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CCCA_V5No4_FightClub-FIN_CCCA_V5No3_Metrics-V1.qxd 11/20/11 10:56 PM Page 37 possibly defend that in the court of public opinion? The privilege even if they do not benefit from the class privilege. Feature should protect the most vulnerable people, not only the most pow- Fundamentally, this is an issue for the legislature; it is not an erful. To do otherwise would be to pervert our justice system and the issue for creative judicial law-making through the courts and in sacred trust bestowed on members of our profession by the public. many jurisdictions it has been addressed by the legislature. That is where the issue properly lies. Jamal The debate about whether non-lawyers should be protected by This is an edited transcript of the debate. Visit cba.org to watch the privilege is not about preserving a legal monopoly. It is not about full version. protecting the guild, and I say this despite the presence of some lawyers who market the privilege as a commodity — who sell it CHOOSE FROM CANADA’S TOP as a basis for engaging them —and it is not about the insecurities of the legal profession. MEDIATORS AND ARBITRATORS It is about, fundamentally, going back to what I said at the onset which is the prin- ciple justification for the privilege and that provides also the reason for non-extension to non-lawyers; that is, the essential and integral role of the lawyer to the operation of the legal system in the rule of law. So, the question is: Is this individual and their advice integral to the operation of the legal system and the rule of law? That is the question you have to ask and, in my respectful submission, not all non-lawyers are the same in this regard. It is, perhaps, easiest in respect of patent agents who have long been recognized as not being within the ambit of privilege since the 1886 decision of the Court of Chancery. A somewhat harder case is the situation of accountants and tax accountants, in par- The Hon. Donald Kathleen J. Kelly ticular, who may review many of the same B.Comm., LL.B., LL.M. rules as lawyers and advise on many of the Cameron, Q.C. provides well reasoned same rules. The problem is they do not specializes in commercial, arbitral awards, specializing have the same nexus to the operation of the employment, real estate and in commercial, investment, environmental disputes. He is legal system and their advice is not integral insurance, professional a former Superior Court Judge to the legal system to the same degree, but negligence, sports and trade & of Ontario, where he presided I recognize they have a greater claim to over civil and commercial transportation disputes. She is being within the ambit of the privilege. cases including insolvency and a results-focused mediator with extensive experience in civil, [Paralegals] I believe, do have the greatest bankruptcy disputes. Don construction, employment, claim to coming within the scope to privi- possesses a balanced judgement environmental and insurance and a sense of fairness in all his lege, especially now that in Ontario they are cases, including medical dealings. regulated by the Law Society. It seems to me malpractice. that paralegals quite plausibly should come within the scope of the privilege. Even if non-lawyers are outside the protection of the privilege, one should not adrchambers.com forget that they still have the possibility of 1.800.856.5154 coming within a case-by-case privilege HIVER 2011 CCCA Canadian Corporate Counsel Association 37