The following article discusses the case of Law Society of Saskatchewan v. Zielke 2019 SKQB 166. The article was written and published at a time prior to the determination of an appeal of that case. On appeal, the decision discussed in the article was overturned. The decision of the Court of Appeal is available here: Zielke v. Law Society of Saskatchewan, 2021 SKCA 156.
By Mackinley M. Sim*
Law Society of Saskatchewan v. Zielke serves as an example of a law society acting to fulfill its statutory mandate to protect the public and regulate the provision of legal services. The case also raises questions with respect to access to legal services for those who require them most. This blog post will discuss Law Society of Saskatchewan v. Zielke as well as implications that recent amendments to The Legal Profession Act, 1990 and the Law Society of Saskatchewan Rules may have with respect to access to legal services in Saskatchewan.
I. LAW SOCIETY OF SASKATCHEWAN v. ZIELKE
In Law Society of Saskatchewan v. Zielke, the Law Society of Saskatchewan (“Law Society”) obtained a statutory injunction against Mark Zielke. The injunction, among other things, restrained Zielke from providing legal services to the public in exchange for a fee. Zielke is not a lawyer, but argued that provisions within The Summary Offences Procedure Act, 1990, The Small Claims Act, 2016, and the Criminal Code expressly permit him to represent clients as an agent. Given that none of the three aforementioned statutes restrict an agent from charging a fee, Zielke had argued that he should not be restrained from doing so. The Law Society, on the other hand, had argued that s. 30 of The Legal Profession Act, 1990 expressly prohibits nonlawyers from “charging a fee for services when acting as agent in legal matters.” The Law Society “further argue[d] that the presumption of coherence in statutory interpretation presumes the body of legislation enacted by a Legislature does not contain contradictions or inconsistencies and that each provision is capable of operating without coming into conflict with any other.” With respect to potential conflict between the Criminal Code and the LPA, the Law Society argued that a proper interpretation of both enactments reveal that they are not in conflict and, as a result, the paramountcy doctrine has no application.
The Court of Queen’s Bench agreed with the Law Society. The Court concluded that while s. 51 of the SOPA, if constructed differently, could allow for that statute to prevail where there was “actual conflict” with the LPA, there was no actual conflict in this case. The Court found that actual conflict would exist only if the SOPA allowed agents to charge a fee for their services. The Court concluded that “[a]gents who are not lawyers may not charge fees for their services. This is the only harmonized interpretation that is consistent with the presumption that each statute is meant to fully operate according to its terms and the presumption against internal conflict.”
The Court also found that there was no conflict between the contested provisions of the Criminal Code and the LPA. Accordingly, the Law Society was granted an injunction against Zielke, restraining his ability to, among other things, provide legal services to clients for a fee “unless and until he is approved and licenced by the Law Society to do so.”
II. THE LAW SOCIETY’S MANDATE AND THE ACCESSIBILITY OF LEGAL SERVICES
Section 3.1 of the LPA states the following:
3.1 In the exercise of its powers and the discharge of its responsibilities, it is the duty of the society, at all times:
The Court in Zielke noted that “law societies have an important role in protecting the public from the activities and unregulated persons holding themselves out to be lawyers and ‘That is why the Law Society has a duty to seek remedies against unauthorized persons practicing law or holding themselves out as legal professionals.’” Section 82(1) of the LPA expressly provides that the Law Society may seek an injunction against an individual who contravenes the statute. This is a reflection of the Law Society’s mandate to protect the public.
In a Saskatoon StarPhoenix article published following the Court’s decision in Zielke, Mark Zielke is quoted as stating that the Court’s decision is an “attempt to ‘oust [him] as an advocate for justice.’” The article also notes that “Zielke said he got into justice advocacy after seeing ordinary people, especially immigrants and refugees, ‘falling through the cracks’” and that his aim in providing services to clients is “‘to make the system run more efficiently and more smoothly.’” It is clear that the Law Society has a statutory mandate to protect the public and regulate the provision of legal services. It is also clear, however, that those who require the services of a lawyer may not always be able to obtain one. Many of the people that Zielke notes are “falling through the cracks” of the legal system are doing so because they lack access to legal assistance. That said, individuals that solicit the help of unlicensed and uninsured individuals like Zielke may not be sufficiently protected. Fortunately, this is an issue that the Law Society itself is currently working to address through recent amendments to the LPA.
III. IMPLICATIONS OF RECENT AMENDMENTS TO THE LEGAL PROFESSION ACT, 1990 AND THE LAW SOCIETY OF SASKATCHEWAN RULES
In 2019, following a recommendation made by Saskatchewan’s Legal Services Task Team, the LPA was amended to define the practice of law. In addition, the Law Society of Saskatchewan Rules were amended to add Rule 1002, which expanded the categories of individuals exempt from the unauthorized practice provisions of the LPA. The Legal Services Task Team also recommended that the LPA be amended to allow the Law Society to grant limited licenses to practice law. While such amendments have been passed by the Legislative Assembly of Saskatchewan and have received Royal Assent, they are not yet in force. In order to better develop a framework for the provision of limited licenses, the Law Society is currently engaging in consultation with community stakeholders. The goal is an ambitious one: “to balance the need for enhanced access to legal services for underserved Saskatchewan citizens while ensuring public protection.”
The Law Society’s effort to address the need for improved access to legal services is a laudable one. Allowing for limited licenses to practice law is also a unique approach as no other Canadian jurisdiction has, at the time of writing, undertaken the same effort. While it remains to be seen what exactly the limited licencing framework will look like, it is clear that such a regime has the potential to both increase accessibility of legal services to those who need them most and to ensure that the public is protected. With the primary focus of the Law Society being the regulation of the legal profession in Saskatchewan, it is well situated to ensure that those who offer limited legal services are qualified to do so and do not exceed the scope of their licenses. By engaging in consultation with stakeholders prior to implementing a framework for limited licenses, the Law Society will be better aware of the precise needs of those who require legal services and the types of services that individuals aim to offer under the limited licensing arrangement. While it is unclear if the services offered by Zielke could be provided under a limited license, the new regime has the potential to ensure that at least some individuals do not fall through the cracks due to a lack of legal assistance. Allowing for limited licences could effectively address accessibility concerns without greatly disrupting the practice of law and the regulation of the legal profession.
It is unclear how effective the introduction of limited licenses to practice law will be in addressing issues around access to legal services in Saskatchewan. As Zielke highlights, the Law Society has the mandate of protecting the public and will intervene where the public interest is at stake. The balance between the need to protect the public and the need for accessible legal services is a delicate one. While limited licenses to practice law may improve access to legal services to those who need them most, it remains to be seen how effective the Law Society will be in achieving this balance.
* JD Candidate (Saskatchewan).
 2019 SKQB 166 [Zielke].
 Ibid at paras 27–28.
 Ibid at para 28.
 SS 1990-91, c S-63.1 [SOPA].
 SS 2016, c S-50.12.
 RSC 1985, c C-46.
 Zielke, supra note 1 at para 6.
 SS 1990-91, c L-10.1 [LPA].
 Zielke, supra note 1 at paras 5, 8.
 Ibid at para 8.
 Saskatchewan (Attorney General) v Lemare Lake Logging Ltd., 2015 SCC 53,  3 SCR 419, quoted in Zielke, supra note 1 at para 12.
 Zielke, supra note 1 at para 16.
 Ibid at para 14.
 Ibid at para 19.
 Ibid at para 28.
 Supra note 9.
 Zielke, supra note 1 at para 22 quoting Law Society of Upper Canada v Augier, 2013 ONSC 451 at para 9.
 LPA, supra note 9, s 82(1).
 Kathy Fitzpatrick, “‘Advocate for justice’ in Saskatoon ordered to stop practising law without a licence”, Saskatoon StarPhoenix (6 August 2019), online: <thestarphoenix.com/news/local-news/advocate-for-justice-in-saskatoon-ordered-to-stop-practising-law-without-a-licence>, archived: <perma.cc/KR8T-BHNZ>.
 Legal Services Task Team, “Final Report of the Legal Services Task Team” (August 2018) at 64–68, online (pdf): Law Society of Saskatchewan <www.lawsociety.sk.ca/media/395320/107840-legal_services_task_team_report_august_14-_2018-1.pdf>, archived <perma.cc/6A2T-XTUP> [Legal Services Task Team].
 LPA, supra note 9, s 29.1.
 Law Society of Saskatchewan, Rules, Regina: LSS, 2020, r 1002.
 Legal Services Task Team, supra note 25 at 78–87.
 See e.g. The Legal Profession Amendment Act, 2019, SS 2019, c 7, s 15. Section 15 of The Legal Profession Amendment Act, 2019 will amend the LPA to add s. 24.1, a detailed provision governing the issuance of limited licenses (ibid).
 “Law Society Seeking to Identify Non-lawyer Service Providers for New Initiatives” (last visited 26 June 2020), online: Law Society of Saskatchewan <www.lawsociety.sk.ca/about-us/consultation>, archived <perma.cc/WEW9-MBL9>.