Chapter 6 – Relationship to Students, Employees, and Others – annotated

Commentary

[1]  A lawyer may permit a non-lawyer to act only under the supervision of a lawyer. The extent of supervision will depend on the type of legal matter, including the degree of standardization and repetitiveness of the matter, and the experience of the non-lawyer generally and with regard to the matter in question. The burden rests on the lawyer to educate a non-lawyer concerning the duties that the lawyer assigns to the non-lawyer and then to supervise the manner in which such duties are carried out. A lawyer should review the non-lawyer’s work at sufficiently frequent intervals to enable the lawyer to ensure its proper and timely completion. The number of non-lawyers that a lawyer supervises must be limited to ensure that there is sufficient time available for adequate supervision of each non-lawyer.

[3]  If a non-lawyer has received specialized training or education and is competent to do independent work under the general supervision of a lawyer, a lawyer may delegate work to the non-lawyer.

[4]  A lawyer in private practice may permit a non-lawyer to perform tasks delegated and supervised by a lawyer, so long as the lawyer maintains a direct relationship with the client. A lawyer in a community legal clinic funded by a provincial legal aid plan may do so, so long as the lawyer maintains direct supervision of the client’s case in accordance with the supervision requirements of the legal aid plan and assumes full professional responsibility for the work.

[5]  Subject to the provisions of any statute, rule or court practice in that regard, the question of what the lawyer may delegate to a non-lawyer generally turns on the distinction between any special knowledge of the non-lawyer and the professional and legal judgment of the lawyer, which, in the public interest, must be exercised by the lawyer whenever it is required.

[[1] amended 10/2021]

Commentary

[1]  A lawyer is responsible for any undertaking given or accepted and any trust condition accepted by a non-lawyer acting under the lawyer's supervision.

[2]  A lawyer should ensure that the non-lawyer is identified as such when communicating orally or in writing with clients, lawyers or public officials or with the public generally, whether within or outside the offices of the law firm of employment.

[3]  In real estate transactions using a system for the electronic submission or registration of documents, a lawyer who approves the electronic registration of documents by a non-lawyer is responsible for the content of any document that contains the electronic signature of the non-lawyer.

[[1] amended 10/2021]

Commentary

[1]  A lawyer must not delegate work to a paralegal, nor may a lawyer hold a person out as a paralegal, unless the lawyer is satisfied that the person has sufficient knowledge, skill, training and experience and is of sufficiently good character to perform the tasks delegated by the lawyer in a competent and ethical manner. 

[2]  In arriving at this determination, lawyers should be guided by Appendix E.

[3]  Lawyers are professionally and legally responsible for all work delegated to paralegals. Lawyers must ensure that the paralegal is adequately trained and supervised to carry out each function the paralegal performs, with due regard to the complexity and importance of the matter.

Commentary

[1]  Law Society Rule 2-13 limits the number of designated paralegals performing the enhanced duties of giving legal advice, appearing in court or before a tribunal or appearing at a family law mediation.

[2]  Where a designated paralegal performs the services in rule 6.1-3.3, the supervising lawyer must be available by telephone or other electronic means, and any agreement arising from a family law mediation must be subject to final review by the supervising lawyer.

[[1] updated 07/2015; [1] amended, [2] added 12/2015]

Commentary

[1]  The implementation of systems for the electronic registration of documents imposes special responsibilities on lawyers and others using the system. The integrity and security of the system is achieved, in part, by its maintaining a record of those using the system for any transactions. Statements professing compliance with law without registration of supporting documents may be made only by lawyers in good standing. It is, therefore, important that lawyers should maintain and ensure the security and the exclusively personal use of the personalized access code, diskettes, etc., used to access the system and the personalized access pass phrase or number.

[2]  In a real estate practice, when it is permissible for a lawyer to delegate responsibilities to a non-lawyer who has such access, the lawyer should ensure that the non-lawyer maintains and understands the importance of maintaining the security of the system.

Commentary

[1]  A principal or supervising lawyer is responsible for the actions of students acting under the principal or supervising lawyer's direction.

[[1] amended 10/2021]

Commentary

[1]  Lawyers are expected to respect the dignity and worth of all persons. A lawyer has a special responsibility to respect and uphold the principles and requirements of human rights and workplace health and safety laws, and to stay apprised of developments in the law pertaining to discrimination and harassment, applicable to them.

The principles of human rights, workplace health and safety laws, and related case law apply to the interpretation of this Code rule and to Code rules 6.3-2 to 6.3-4. What constitutes discrimination, harassment, and protected grounds continues to evolve over time and may vary by jurisdiction.

[2]  A lawyer engaging in discriminatory or harassing behaviour undermines confidence in the legal profession and our legal system. A lawyer should foster a professional environment that is respectful, accessible, and inclusive, and should strive to recognize their own biases and take particular care to avoid engaging in practices that would reinforce those biases, when offering services to the public and when organizing their workplace.

[3]  As a result of the history of the colonization of Indigenous peoples in Canada, including ongoing repercussions of the colonial legacy, systemic factors, and biases, Indigenous peoples experience unique challenges in relation to discrimination and harassment. Lawyers should guard against engaging in, allowing, or being willfully blind to actions that constitute discrimination or any form of harassment against Indigenous peoples.

[4]  Lawyers should be aware that discrimination includes adverse effects and systemic discrimination, that can arise from organizational policies, practices and cultures that create, perpetuate, or unintentionally result in unequal treatment of a person or persons. Lawyers should consider the distinct needs and circumstances of their colleagues, employees, and clients, and should be alert to biases that may inform these relationships and that serve to perpetuate systemic discrimination and harassment. Lawyers should guard against any express or implicit assumption that another person’s views, skills, capabilities, and contributions are necessarily shaped or constrained by their gender, race, Indigeneity, disability or other personal characteristic.

[5]  Discrimination can be defined as the distinction, intentional or not, based on grounds related to actual or perceived personal characteristics of an individual or group, that has the effect of imposing burdens, obligations or disadvantages on the individual or group that are not imposed on others, or which withhold or limit access to opportunities, benefits and advantages that are available to other members of society. Harassment may constitute or be linked to discrimination. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will typically constitute discrimination. Human rights laws recognize some actions based on grounds related to actual or perceived personal characteristics of an individual or group are not discriminatory, including for example, establishing or providing programs, services or activities that have the object of ameliorating conditions of those individuals or groups. It is important to recognize that people are multi-faceted, and the intersection of overlapping and interdependent systems of discrimination they may experience.

[6]  Discrimination can arise in many different circumstances. The following examples are intended to provide illustrations of circumstances that are likely to constitute discrimination. The examples are not exhaustive.

(a)  refusing to employ or to continue to employ any person on the basis of any personal characteristic protected by applicable law;

(b)  refusing to provide legal services to any person on the basis of any personal characteristic protected by applicable law;

(c)  charging higher fees on the basis of any personal characteristic protected by applicable law;

(d)  assigning lesser work or paying an employee or staff member less on the basis of any personal characteristic protected by applicable law;

(e)  using derogatory racial, gendered, or religious language to describe a person or group of persons;

(f)  failing to provide reasonable accommodation to the point of undue hardship;

(g)  applying policies regarding leave that are facially neutral (i.e. that apply to all employees equally), but which have the effect of penalizing individuals who take parental leave, in terms of seniority, promotion or partnership;

(h)  providing training or mentoring opportunities in a manner that has the effect of excluding any person from such opportunities on the basis of any personal characteristic protected by applicable law;

(i)  providing unequal opportunity for advancement by evaluating employees on facially neutral criteria that fail to take into account differential needs and needs requiring accommodation;

(j)  comments, jokes or innuendos that cause humiliation, embarrassment or offence, or that by their nature, and in their context, are clearly embarrassing, humiliating or offensive; or

(k)  instances when any of the above behaviour is directed toward someone because of their association with a group or individual with certain personal characteristics.

[7]  Lawyers are expected to not condone or be willfully blind to conduct in their workplaces that constitutes discrimination.

[8]  Lawyers are reminded that dishonourable or questionable conduct on the part of a lawyer in either private life or professional practice will reflect adversely upon the integrity of the profession and the administration of justice. Whether within or outside the professional sphere, if the conduct is such that knowledge of it would be likely to impair a client’s trust in the lawyer, the Society may be justified in taking disciplinary action. Generally, however, the Society will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the lawyer’s professional integrity (see Code rule 2.2-1 commentaries [3] and [4]).

[[1] to [8] added 07/2023]

Commentary

[1]  Harassment can be defined as an incident or a series of incidents involving physical, verbal or non-verbal conduct (including electronic communications) that might reasonably be expected to cause humiliation, offence or intimidation to the person who is subjected to the conduct. The intent of the lawyer engaging in the conduct is not determinative. Harassment may constitute or be linked to discrimination.

[2]  Harassment can arise in many different circumstances. The following examples are intended to provide illustrations of circumstances that are likely to constitute harassment. The examples are not exhaustive.

(a) objectionable or offensive behaviour that is known or ought reasonably to be known to be unwelcome, including comments and displays that demean, belittle, intimidate or cause humiliation or embarrassment;

(b) behaviour that is degrading, threatening or abusive, whether physically, mentally or emotionally;

(c) bullying;

(d) verbal abuse;

(e) abuse of authority where a lawyer uses the power inherent in their position to endanger, undermine, intimidate, or threaten a person, or otherwise interfere with another person’s career;

(f) comments, jokes or innuendos that are known or ought reasonably to be known to cause humiliation, embarrassment or offence, or that by their nature, and in their context, are clearly embarrassing, humiliating or offensive; or

(g) assigning work inequitably.

[3]  Bullying, including cyberbullying, is a form of harassment. It may involve physical, verbal or non-verbal conduct. It is characterized by conduct that might reasonably be expected to harm or damage the physical or psychological integrity of another person, their reputation or their property. Bullying can arise in many different circumstances. The following examples are intended to provide illustrations of circumstances that are likely to constitute bullying. The examples are not exhaustive.

(a) unfair or excessive criticism;

(b) ridicule;

(c) humiliation;

(d) exclusion or isolation;

(e) constantly changing or setting unrealistic work targets; or

(f) threats or intimidation.

[4]  Lawyers are expected to not condone or be willfully blind to conduct in their workplaces that constitutes harassment.

[5]  Lawyers are reminded that dishonourable or questionable conduct on the part of a lawyer in either private life or professional practice will reflect adversely upon the integrity of the profession and the administration of justice. Whether within or outside the professional sphere, if the conduct is such that knowledge of it would be likely to impair a client’s trust in the lawyer, the Society may be justified in taking disciplinary action. Generally, however, the Society will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the lawyer’s professional integrity (see Code rule 2.2-1 commentaries [3] and [4]).

[[1] to [5] added 07/2023]

Commentary

[1]  Sexual harassment can be defined as an incident or series of incidents involving unsolicited or unwelcome sexual advances or requests, or other unwelcome physical, verbal, or nonverbal conduct (including electronic communications) of a sexual nature. Sexual harassment can be directed at others based on their gender, gender identity, gender expression, or sexual orientation. The intent of the lawyer engaging in the conduct is not determinative. Sexual harassment may occur:

(a)  when such conduct might reasonably be expected to cause insecurity, discomfort, offence, or humiliation to the person who is subjected to the conduct;

(b)  when submission to such conduct is implicitly or explicitly made a condition for the provision of professional services;

(c)  when submission to such conduct is implicitly or explicitly made a condition of employment;

(d)  when submission to or rejection of such conduct is used as a basis for any employment decision, including;

(i)  loss of opportunity;

(ii)  the allocation of work;

(iii)  promotion or demotion;

(iv)  remuneration or loss of remuneration;

(v)  job security; or

(vi)  benefits affecting the employee;

(e)  when such conduct has the purpose or the effect of interfering with a person's work performance or creating an intimidating, hostile, or offensive work environment;

(f)  when a position of power is used to import sexual requirements into the workplace and negatively alter the working conditions of employees or colleagues; or

(g) when a sexual solicitation or advance is made by a lawyer who is in a position to confer any benefit on, or deny any benefit to, the recipient of the solicitation or advance, if the lawyer making the solicitation or advance knows or ought reasonably to know that it is unwelcome.

[2]  Sexual harassment can arise in many different circumstances. The following examples are intended to provide illustrations of circumstances that are likely to constitute sexual harassment. The examples are not exhaustive.

(a)  displaying sexualized or other demeaning or derogatory images;

(b)  sexually suggestive or intimidating comments, gestures or threats;

(c)  comments, jokes that cause humiliation, embarrassment or offence, or which by their nature, and in their context, are clearly embarrassing, humiliating or offensive;

(d)  innuendoes, leering or comments about a person’s dress or appearance;

(e)  gender-based insults or sexist remarks;

(f)  communications with sexual overtones;

(g)  inquiries or comments about a person’s sex life;

(h)  sexual flirtations, advances, propositions, invitations or requests;

(i)  unsolicited or unwelcome physical contact or touching;

(j)  sexual violence; or

(k)  unwanted contact or attention, including after the end of a consensual relationship.

[3]  Lawyers are expected to not condone or be willfully blind to conduct in their workplaces that constitutes sexual harassment.

[4]  Lawyers are reminded that dishonourable or questionable conduct on the part of a lawyer in either private life or professional practice will reflect adversely upon the integrity of the profession and the administration of justice. Whether within or outside the professional sphere, if the conduct is such that knowledge of it would be likely to impair a client’s trust in the lawyer, the Society may be justified in taking disciplinary action. Generally, however, the Society will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the lawyer’s professional integrity (see Code rule 2.2-1 commentaries [3] and [4]).

[[1] to [4] added 07/2023]

Commentary

[1]  The purpose of this Code rule is to enable people to exercise their rights without fear of reprisal. Conduct that is intended to retaliate against a person, or discourage a person from exploring their rights, can constitute reprisal. Reprisals can arise in many different circumstances. The following examples are intended to provide illustrations of circumstances that are likely to constitute reprisals. The examples are not exhaustive.

(a)  refusing to employ or to continue to employ any person;

(b)  penalizing any person with respect to that person’s employment or changing, in a punitive way, any term, condition or privilege of that person’s employment;

(c)  intimidating, retaliating against or coercing any person;

(d)  imposing a pecuniary or any other penalty, loss or disadvantage on any person;

(e)  changing a person’s workload in a disadvantageous manner, or withdrawing opportunities from them; or

(f)  threatening to do any of the foregoing.

[[1]added 07/2023]