Mobility and Inter-jurisdictional Frequently Asked Questions

Frequently Asked Questions

These FAQs are intended to provide you with an overview to the provisions respecting mobility. The questions and answers are intended as a guide only. Lawyers seeking to exercise temporary or permanent mobility in Ontario should read the applicable by-laws. In the event of discrepancy between these FAQs and the by-laws, the by-laws apply.

  1. What is inter-provincial mobility?
  2. What by-laws govern mobility in Ontario?
  3. How do I know which by-laws or part of by-laws apply to me?
  4. How can I exercise temporary mobility in Ontario?
  5. What does "authorized to practise law" mean?
  6. If I am eligible for mobility under ss. 42-46 of By-law 4 is there any limitation on this eligibility?
  7. Is it possible to extend the 100 days?
  8. What constitutes the practice of law under By-law 4?
  9. What does it mean to establish an economic nexus with Ontario?
  10. What happens if I establish an economic nexus with Ontario?
  11. I am a partner (employee, associate) in a law firm with offices throughout the country. Do I establish an economic nexus with Ontario by practising law from our Ontario office?
  12. While I am practising law in Ontario on an occasional basis can I receive money in trust for a client?
  13. Are there restrictions on advertising when I am practising law on an occasional basis?
  14. How will other law societies know I have the right to practise law on an occasional basis in their jurisdiction without a permit?
  15. While I am practising law in Ontario on an occasional basis am I subject to the Law Society Act?
  16. While I am practising law in Ontario on an occasional basis can I commission affidavits?
  17. While I am practising law in Ontario on an occasional basis may I give an undertaking to an Ontario lawyer?
  18. If I am in-house counsel in another province do I require professional liability insurance to practise law in Ontario on an occasional basis?
  19. If I practise as part of an LLP or Professional Corporation in another jurisdiction, does that status automatically apply in the jurisdiction in which I exercise temporary mobility?
  20. If an allegation of misconduct or incompetence or incapacity is made against me with respect to my practice of law in Ontario on an occasional basis what law society governs the matter?
  21. How can I exercise permanent mobility in Ontario i.e. become licensed to practise law in Ontario?
  22. What do I have to do to transfer under s. 9 (2) of By-law 4?
  23. How do I apply for transfer pursuant to s. 9 (2) of By-law 4?
  24. What is the transfer fee?
  25. What is the nature of the reading materials?
  26. If I become a member of the Law Society of Upper Canada and intend to reside and practise in Ontario but will remain a practising member of the law society in another jurisdiction am I required to have insurance in both?

  1.What is inter-provincial mobility?

Inter-provincial mobility is the term used to describe the manner in which

  • a lawyer called to the bar in one Canadian province or territory can provide legal services temporarily in or with respect to the law of another province or territory; and
  • a lawyer called to the bar in one province or territory may be called to the bar of another province or territory.

In Ontario, the by-laws addressing temporary mobility are based upon Agreements negotiated among members of the Federation of Law Societies of Canada to which the Law Society of Upper Canada is a signatory. These agreements are

  • the Inter-Jurisdictional Practice Protocol (signed 1994; By-Law approved in Ontario in June 2001);
  • the National Mobility Agreement (signed December 2002; By-Law approved in Ontario in March 2003).
  • The Territorial Mobility Agreement (signed November 2006; By-law amendments approved in Ontario in November 2006)

In Ontario, the requirements respecting permanent mobility are based upon "transfer" rules that have been approved over the years and the provisions in the National Mobility Agreement and Territorial Mobility Agreement referred to above.

NOTE:
Lawyers from provinces or territories outside of Ontario who are interested in temporary or permanent mobility must familiarize themselves with the applicable by-laws.

Lawyers from Ontario who seek to exercise mobility elsewhere in the country must consult the law society in the jurisdiction in which they wish to exercise temporary or permanent mobility. The requirements to which they will be subject will depend upon whether the jurisdiction in question is a signatory to the National Mobility Agreement and/or Territorial Mobility Agreement and has implemented rules under those Agreements (see below).

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  2.What by-laws govern mobility in Ontario?

The main mobility provision is contained in By-law 4 sections 9 (1) and 9 (2)

Another by-law has mobility-related provisions:

By-Law 6 (Professional Liability Insurance);

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  3.How do I know which by-laws or part of by-laws apply to me?

The National Mobility Agreement will apply only to lawyers who are "entitled to practise law" in a jurisdiction that has signed the National Mobility Agreement or the Territorial Mobility Agreement and adopted regulatory provisions implementing the requirements of the Agreement. The following jurisdictions have implemented the National Mobility Agreement:

British Columbia
Alberta
Saskatchewan
Manitoba
Ontario
Nova Scotia
New Brunswick
Newfoundland and Labrador
Prince Edward Island

The Territories - Northwest Territories, Yukon, Nunavut implemented the Territorial Mobility Agreement relating to permanent mobility only.

Quebec signed the National Mobility Agreement but has not implemented its provisions yet.

The National Mobility Agreement is a reciprocal agreement. In other words, both a jurisdiction in which the lawyer is a member authorized/entitled to practise law and the jurisdiction in which the lawyer wishes to exercise temporary or permanent mobility must have signed the Agreement and implemented it. Otherwise, the lawyer will be subject to the same mobility requirements as those from non-signatory, non-reciprocating jurisdictions.

In November 2006 the three territorial law societies (Northwest Territories Nunavut, and Yukon) and all the signatories to the National Mobility Agreement signed the Territorial Mobility Agreement. Pursuant to that Agreement the signatories agreed that the territorial law societies will participate in national mobility as reciprocating governing bodies with respect to permanent mobility (transfer of lawyers from one jurisdiction to another), without a requirement that they participate in the temporary mobility provisions. This arrangement may subsist for a period of up to five years. On January 1, 2012 the TMA will expire and the signatories will be under no further obligation and have no further rights under the Territorial Mobility Agreement.

For lawyers who are not authorized/entitled to practise law in jurisdictions that have signed and implemented the National Mobility Agreement, but are entitled to practise in jurisdictions that have signed and implemented the 1994 Inter-Jurisdictional Practice Protocol (IJPP), the IJPP will continue to apply with respect to temporary mobility. With respect to permanent mobility (transfer) lawyers who are not authorized/entitled to practise law in jurisdictions that have signed the National Mobility Agreement or the Territorial Mobility Agreement must comply with the relevant jurisdiction's transfer provisions for non-reciprocating jurisdictions.

Lawyers from jurisdictions that have not implemented any of the Inter- Jurisdictional Practice Protocol, the National Mobility Agreement or the Territorial Mobility Agreement must contact the relevant law society to determine what rules or by-laws are in place to address their situation.

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  4.How can I exercise temporary mobility in Ontario?

By-Law 4 provides for the "occasional practice of law" in Ontario. This by-law sets out the provisions for temporary mobility with or without a permit.

Part VII of By-law 4: Occasional Practice 100 days: ss. 40-45 applies to you if you are authorized to practise law in a territory or province of Canada outside Ontario and the governing body in which you are authorized to practise law has signed the National Mobility Agreement and has enacted rules to implement its provisions.

In such instances, and provided you meet the professional liability insurance and defalcation coverage requirements set out in the by-law, you may without permission of the Law Society of Upper Canada practise law on an occasional basis if you:

(a) are authorized to practise law in a province or territory of Canada outside of Ontario;

(b) are not the subject of a criminal proceeding in any jurisdiction;

(c) are not the subject of a conduct, capacity or competence proceeding in any jurisdiction;

(d) are not the subject, and have no record, of any order made against you by a tribunal of the governing body of the legal profession in any jurisdiction of which you are or were a member that revoked your membership, disbarred you or permitted you to resign;

(e) are not the subject of, and have no record, of any order made against you by a tribunal of the governing body of the legal profession in each province and territory of Canada of which you are a member suspending or limiting your rights and privileges, other than for failure to pay fees or levies to the governing body, for insolvency or bankruptcy or any administrative matter;

(f) do not currently have terms, conditions, limitations or restrictions on your authorization to practise law in each jurisdiction in which you are authorized to practise law; and

(g) do not establish an economic nexus with Ontario. (see below)

If you are ineligible for mobility without prior permission you must apply for a permit to practise law on an occasional basis in Ontario in accordance with the by-law. If permission is granted, the Society may impose such terms and conditions as it considers appropriate. Currently, there is no fee for such an application.

If you are eligible for mobility without a permit and are from a jurisdiction that has not signed and implemented the National Mobility Agreement you may only practise law on an occasional basis in Ontario pursuant to Part VII of By-law 4: Occasional Practice of Law 12 - 10 - 20 ss. 46-52.

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  5.What does "authorized to practise law" mean?

Some provinces and territories use the term "entitled to practise law". Ontario uses "authorized to practise law".

In both cases it means that to be eligible to practise law on an occasional basis in Ontario or to transfer permanently to Ontario (see below) within the NMA you must first meet the requirements imposed by your own law society for its members to be entitled or authorized to practise law.

If you wish to take advantage of section 9 (2) of By-Law 4 you must be or become authorized (entitled) to practise in a reciprocating jurisdiction.

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  6.If I am eligible for mobility under ss. 40-45 of By-law 4 is there any limitation on this eligibility?

You may practise law on an occasional basis for not more than 100 days in a calendar year. "Day" is defined to include any part of day spent working on an Ontario related file. The onus is on you to keep a record of the days on which you practise law on an occasional basis in or with respect to the law of Ontario. The Society may require you to provide proof of compliance with the by-law, including proof of the number of days on which you have practised law on an occasional basis in accordance with By-law 4. This includes any time spent on Ontario files, whether or not you are physically in Ontario.

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  7.Is it possible to extend the 100 days?

Yes, with the permission of the Law Society. You must apply for an extension to the Law Society using the permit application, before the end of the 100 days.

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  8.What constitutes the practice of law under By-law 4?

You will be considered to be practising law in Ontario if you:
(a) perform professional services for others as a barrister or solicitor with respect to, or relying on the laws of Ontario or the laws of Canada applicable to Ontario, or

(b) give legal advice with respect to the laws of Ontario or the laws of Canada applicable to Ontario.

This means that you could be practising law in Ontario whether or not you are physically in Ontario. For example, if you give legal advice with respect to the laws of Ontario on the telephone, by e-mail or through correspondence from a province outside of Ontario you are considered to be practising law in Ontario. You must therefore keep a record of all of these activities as any time spent counts towards the 100 day allotment under the NMA or 20 days otherwise allowed.

It also means that you are practising law in Ontario if you do so with respect to the laws of Canada applicable to Ontario.

Lawyers who practise law on an occasional basis for a single employer (corporate counsel) are also practising law for the purposes of By-Law 4.

You will not be considered to be practising law in Ontario for the purposes of the by-law if you perform professional services or give advice solely on the law of another province.

In addition you will not be required to include in your calculation of the 100 days any time spent practising law as a counsel in a proceeding in

(a) the Supreme Court of Canada,

(b) the Federal Court of Canada,

(c) the Tax Court of Canada,

(d) a tribunal established under an Act of Parliament,

(e) a service tribunal within the meaning of the National Defence Act (Canada),or

(f) the Court Martial Appeal Court of Canada,

including time spent preparing for such proceeding or otherwise furthering the matter.

Check the definition carefully to determine whether your activities come within its scope. If you come within the definition you are subject to the by-law.

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  9.What does it mean to establish an economic nexus with Ontario?

An economic nexus with Ontario is established if, while practising law on an occasional basis in Ontario, you do something that is inconsistent with practising law only on an occasional basis. If this kind of connection is established, you must cease practising law immediately, but may apply to transfer to Ontario.

You would establish an economic nexus with Ontario if you:

  • practise law in Ontario for more than the maximum number of days permitted under Part VII of the by-law,
  • open an office in Ontario from which to practise law,
  • open or operate a trust account at a financial institution located in Ontario,
  • receive money in trust for client, other than as set out below,
  • hold yourself out as willing to accept new clients in Ontario,
  • become resident in Ontario, or
  • act in any manner inconsistent with practising law in Ontario only on an occasional basis.

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10.What happens if I establish an economic nexus with Ontario?

If you establish an economic nexus with Ontario, you are no longer eligible to practise law on an occasional basis in Ontario and must cease doing so immediately. You must apply to become a licensee of the Law Society of Upper Canada if you wish to continue practising law in Ontario. Application for transfer by way of the NMA establishes a nexus with Ontario. If you have applied to become an Ontario Licensee and wish to work here before you are licensed, you must apply for a permit to do so. (see below)

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11.I am a partner (employee, associate) in a law firm with offices throughout the country. Do I establish an economic nexus with Ontario by practising law from our Ontario office?

The by-law provides that you do not establish an economic nexus by reason only that you practise law from an office that is affiliated with a law office in a province or territory of Canada in which you are authorized to practise law.

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12.While I am practising law in Ontario on an occasional basis can I receive money in trust for a client?

If you are permitted to practise law in Ontario on an occasional basis under the by-law you may receive money in trust for a client provided that you pay the money into a trust account at a financial institution located in the province or territory in which you are authorized to practise law (e.g. your home jurisdiction) or you pay the money into a trust account that is kept in the name of and operated by a member of the Law Society of Upper Canada in accordance with By-Law 9 and the money is handled only by that member in accordance with the by-law.

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13.Are there restrictions on advertising when I am practising law on an occasional basis?

Yes. You must not hold yourself out to be qualified or willing to practise law in Ontario except in accordance with By-Law 4 on an occasional basis. All communications including letterhead, business cards or marketing efforts, must conform to this restriction. You can comply with this by clearly identifying the jurisdictions in which you are authorized to practise law.

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14.How will other law societies know I have the right to practise law on an occasional basis in their jurisdiction without a permit?

A National Database exists that allows law societies to determine whether a lawyer is eligible to practise law in a jurisdiction on an occasional basis without a permit. A law society wishing to determine whether a lawyer is eligible for mobility without a permit can access the National Database.

In Ontario some court and correctional facilities require lawyers to provide proof that they are members of the Law Society of Upper Canada. It is unlikely they will accept as valid for their purposes proof that you are a member of another law society.

If you are concerned about being unable to access one of these facilities you may wish to contact the Law Society of Upper Canada to obtain a letter confirming that you are authorized to practise law in Ontario on an occasional basis. There is no guarantee, however, that the facilities in question will accept this authorization, since they are subject to their own rules that may not yet have contemplated mobility provisions.

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15.While I am practising law in Ontario on an occasional basis am I subject to the Law Society Act ?

The Law Society Act, the regulations, by-laws, rules of practice and procedure and the Rules of Professional Conduct apply to you with necessary modifications.

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16.While I am practising law in Ontario on an occasional basis can I commission affidavits?

No. The Commissioner for Taking Affidavits Act provides that barristers and solicitors entitled to practise law in Ontario are commissioners for taking affidavits by virtue of their office. A lawyer practising law on an occasional basis does not meet the necessary definition.

The Notaries Act sets out the basis upon which a person may become a notary in the province of Ontario. The Appointment is done by the Attorney General of Ontario who may appoint such persons as the Attorney General considers fit. The person must apply and meet the criteria set out in the Act .

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17.While I am practising law in Ontario on an occasional basis may I give an undertaking to an Ontario lawyer?

Yes. You are subject to the Law Society of Upper Canada's Rules of Professional Conduct with respect to the giving and fulfilling of undertakings.

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18.If I am in-house counsel in another province do I require professional liability insurance to practise law in Ontario on an occasional basis?

No. Provided you are otherwise eligible to practise law on an occasional basis in Ontario and you continue to function only as in-house counsel while in Ontario you do not require professional liability insurance. For complete information on insurance requirements you should read By-law 6.

19.If I practise as part of an LLP or Professional Corporation in another jurisdiction, does that status automatically apply in the jurisdiction in which I exercise temporary mobility?

The National Mobility Agreement and the rules or by-laws of each signatory jurisdiction set out the rules for mobility for individual lawyers. Lawyers must determine whether the jurisdiction in which they wish to exercise temporary mobility has provisions for LLPs and Professional Corporations and, if so, what those provisions require.

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20.If an allegation of misconduct or incompetence or incapacity is made against me with respect to my practice of law in Ontario on an occasional basis what law society governs the matter?

The law society of the jurisdiction in which you are authorized to practise law will usually take carriage of the matter, in consultation with and with the cooperation of the Law Society of Upper Canada. The Law Society of Upper Canada may take carriage if the governing body of the jurisdiction in which you are authorized to practise law agrees. The primary considerations in making such a decision will be public interest, convenience and cost.

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21.How can I exercise permanent mobility in Ontario i.e. become licensed to practise law in Ontario?

By-Law 4 governs permanent mobility or transfer to the bar of Ontario. If you are authorized/entitled to practise law in a province or territory of Canada outside of Ontario and the law society in a province or territory in which you are authorized/entitled to practise law has signed the National Mobility Agreement or the Territorial Mobility Agreement and implemented the provisions, section 9 (2) of By-Law 4 may apply to you.

If section 9 (2) does not apply to you, section 9 (1) of By-Law 4 applies to you and you must write licensing examinations in order to transfer.

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22.What do I have to do to transfer under section 9 (2) of By-Law 4?

You must first be authorized/entitled to practise law in accordance with the definition given to that term by the law society from which you are making the application to transfer. (See above) Your certificate of standing must state that you are entitled to practise.

If you are not so authorized/entitled to practise law you must (a) take steps to become authorized or entitled, or (b) apply to transfer pursuant to section 9 (1) of By-Law 4 or, (c) enroll in the Licensing Process.

To be called to the bar and admitted and enrolled as a solicitor under section 9 (2) you must,

(a) be authorized to practise law in a province or territory of Canada outside Ontario;

(b) have fulfilled the requirements of the Law Society Act for admission to membership in the Society;

(c) be a graduate with a common law degree from a law school in Canada approved by Convocation or have a certificate of qualification from the National Committee on Accreditation; and

(d) have certified that you have reviewed and understand the reading materials that the Law Society requires you to review.

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23.How do I apply for transfer pursuant to section 9 (2) of By-Law 4?

To obtain an application form and the reading materials contact:

Administrative Compliance (AC)

Upon receipt of the completed application form and fees the Law Society will send you the reading materials and the prescribed form to certify once you complete the review of the materials. The Law Society will then process your application form.

Transfer candidates may now be called to the bar without personal attendance. This procedure is known as the "deemed call".

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24.What is the transfer fee?

The transfer fee pursuant to section 9 (2) of By-law 4 is $1450 plus HST.

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25.What is the nature of the reading materials?

The reading materials are adapted from the Licensing Process materials and include readings on substantive law, professional responsibility and practice management. In addition you will be required to review specified by-laws made under the Law Society Act.

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26.If I become a member of the Law Society of Upper Canada and intend to reside and practise in Ontario but will remain a practising member of the law society in another jurisdiction am I required to have insurance in both?

You may apply for exemption from the insurance requirements in the other jurisdiction provided that you are resident in Ontario and maintain full mandatory professional liability insurance coverage here that is reasonably comparable in coverage and limits to that required of lawyers there.

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