Introduction

Assessment is one of the Fairness Commissioner's mandated roles under the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 (FARPACTA) and the Regulated Health Professions Act, 1991 (RHPA) – collectively known as fair access legislation.

Assessment Cycle

One of the primary ways the OFC holds regulators accountable for continuous improvement is through the assessment of registration practices using a three-year assessment cycle.

Assessment cycles alternate between full assessments and targeted assessments:

• Full assessments address all specific and general duties described in the fair-access legislation.
• Targeted assessments focus on the areas where the OFC made recommendations in the previous full assessment.

Focus of this Assessment and Report

The 2016-2017 assessment of the Law Society of Upper Canada (LSUC) is a full assessment.

The OFC’s detailed report captures the results of the full assessment. However, practices related to provision of information are excluded for regulators who have previously been assessed. For those regulators, all practices have been removed from the report.^[1] The assessment summary provides the following key information from the detailed report:

• duties that were assessed
• an overview of assessment outcomes for specific duty practices
• an overview of comments related to the general duty
• commendable practices
• recommendations

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Assessment Summary

Specific Duties

Specific duties assessed

The regulator has been assessed in all of the specific duties, with the exception of provision of information.

Comments

The regulatory body has demonstrated all of the practices in the following specific-duty areas:

• 2. Timely Decisions, Responses and Reasons
• 3. Internal Review or Appeal
• 6. Assessment of Qualifications
• 7. Training
• 8. Access to Records

General Duty

Assessment method

The regulator selected the following method for the assessment of the general duty:

a.	OFC practice-based assessment (following the practices in the Assessment Guide)
b.	Regulator practice-based self-assessment (following the practices in the Assessment Guide)
c.	Regulator systems-based self-assessment (in which it explains systemically and holistically how it meets the general duty)

Principles assessed

The regulator has been assessed on all of the general duty principles: transparency, objectivity, impartiality and fairness.

Comments

The LSUC takes effective actions to meet its general duty obligations. Since the last assessment, the LSUC has implemented additional measures to move toward a transparent, objective, impartial and fair registration process. The OFC hopes that the LSUC will continue its efforts in continuously improving its registration practices.

Commendable Practices

A commendable practice is a program, activity or strategy that goes beyond the minimum standards set by the OFC assessment guides, considering the regulatory body's resources and profession-specific context. Commendable practices may or may not have potential for transferability to another regulatory body.

The regulatory body is demonstrating commendable practices in the following areas:

Specific Duty

Timely Decisions, Responses and Reasons

1. Implementing a variety of measures to meet timelines for making registration decisions, and giving written decisions and reasons to applicants. For example:
   1. maintaining a comprehensive file management system that enables evidence-based, computerized decision-making regarding each component of the licensing process. Decisions are generated as the appropriate paperwork is processed and evidence is recorded in the file management system. Once these steps are completed, applicants are promptly informed about the registration decisions via a messaging tool that is built into the applicant’s online licensing account; and
   2. maintaining a detailed calendar of deadline dates. The calendar identifies all key dates for each key step of the licensing process.
2. Implementing a comprehensive service standards policy. Conducting internal reviews and making decisions related to an applicant’s good character requirement involves a number of steps. The timelines for this process are established in the LSUC’s service standards policy. The policy provides department-specific guidelines for staff on how to handle the incoming documentation and what specific actions they need to take to ensure timely reviews. By clarifying the process and responsibilities, the policy helps reduce the potential for undue delays.

General Duty

Transparency

1. Publishing the treasurer’s memoranda on the LSUC website. The memoranda set out the LSUC’s expectations for the work of each committee over the course of the treasurer’s^[2] term. The memoranda also include specific targets for completion of work and decision-making by Convocation as appropriate. By publishing this information, the LSUC provides the interested public and stakeholders with detailed information about the LSUC’s priorities and shows how the registration process is governed.
2. Publishing the Licensing Examination Orientation video on the website. The video helps applicants better understand the LSUC’s licensing examination. The video format provides an alternative means to communicating key information at an overview level, and directs candidates to the LSUC’s website for more specific and detailed information.
3. Using the LSUC’s online licensing account tool to provide applicants with immediate and up-to-date information about their status in the licensing process. The tool also allows applicants to communicate with the Law Society in a confidential and individualized way. The tool also includes a function for recording notes in an applicant’s file. These notes allow the LSUC to document other communication with applicants that occurred outside of online communication, and to document other issues that may require follow up actions by the LSUC. In this way, the LSUC keeps an accurate record of its communications with applicants, which enhances quality assurance and consistency in provision of information.

Impartiality

1. In 2016, introducing a bencher education program series. This education program resulted from the LSUC’s Strategic Plan 2015-2019. Topics covered by the education program series include:
   1. perspectives of a public interest regulator and the LSUC’s role;
   2. an overview of the results of the LSUC’s internal equity audit;
   3. the impact of unconscious bias;
   4. equity/diversity analysis as a framework for decision-making; and
   5. models, standards and measures for functional governance.

Recommendations

The OFC has not made any recommendations to the LSUC for this assessment period. The OFC expects that the LSUC will continue maintaining its standards in the future. In the spirit of continuous improvement, the OFC encourages the LSUC to continue its efforts towards more transparent, objective, impartial and fair registration processes.

Assessment History

In the previous assessment, the OFC didn’t assess registration practices in relation to licensing of individuals as paralegals.

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Detailed Report^[3]

Specific Duty

2. Specific Duty — Timely Decisions, Responses and Reasons

FARPACTA, s. 8 and s. 9 (1)

*Only applies to regulatory bodies governed by FARPACTA

1. If a regulator rejects an application, it gives written reasons to the applicant. [Fairness, Transparency]

Assessment Outcome

Demonstrated

2. The regulator makes registration decisions, and gives written decisions and reasons to applicants, without undue delay*. [Fairness]

Assessment Outcome

Demonstrated

Commendable Practice

Implementing a variety of measures to meet timelines for making registration decisions, and giving written decisions and reasons to applicants. For example:

• maintaining a comprehensive file management system that enables evidence-based, computerized decision-making regarding each component of the licensing process. Decisions are generated as the appropriate paperwork is processed and evidence is recorded in the file management system. Once these steps are completed, applicants are promptly informed about the registration decisions via a messaging tool that is built into the applicant’s online licensing account; and
• maintaining detailed calendar of deadline dates. The calendar identifies all key dates for each key step of the licensing process.

3. The regulator responds to applicants’ inquiries or requests without undue delay*. [Fairness]

Assessment Outcome

Demonstrated

4. The regulator provides internal reviews of decisions, or appeals from decisions, without undue delay*. [Fairness]

Assessment Outcome

Demonstrated

Commendable Practice

Implementing comprehensive service standards policy. Conducting internal reviews and making decisions related to an applicant’s good character requirement involves a number of steps. The timelines for this process are established in the LSUC’s service standards policy. The policy provides department-specific guidelines for staff on how to handle the incoming documentation and what specific actions they need to take to ensure timely reviews. By clarifying the process and responsibilities, the policy helps reduce the potential for undue delays.

5. The regulator makes decisions about internal reviews and appeals, and gives written decisions and reasons to applicants, without undue delay*. [Fairness]

Assessment Outcome

Demonstrated

3. Specific Duty — Internal Review or Appeal

FARPACTA, s. 7, s. 9(2-3, 5)

*Only applies to regulatory bodies governed by FARPACTA

1. The regulator provides applicants with an internal review of, or appeal from, registration decisions. [Fairness]

Assessment Outcome

Demonstrated

2. The regulator implements rules and procedures that prevent anyone who acted as a decision-maker in a registration decision from acting as a decision-maker in an internal review or appeal of that same registration decision. [Impartiality]

Assessment Outcome

Demonstrated

4. The regulator provides information on its website about any limits or conditions on an internal review or appeal*. [Transparency]

Assessment Outcome

Demonstrated

6. Specific Duty — Assessment of Qualifications

FARPACTA, s. 10 (2)

*Only applies to regulatory bodies that develop and administer their own exams.

2. The regulator communicates the results of qualifications assessment to each applicant in writing. [Transparency]

Assessment Outcome

Demonstrated

3. The regulator gives its assessors access to assessment criteria, policies and procedures. [Transparency]

Assessment Outcome

Demonstrated

4. The regulator shows that its tests and exams measure what they intend to measure*. [Objectivity]

Assessment Outcome

Demonstrated

5. The regulator states its assessment criteria in ways that enable assessors to interpret them consistently. [Objectivity]

Assessment Outcome

Demonstrated

6. The regulator ensures that the information about educational programs that is used to develop or update assessment criteria is kept current and accurate. [Objectivity]

Assessment Outcome

Demonstrated

OFC Comments

The LSUC does not assess academic credentials. The LSUC only requires a candidate's official transcript that is acquired directly from an approved college (community or private). The transcript must confirm the date and year that the applicant graduated from a LSUC-accredited Legal Services (Paralegal) program.

7. The regulator links its assessment methods to the requirements/standards for entry to the profession or trade. [Objectivity]

Assessment Outcome

Demonstrated

8. The regulator requires that assessors consistently apply qualifications assessment criteria, policies and procedures to all applicants. [Objectivity]

Assessment Outcome

Demonstrated

9. The regulator uses only qualified assessors to conduct the assessments. [Objectivity]

Assessment Outcome

Demonstrated

10. The regulator monitors the consistency and accuracy of decisions, and takes corrective actions as necessary, to safeguard the objectivity of its assessment decisions. [Objectivity]

Assessment Outcome

Demonstrated

11. The regulator prohibits discrimination and informs assessors about the need to avoid bias in the assessment. [Impartiality]

Assessment Outcome

Demonstrated

12. The regulator implements procedures to safeguard the impartiality of its assessment methods and procedures. [Impartiality]

Assessment Outcome

Demonstrated

13. The regulator gives applicants an opportunity to appeal the results of a qualifications assessment or to have the results reviewed. [Fairness]

Assessment Outcome

Demonstrated

14. The regulator assesses qualifications, communicates results to applicants, and provides written reasons for unsuccessful applicants, without undue delay. [Fairness]

Assessment Outcome

Demonstrated

15. Regulators that rely on third-party assessments establish policies and procedures to hold third-party assessors accountable for ensuring that assessments are transparent, objective, impartial and fair. [Transparency, Objectivity, Impartiality, Fairness]

Assessment Outcome

Not Applicable

OFC Comments

The LSUC does not rely on third party assessors for the Paralegal licensing process.

7. Specific Duty — Training

FARPACTA, s. 11.

1. The regulator provides training for staff and volunteers who assess qualifications or make registration, internal review or appeal decisions. [Objectivity, Impartiality, Fairness]

Assessment Outcome

Demonstrated

2. The regulator addresses topics of objectivity and impartiality in the training it provides to assessors and decision-makers. [Objectivity, Impartiality]

Assessment Outcome

Demonstrated

3. The regulator identifies when new and incumbent staff and volunteers require training and provides the training accordingly. [Objectivity, Impartiality, Fairness]

Assessment Outcome

Demonstrated

8. Specific Duty — Access to Records

FARPACTA, s. 12

1. The regulator provides each applicant with access to his or her application records. [Fairness]

Assessment Outcome

Demonstrated

3. If there is a fee for making records available, the regulator review the fee to ensure that it does not exceed the amount of reasonable cost recovery. [Fairness]

Assessment Outcome

Demonstrated

General Duty

FARPACTA, Part II, s.6

Transparency

The regulator must meet the following practices:

• Maintaining openness
• Providing access to, monitoring, and updating registration information
• Communicating clearly with applicants about their status

Assessment Outcome

The LSUC takes practical and logical measures to achieve transparent registration processes. This is evident from a variety of sources, including examples of communication with applicants and policy documents posted on the LSUC’s website. Examples of specific practices implemented by the LSUC are outlined below

Openness

• To help interested stakeholders, including the public and applicants, to understand how the registration process operates, on its website, the LSUC:
  • describes the LSUC’s governing structure;
  • identifies the Professional Development and Competence committee as the committee whose mandate is to develop policy options regarding qualifications and other registration requirements; and
  • publishes Convocation reports and decisions.
• To include public input in decisions about substantive registration changes, the LSUC:
  • publishes information about public consultations in a distinct, visible section of its website; and
  • surveys its applicants and members about their registration experiences.

Access

The LSUC provides applicants with all relevant information at the time and in the way needed to take actions appropriate to their individual circumstances. For example, to inform applicants about how they can demonstrate and meet the registration requirements, the LSUC publishes detailed policies on all components of the registration process.

Clarity

The LSUC effectively communicates with applicants throughout the registration process. This includes the LSUC’s online licensing account tool. This tool enables the LSUC to communicate with applicants about their applications, inform applicants about how their applications are progressing, and provide decisions and the reasons during the registration process.

The OFC identified four commendable practices the LSUC implements to promote transparency (see Commendable practices section below).

In the spirit of continuous improvement, the LSUC could consider taking actions to further increase the openness of its registration process (see Suggestions for continuous improvement section below.)

Commendable practice

• Publishing the treasurer’s memoranda on the LSUC’s website. The memoranda set out the LSUC’s expectations for the work of each committee over the course of the treasurer’s term. The memoranda also include specific targets for completion of work and decision-making by Convocation as appropriate. By publishing this information, the LSUC provides the interested public and stakeholder with detailed information about the LSUC’s priorities and shows how the registration process is governed.
• Publishing The Licensing Examination Orientation video on the website. The video helps applicants better understand the LSUC’s licensing examination. Video format provides an alternative means to communicating key information at an overview level, and directs candidates to the LSUC’s website for more specific and detailed information.
• Using the LSUC’s online licensing account tool to provide applicants with immediate and up-to-date information about their status in the licensing process. The tool also allows applicants to communicate with the Law Society in a confidential and individualized way. The tool also includes a function for recording notes in an applicant’s file. These notes allow the LSUC to document other communication with applicants that occurred outside of online communication, and to document other issues that may require follow up actions by the LSUC. In this way, the LSUC keeps an accurate record of its communications with applicants, which enhances quality assurance and consistency in provision of information.

Suggestions for continuous improvement

• Consider publishing the LSUC’s organizational chart on the website. In the chart, clearly identify units and/or positions responsible for the LSUC’s registration decisions.
• Consider reviewing how the LSUC engages in consultations with its stakeholders and the public on key registration policies. Does the LSUC proactively seek public and stakeholders’ input in the development of key registration policies? Are the consultation processes inclusive? Do consultation processes provide for sufficient time for the public and stakeholders to respond? Are there any opportunities for further openness?

Objectivity

• Designing criteria and procedures that are reliable and valid
• Monitoring and following up threats to validity and reliability

Assessment Outcome

The LSUC implements practical and logical measures to achieve consistency and accuracy in its registration decisions. This is evident from a variety of sources, including examples of tools for decision-makers, and policy documents posted on the LSUC’s website. Examples of specific practices implemented by the LSUC are outlined below.

Reliability

• providing decision-makers with the information and tools they need to do their job and informing them about any changes.
• implementing procedures to ground its decisions on evidence that demonstrates how an applicant meets or doesn’t meet the requirements (e.g., licensing criteria and procedures are clearly defined).
• implementing sophisticated policies and procedures for guiding decisions regarding issues of good character.

Validity

• regularly reviewing all licensing requirements, policies and practices.
• including multiple staff members in the decision-making process.
• providing mechanisms for appeals from decisions regarding accommodations and the deferral of issuance of a Class P1 license. These mechanisms are opportunities to review the decisions’ accuracy and consistency.

Impartiality

• Identifying bias, monitoring, and taking corrective action
• Implementing strategies

Assessment Outcome

The LSUC implements effective measures to achieve impartial registration decisions. This is evident from a variety of sources, including examples of tools for decision-makers, and policy documents posted on the LSUC’s website. In particular, the OFC identified that the LSUC takes the following steps:

Identification of Bias

• providing each category of decision-maker with information and training about how to recognize and identify potential biases and instances of bias.
• in training for Tribunal adjudicators, including topics such as the principles of apprehension of bias, accommodation, and the application of the Human Rights Code in adjudication.

Strategies

The LSUC implements strategies to avoid bias. The LSUC does this by, for example:

• basing its registration decisions on concrete evidence;
• including multiple staff members in the decision-making process; and
• using group deliberation and consensus strategies to come to decisions (e.g., decisions made by benchers, the committees and the general meetings of Convocation involve group decision-making and no decisions at this level are made by individuals).

Additionally, in the future, it may be useful for the LSUC to review its decision-making procedures to identify any specific potential factors that may compromise the impartiality of the LSUC’s registration decisions.

The OFC identified one commendable practice the LSUC implements to promote impartiality (see section just below).

Commendable practice

In 2016 the LSUC introduced a bencher education program series. This education program resulted from the LSUC’s Strategic Plan 2015-2019. Topics covered by the education program series include:

• perspectives of a public interest regulator and the LSUC’s role;
• an overview of the results of the LSUC’s internal equity audit;
• the impact of unconscious bias;
• equity/diversity analysis as a framework for decision-making; and
• models, standards and measures for functional governance

Suggestions for continuous improvement

Review procedures for making key registration decisions specifically to identify all the potential risks or factors that may compromise the impartiality of the LSUC’s decisions. Develop resources and/or modify procedures to address those risks.

Fairness

• Ensuring substantive fairness
• Ensuring procedural fairness
• Ensuring relational fairness

Assessment Outcome

The LSUC takes practical and logical measures to promote fairness. This is evident from the LSUC’s legislative documents, registration materials for applicants, reports published on the LSUC’s website, and internal guidelines for decision-makers. However, there is one area that requires the LSUC’s continued attention because it may pose potential risks to fairness. This area is identified under the procedural fairness section below.

Substantive Fairness

The LSUC takes the following measures to promote substantive fairness:

• grounds its registration decisions in pre-determined criteria; and
• reviews its registration requirements to identify alternative pathways for meeting the requirements and implements acceptable alternatives when feasible.

Procedural Fairness

The LSUC takes actions to promote procedural fairness. Examples of this include the following:

• continuously reviewing its registration practices to identify opportunities for improvement and streamlining. Just recently, the LSUC reviewed and revised the Lawyer Licensing Process Policies. Some of these revisions resulted directly or indirectly from input provided by applicants or stakeholders; and
• providing supports to applicants who are having difficulties successfully completing any of the registration requirements. Among other supports, the LSUC provides access to tutoring from an experienced member of the profession for those applicants who have been unsuccessful in the licensing examination, at no cost to applicants.

Procedural fairness requires that the regulators have a process for verifying that their registration practices do not unjustifiably prevent applicants from demonstrating their ability to practice. Currently, applicants seeking to be licensed as a paralegal are required to complete an approved program accredited by the LSUC. This requirement means that those who studied elsewhere cannot apply for licensing and must undergo retraining in one of the LSUC’s accredited programs, including international applicants. As such, this requirement may potentially unjustifiably exclude from the licensing process applicants educated as paralegals in other jurisdictions outside of Ontario. It is important to note that at the time of the assessment, the OFC didn’t find sufficient evidence that indicates that such exclusion actually occurs. As part of its efforts towards fair registration practices, in the future, it would be important for the LSUC to explore what impact this registration requirement has on access to the paralegal profession in Ontario (see the Suggestions for continuous improvement section).

In the spirit of continuous improvement, the LSUC could take more robust actions to verify how it adheres to its own policies and procedures. For example, the LSUC has rigorous rules and procedures to avoid bias and to prevent discrimination. As part of adhering to these rules and procedures, the LSUC could collect and analyze evidence that demonstrates adherence.

Relational Fairness

The LSUC takes the following actions to promote relational fairness:

• has a process for taking applicants’ circumstances into consideration
• has comprehensive policies and procedures to provide accommodations to applicants.

Suggestions for Continuous Improvement

• Explore what impact the paralegal education requirement has on access to the paralegal profession in Ontario. This may include the following:
  • verifying whether the LSUC has no other way to safely assess an applicant’s competencies other than requiring that the applicant complete an accredited paralegal education program.
  • assessing whether the number of potential applicants with paralegal education from other jurisdictions would be sufficient or too low for the LSUC to maintain a financially sustainable competency-based assessment
  • researching and analyzing a sample of paralegal educational programs in other jurisdictions with a view to identifying their comparability to the accredited paralegal educational programs in Ontario.
• Consider taking more robust actions to verify how the LSUC adheres to its own policies and procedures. For example, the LSUC has rigorous rules and procedures to avoid bias and to prevent discrimination. As part of adhering to these rules and procedures, the LSUC could collect and analyze evidence that demonstrates its adherence. Are there instances when these rules and procedures were not followed?

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Background

Assessment Methods

Assessments are based on the Registration Practices Assessment Guide: For Regulated Professions and Health Regulatory Colleges. The guide presents registration practices relating to the specific duties and general duty in the fair access legislation.

A regulatory body’s practices can be measured against the fair access legislation’s specific duties in a straightforward way. However, the general duty is broad, and the principles it mentions (transparency, objectivity, impartiality and fairness) are not defined in the legislation.

As a result, the specific-duty and general-duty obligations are assessed differently (see the Strategy for Continuous Improvement of Registration Practices).

Specific Duties

The OFC can clearly determine whether a regulatory body demonstrates the specific-duty practices in the assessment guide. Therefore, for each specific-duty practice, the OFC provides one of the following assessment outcomes:

• Demonstrated – all required elements of the practice are present or addressed
• Partially Demonstrated – some but not all required elements are present or addressed
• Not Demonstrated – none of the required elements are present or addressed
• Not Applicable – this practice does not apply to the LSUC’s registration practices

General Duty

Because there are many ways that a regulatory body can demonstrate that its practices, overall, are meeting the principles of the general duty, the OFC makes assessment comments for the general duty, rather than identifying assessment outcomes. For the same reason, assessment comments are made by principle, rather than by practice.

For information about the OFC's interpretations of the general-duty principles and the practices that the OFC uses as a guideline for assessment, see the OFC's website.

Commendable Practices and Recommendations

Where applicable, the OFC identifies commendable practices or recommendations for improvement related to the specific duties and general duty.

Sources

Assessment outcomes, comments, and commendable practices and recommendations are based on information provided by the regulatory body. The OFC relies on the accuracy of this information to produce the assessment report. The OFC compiles registration information from sources such as the following:

• Fair Registration Practices Reports, audits, Entry-to-Practice Review Reports, annual meetings
• the regulatory body's:
  • website
  • policies, procedures, guidelines and related documentation templates for communication with applicants
  • regulations and bylaws
  • internal auditing and reporting mechanisms
  • third-party agreements and related monitoring or reporting documentation
  • qualifications assessments and related documentation
• targeted questions/requests for evidence that the regulatory body demonstrates a practice or principle

For more information about the assessment cycle, assessment process, and legislative obligations, see the Strategy for Continuous Improvement.

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References

1. ^ These include: all practices from Information for Applicants, practice 3 from Internal Review and Appeals, practice 1 from Information on Appeal Rights, practice 1 from Documentation of Qualifications, practice 1 from Assessment of Qualifications, practice 2 from Access to Records, and practices 4-11 from Transparency of the Registration Practices Assessment Guide.
2. ^ The LSUC is governed by a board of directors, who are known as benchers. This board includes lawyers, paralegals and public members (non-lawyers and non-paralegals). Benchers gather most months in a meeting called Convocation to make policy decisions and to deal with other matters related to the governance of Ontario's paralegals and lawyers. The chair of Convocation and the head of the LSUC is the Treasurer.
3. ^ Please note: Suggestions for continuous improvement appear only in the detailed report. Suggestions for improvement are not intended to be recommendations for action to demonstrate a practice, but are made solely to provide suggestions for areas that a regulatory body may consider improving in the future.