appeals that are brought before a judge of the Ontario Court of Justice. 

Explanatory Notes – Criminal Law Matters

  1. Section C. reflects amendments to the Law Society’s By-Law 4 that preserve the Rights of Appearance for Candidates and law students that existed prior to September 19, 2019, the date of the coming into force of certain provisions of Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts. Bill C-75 amended the default maximum penalties for summary conviction offences. 
  2. Subsections C.1. to 4. should not be interpreted to confer upon a Candidate the unrestricted right to appear on a summary conviction trial in all instances. The Principal or supervising lawyer is responsible for providing effective supervision to the Candidate according to all the circumstances of the situation, including the complexity of the matter. This includes consideration of the possible consequences to the accused.
  3. Where an enactment creates an offence, the offence shall be deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment.
  4. The Criminal Code provides for a number of offences where the Crown may elect to proceed either by way of summary conviction or by way of indictment. In terms of classification, the offence is an indictable offence until the Crown elects to proceed by way of summary conviction. Authority for this position is to be found in the Interpretation Act, R.S.C. 1985, c. 1-21, s. 34(1).
  5. Since it is rare that a Crown will make an election to proceed by summary conviction in bail court, Candidates are not permitted to represent persons in bail hearings or assist persons with respect to releases on bail.
  6. The list of offences referred to in subsection C.1.(a) above is: Permitted Criminal Code Summary Conviction Offences for Regulated Agents as of September 19, 2019​

D.    FAMILY LAW MATTERS:

All family law proceedings in the Family Court branch of the Superior Court of Justice and the Ontario Court of Justice are governed by the Family Law Rules (the Rules). Rule 4 of the Rules currently provides that a party may be represented by a person who is not a lawyer, but only if the court gives permission in advance.

E.    ADMINISTRATIVE LAW MATTERS BEFORE TRIBUNALS:

Candidates are permitted to appear before federal and provincial boards, agencies and administrative tribunals in Ontario (collectively, “tribunals”) on appropriate matters, subject to any applicable legislation, rules, procedures or practice directions of those tribunals.

F.    FEDERAL COURT MATTERS:

Candidates are not permitted to appear on matters before the Federal Court.