Chapter 15: Governance

In this chapter we consider a number of issues pertaining to the governance of legal aid in Ontario. In chapter 3 we described the governance scheme currently in place. It will be recalled that the Legal Aid Act confers upon the Law Society the authority to "establish and administer a legal aid plan". This responsibility is divided, at the present time, between two Law Society committees, the Legal Aid Committee and the Clinic Funding Committee.

The Legal Aid Committee currently oversees the certificate system and duty counsel services. This Committee currently has eight members, seven of whom are Benchers (elected members of the governing body of the Law Society). The size of the committee was reduced by the Law Society in July, 1996 in order to provide a more "focused stewardship" during the fiscal crisis. Since 1989, the committee had been comprised of fifteen members and one student. Ten of the members were lawyers, five of whom were Benchers. The other five were lay members appointed by the government of Ontario. The reduction eliminated the non-Bencher lawyers and four of the five lay members of the Committee.

The Clinic Funding Committee is composed of five members, including two non-lawyers. Three members are appointed by the Law Society and two by the Attorney General. This committee is responsible for establishing policy and guidelines for funding clinics and for administering the clinic funding program. At the level of individual clinics, important questions of operational policy, including the determination of case priorities, is determined by a local, volunteer board of directors.

The most fundamental issue we must address is whether the Law Society should continue to have responsibility for the governance of legal aid in Ontario. If not the Law Society, then a number of further questions arise. What sort of body or agency should be established, presumably by statute, to assume this responsibility? What should be the relationship of a new body to the government of Ontario, on the one hand, and to the legal profession on the other? What should the composition of the board of a new agency be, and how should it be selected? How should the relationship between the new body and the clinic system be structured? What institutional arrangements should be put into place to secure independence of the agency from government with respect to the provision of legal services and, at the same time, accountability to government with respect to its expenditure of public funds.

We begin our analysis of the central issue-what body should govern legal aid in Ontario-by attempting to identify the goals and objectives of a legal aid governance scheme. The objectives of governance suggest, in turn, the attributes of an ideal governance scheme against which one may measure the appropriateness of existing arrangements in Ontario or alternatives that may be proposed. We then turn to a brief discussion of experience in other jurisdictions in Canada and abroad before returning to the central issue.

THE GOALS AND OBJECTIVES OF GOVERNANCE

At the most abstract level, the goal of institutional governance is to exercise control over an institution in order to achieve institutional objectives. The instruments of governance set directions for the institution, make policy decisions on matters of importance, monitor progress towards institutional objectives and are held accountable for institutional success or failure. While these broad propositions are as true in the context of the governance of legal aid as they are in other contexts, our concern is to identify the special characteristics of legal aid that lead to more precise goals and objectives for its governance. More particularly, our terms of reference require us to consider how the governance of legal aid can best be accomplished in a world in which its funding is subject to a budgetary limit or cap. As will be seen, our thinking about the implications of capped funding for governance issues flows from the new vision for legal aid which we have outlined in Chapter 8.

INDEPENDENCE

The legal aid scheme in Ontario is publicly funded and its most important source of funding is the government of Ontario. Nonetheless, it is of vital importance that the legal aid scheme be, and be seen to be, independent of the government of Ontario. The provincial government is typically the opposing party in a legal aid case, whether as the prosecutor of a criminal offence or as the party in opposition in the types of "poverty law" cases which involve persons in need of legally aided services. In some kinds of family law cases, the government is the opposing party; in others, it is present as an interested party. It would obviously undermine the objective of securing access to justice if the government itself were to be involved in determining the nature and quality of the services being provided to its adversaries in particular cases. As we have indicated, it is our view that the government must commit itself to the independence of the legal aid system with respect to policy-making and decision-making on issues of this kind. The governance structure should reflect that commitment.

A more contentious issue, however, is whether the governance of the legal aid system needs to be, or needs to be seen to be, independent from the legal profession and, if so, whether such independence is secured under current institutional arrangements. We return to these questions below.

ACCOUNTABILITY FOR EFFICIENT USE OF PUBLIC FUNDS

The legal aid system must also be accountable to the government of Ontario and to the general public for its handling of public funds. At the present level of funding, in excess of $200 million of public moneys is being spent on legal aid in the province. The governance structure must be able to reassure the public that the money is being wisely spent. The governors of legal aid must be able and willing to provide the kinds of reports and information that will permit the government and other interested parties to reach informed conclusions about the manner in which public resources have been expended upon legal aid. More particularly, the governance structure should be capable of ensuring that the efficiency of service delivery is enhanced by effective use of well-designed information technology and modern management techniques.

OBTAINING ADEQUATE RESOURCES FOR LEGAL AID

If the legal aid system is to function properly, it must be adequately funded. It is for the government of the day, of course, to determine the trade-offs that must be made between the funding of legal aid and the funding of other important public services and activities. Within that context, however, it is important that the governor of the legal aid system be a credible and effective advocate for the fiscal needs of the legal aid system. The structure of the governance system will have an impact on its effectiveness in this regard.

ABILITY TO DELIVER QUALITY SERVICES IN A BROAD RANGE OF AREAS OF THE LAW

We have indicated that we favour continuation of the current broad mandate of the legal aid system to provide coverage across a broad range of areas of the law that have a significant impact on the lives of potential recipients of legal aid. The governance structure must have the capacity to supervise adequately policy development, planning, and service delivery across the spectrum of services provided on legal aid.

CAPACITY TO PROMOTE CONFIDENCE IN THE LEGAL AID SYSTEM

It is important to the success of a legal aid system that various constituencies who have a stake in the operation of legal aid are confident that the system is being effectively and fairly administered. The system must enjoy such confidence from members of the legal profession whose services and cooperation are of vital importance to its capacity to function. The system must similarly enjoy the confidence of governments which are required to provide funding. As well, of course, the system must enjoy the confidence of the clients it serves and the public more generally. An important feature of the design of a governance system, then, must be that its nature is such as to enhance the ability of the system to enjoy the confidence and support of these various constituencies.

RESPONSIVENESS TO CLIENT NEEDS

We have earlier suggested that the policy development and planning functions of the legal aid system should be animated by a responsiveness to client needs. The services delivered by the legal aid system should be linked to the great variety of individual and community needs of those it serves. The governance structure, therefore, should be one which ensures that procedures are in place to assess actual client needs, and that a true understanding of those needs will inform deliberations at the governance level.

EFFICIENT GOVERNANCE

Ideally, the governance structure should increase the likelihood that the system will be administered in an efficient and competent manner. Administrative success will require governors who can effectively inspire quality and commitment and, as necessary, control wrongdoing, negligent conduct and inefficient operation. It will require governors who have intimate familiarity with the complexity of the legal system and the practice of law in Ontario. It will require governors who understand the realities of poverty and are familiar with the legal needs of low income Ontarians. It will require governors who can bring to bear modern management skills. It will require governors who can deal effectively with broad policy questions. The governance structure of legal aid must be such as to attract all of these sorts of talents and expertise to the table.

COORDINATED MANAGEMENT OF THE ENTIRE LEGAL AID SYSTEM

Ideally, the legal aid system should function as a system in the sense that the resources of each of its parts are directed, in a coordinated fashion, towards the achievement of broad institutional objectives. More particularly, our consultations across the province lead us to believe that greater coordination needs to be achieved between the clinic system and the provision of services through the certificate program. The objective should be to create a "seamless" service able to focus on the greatest needs of the clientele as a whole while respecting the distinctiveness of its parts. It is our view that the ideal structure for the governance of legal aid would be able to manage the entire system in a coordinated fashion.

INNOVATION AND EXPERIMENTATION

As a general matter, it appears obvious that the governance of a legal aid system ought to be open to innovation and experimentation in the delivery of legal services. An emphasis on an experimental approach appears all the more important, however, in the context of a legal aid system which has capped funding. Only through experimentation with a mix of both new and traditional delivery models can a legal aid system develop the most efficient set of delivery models and fashion necessary trade-offs between cost and coverage. Ideally, then, the governance structure must be one that is conducive to an openness to innovation and has the capacity to develop innovative strategies and monitor their success.

GOVERNANCE OF LEGAL AID IN OTHER JURISDICTIONS

A brief survey of governance models in place in other Canadian provinces and in jurisdictions such as England, Australia and the United States suggests a broad range of possibilities for the design of governance structures for legal aid systems. An examination of this kind also indicates that the structure adopted in Ontario-governance of legal aid by the legal profession-is an unusual arrangement. Only two other Canadian provinces-Alberta and New Brunswick-have adopted this model. Outside Canada it is difficult to find another jurisdiction which has adopted this approach. The fact that the Ontario arrangements are unusual does not, of course, demonstrate that they are unsound. However, it may reinforce the view that a reconsideration of these arrangements in the context of a more general examination of the legal aid system is both timely and appropriate.

ENGLAND AND WALES

Prior to 1988, the governance of legal aid in England and Wales was distributed among the profession, the government, and the courts. Responsibility for legal aid in civil matters had originally been given to the Law Society in 1949, following the Rushcliffe Report of 1945. The Law Society reported with respect to legal aid matters to the Lord Chancellor. Criminal matters were, however, handled directly by the courts and were the responsibility of a different cabinet member, the Home Secretary. Responsibility for legal aid in criminal matters was transferred to the Lord Chancellor's office in 1980, and, in the case of the higher courts, is still dealt with by the courts themselves, assisted by the Lord Chancellor's Department.

In 1987, the British government decided to transfer the governance of legal aid-part from criminal legal aid in the higher courts-to a new independent body, the Legal Aid Board. The Lord Chancellor's 1987 White Paper proposing the changes stated: "the Government is determined to ensure that legal aid is provided efficiently and effectively, and that it gives the best possible value for the money spent". The change was implemented by the Legal Aid Act 1988 and the new board took over responsibility for legal aid from the Law Society on April 1st, 1989. The new board was to consist of no fewer than eleven and no more than seventeen, members appointed by the Lord Chancellor. The Law Society's influence on the new board was restricted to the presence of two solicitors appointed by the Lord Chancellor after consultation with the Law Society. There were also to be at least two barristers appointed after consultation with the General Council of the bar. Beyond these requirements, however, the legislation merely specified that "in appointing persons to be members of the Board, the Lord Chancellor shall have regard to desirability of securing that the Board includes persons having expertise in or knowledge of (a) the provision of legal services; (b) the work of the courts and social conditions; and (c) management". The board's membership has generally been twelve or thirteen as the first chairman had strong views about not creating too unwieldy a body. The board membership has always included a large number of persons with a business background. Six of the original twelve appointees had such a background. Three of the current members of the Board are drawn from the plan's senior managers.

There is some evidence to suggest that the new Legal Aid Board has enjoyed success. In June 1996, in response to a fiscal crisis not unlike that endured in Ontario, the Lord Chancellor produced a White Paper, Striking the Balance, advocating substantial reform of the delivery systems for legal aid. The White Paper proposed a cap for the funding of legal aid and suggested a variety of measures designed to improve the efficiency of service delivery. The White Paper did not, however, suggest that reform to the governance structure of the legal aid system was necessary in order to achieve the desired result of being able "to control total spending and target priority areas". Further, a knowledgeable commentator on legal aid in England has recently observed that "the creation of the Legal Aid Board has, over all, been a tremendous success". He noted that the board overhauled the administration that it had inherited and introduced modern management techniques. The board has identified performance targets and published its results against those targets. One of the concerns expressed about the previous administration of legal aid was that it was too decentralized. The new board reduced the autonomy previously enjoyed by the fifteen areas into which the legal aid administration had been divided.

CANADA

As already mentioned, the two provinces whose governance structure for legal aid is similar to the Ontario's in the sense that the structure is dominated by the legal profession acting through the provincial law society are New Brunswick and Alberta. In the other provinces, the typical arrangement is to set up an independent statutory corporation to which responsibility for the administration of legal aid is assigned. For present purposes, a brief sketch of each of the provincial structures will suffice.

New Brunswick

Perhaps the provincial scheme whose governance is closest to Ontario is that found in New Brunswick. The Legal Aid Act confers responsibility for controlling legal aid in the province upon the New Brunswick Barristers' Society. The act provides that the Society may appoint a standing committee on legal aid, to be known as the Legal Aid Committee, consisting of not fewer than five members of the Barristers' Society to advise the Provincial Director on matters of administrative policy and on matters of law, and to perform such other functions as are assigned by this Act and the regulations". As in Ontario, the Society appoints a Director, subject to the approval of the Minister of Justice. The statute also provides, like its Ontario counterpart, for the appointment by Cabinet of an advisory committee to the Minister of Justice.

Alberta

Although governance of the Alberta legal aid scheme may also be said to be dominated by the legal profession, the scheme in Alberta is rather more complicated than that in Ontario and New Brunswick. Though there is no separate legal aid legislation in Alberta, provision is made in the Legal Profession Act for the operation by the Law Society of Alberta of "a plan to provide legal aid to persons in need of it in civil matters or criminal matters or both" by means of an agreement entered for this purpose.

Under the act, the Benchers have the authority to make the rules respecting the operation of the plan, appoint its director, control the finances and establish the board to administer the plan. In practice, however, the plan is run by a board set up as a non-profit corporation, the Legal Aid Society, which reports to the Law Society and the Attorney General. Under a 1979 agreement entered into with the Attorney General, the Law Society has delegated the administration of the plan to the Legal Aid Society. Accordingly, the Legal Aid Society has substantially more independence from the Law Society than exists under the Ontario scheme. Nonetheless, the Legal Aid Society "acts within rules established and amended from time to time by the Benchers of the Law Society of Alberta." The composition of the board of the Legal Aid Society is established on the basis of an agreement between the government and the Law Society. The board is normally made up of twelve lawyers and three non-lawyers. Two members are named by the Law Society, two by the Attorney General, one by the government of Canada and ten are selected jointly by the Law Society and the Attorney General.

British Columbia

Prior to 1979, the responsibility for legal aid services was divided between the Legal Aid Society, which was a creature of the Law Society, and the Legal Services Commission which had been established in 1975 as a device for channelling government funds to worthwhile legal aid projects. The commission provided funds for the Legal Aid Society's judicare system, as well as fostering the development of the type of community clinics which were then being established in Ontario. The commission was governed by a board of five members, two appointed by the government, two by the Law Society and one by the provincial government after consultation with the federal government.

In 1979, the Legal Services Society was established with a view to bringing most publicly funded legal services programs under one governance umbrella. The Society's board consists of fourteen directors, seven of whom are appointed by the government, seven by the Law Society after consultation with the British Columbia branch of the Canadian Bar Association. At least two of the seven persons appointed by the government and by the Law Society were required to be non-lawyers. Although this board was much larger than that of the commission, the legislation provided for an executive committee of not more than five persons. A 1992 provincially sponsored study of legal aid services, the Agg Report, recommended that the board be restructured to provide for greater integration of the judicare and the clinic sides of legal aid system in the province. In response, the legislation establishing the Society was amended to provide for a fifteen-member Board, with representation divided equally among government appointees, Law Society appointees, and community clinic appointees. The latter five consist of two persons appointed by the Association of Community Law Offices, two from the Native Community Law Offices and one appointed by the other four community clinic members.

Manitoba

The statutory legal aid scheme in Manitoba, first enacted in 1971, is governed by a body established by that statute, the Legal Aid Services Society of Manitoba. The twelve member board of the Society is appointed by the government. Three of the twelve members must be drawn from a list of seven lawyers selected by the Law Society of Manitoba. One member is to be a lawyer employed by the Legal Aid Services Society. Another is a person nominated by the federal government. The other seven members are chosen by the government. Four of the seven must be non-lawyers. Historically, the lay members and the other non-designated positions are filled with persons with political ties to the government. Members have renewable terms of only one year. The government of the day thus has a strong voice in the make-up of the board.

Newfoundland

The legal aid scheme in Newfoundland is provided for by the 1975 Legal Aid Act. The act establishes a seven-member board to administer the legal aid system. The board members are appointed for a renewable two-year term. Five of the members are appointed by the government, three of whom are drawn from a list submitted by the Law Society of Newfoundland. The other two members of the board are the Deputy Minister of Justice and the Provincial Director of Legal Aid.

Nova Scotia

The legal aid system in Nova Scotia began in 1971 on the basis of an agreement between the province and the Nova Scotia Barristers' Society that established a plan to be operated by the Barristers' Society. Under the present Legal Aid Act, passed in 1977, however, the legal aid system is governed by a statutory commission. The commission consists of seventeen members appointed by the government, seven of whom are selected from persons nominated by the Barristers' Society. A recent evaluation of legal aid in Nova Scotia undertaken by a group which included several judges, the executive director of the Barristers' Society, and several other lawyers suggested that the composition of the commission should be reconsidered. The review team suggested that the current arrangements reflected the thinking of the time at which the commission was established. This was to the effect that the government and the Barristers' Society knew what was best for the fledgling legal aid service and its indigent clientele. The composition of the commission would be improved, in their view, if it was drawn from three constituencies - the clients as users of legal aid, the bar as service providers and the government as funder.

Quebec

The legal aid scheme in Quebec is established under the Legal Aid Act. That act establishes a legal services agency, "Commission des Services Juridiques" which governs the legal aid plan. Neither the statute nor the regulations promulgated under the act place restrictions on the composition of the board. The act does state, however, that the commission is to consist of "twelve members chosen from those groups of persons who because of their activities are likely to contribute to the study and solution of the legal problems of the underprivileged and appointed by the [government] after consultations with these groups". A full time chair and vice-chair are chosen by the government from the twelve members. In addition, the Deputy Ministers of Justice and Social Affairs or their delegates sit as non-voting ex-officio members of the Commission. Members are appointed for renewable three-year terms. The chair and vice-chair, however, may be appointed for a period of ten years, which "once fixed [may] not be reduced". At the local level, legal aid services are administered by "regional legal aid corporations established by the Commission for each of the regions determined by it, taking into account the existing administrative divisions and judicial districts". Each of the regional legal aid corporations is governed by its twelve-member unremunerated board. Membership of these boards is appointed by the commission and typically is evenly divided between lawyers and non-lawyers resident within the region in question.

Saskatchewan

Legal aid in Saskatchewan was initially established under the Community Legal Services Act of 1974. The act creates a statutory commission which governs the legal aid system. The composition of the eleven-member commission has changed over time. Whereas the 1974 act contained no requirement that non-lawyers be appointed to the commission, amendments in 1983 required that four members of the commission be non-lawyers. Amendments enacted in 1989 provide that six of the eleven members of the commission are to be appointed by the government, four of whom must be non-lawyers. Of the remaining five members, two are to be nominated by the Law Society, two are provincial employees, one each from the Department of Justice and the Department of Social Services; and one is to be a lawyer nominated by the federal Department of Justice.

Prince Edward Island

Although legislation was enacted in 1973 to establish a legal aid system, the legislation was never proclaimed in force. At the present time, legal aid is managed within the Attorney General's Department, with services being provided essentially by a small group of staff lawyers.

AUSTRALIA

Although, as in Canada, legal aid is administered at the state rather than the federal level in Australia, the federal government plays a much stronger role in the funding of legal aid in Australia than is the case in Canada. This appears, at least in part, to provide an explanation for the fact that there is a greater uniformity in legal aid from one state to another in Australia than is the case with the Canadian provinces. This is also true with respect to questions of governance. At the risk of some oversimplification, it may be said that the governance structures in Australian state legal aid schemes are rather similar to those in the Canadian provinces that have established independent statutory agencies or commissions to govern their legal aid schemes. In the Australian states, the legal aid commissions consist of five to ten members, (typically seven), who are normally appointed by the government of the state. Typically the government's ability to appoint is constrained by requirements to consult with or accept nominations from the state law society, the federal government or other interested stakeholders. None of the state boards are directly controlled by a law society.

UNITED STATES

The rich and varied nature of American experience in the legal aid field bedevils any attempt to provide a brief sketch of it or, indeed, to make useful comparisons. Unlike in Canada, Australia and England, criminal and civil legal aid are entirely separate worlds in the United States. With respect to criminal legal aid, the U.S. experience is divided between federal and state jurisdictions. Federal criminal legal aid falls ultimately under the responsibility of the Judicial Council of the Federal Circuit. Services are provided by federal defender organizations or community defender organizations, the former being more directly under the control of the Judicial Council and the latter typically being local non-profit corporations governed by boards of directors. At the state level, the states are responsible for providing criminal legal aid programs. Only sixteen states are organized at the state level, the rest being organized at county or court district levels. In some states, funds are distributed to county organizations by state-wide commissions. Some state-wide legal aid systems operate under the executive branch, some under the judicial branch and others as an independent public or private agency. In the southern states, the public defenders are appointed by the governor. In several districts of Florida the public defender is elected. In those states which operate strictly on a county or regional basis, there may be considerable variation from one county to the next with respect to both governance models and delivery systems.

There is greater uniformity on the civil side, however, because of the involvement of the federal government in funding "poverty law" offices which bear some similarity to Ontario clinics. As part of the "war on poverty" in the 1960's, the Office of Economic Opportunity Legal Services Program was established by Congress in 1964. This program was replaced by the establishment of the Legal Services Corporation in 1974. The principal function of the corporation is the transferring of grants to a variety of clinics and other similar legal aid programs at federal, state, municipal, and county levels. Local clinics may also receive grants from state programs similar to Canadian provincial law foundations which gather and disburse the interest earned on lawyers' trust accounts. The corporation's board is composed of eleven members appointed by the President and confirmed by the Senate. The enabling legislation requires that no more than half of the members of the board be from the same political party. The legislation further provides that the majority of the board's members must be lawyers.

THE CASE FOR CHANGE IN ONTARIO

Against this background, we return to the central governance issue facing the Review; that is whether legal aid in Ontario should continue to be governed by the Law Society of Upper Canada, or, rather, should be governed by some form of statutory agency or commission of the kind established, as we have seen, in many other jurisdictions in Canada and abroad. Our analysis of this issue is organized around the attributes of an ideal governance structure set out in Part 1 of this chapter. In each case, we compare the advantages and disadvantages of the current Ontario model and possible alternatives.

INDEPENDENCE

In its submission to the Review titled "Governance of the Ontario Legal Aid Plan," the Law Society stressed the importance of the independence of the administration of legal aid from the government of the day. Moreover, it emphasized that the very purpose of its own role as the self-governing regulator of the legal profession is to preserve the independence of the bar. In our view, the Society is justifiably proud of its two-hundred-year history of independent administration of the affairs of the profession in Ontario. Further, we share the view that the independence of the bar is of fundamental importance to the proper administration of justice, and, indeed, the health of a democratic society.

It is difficult to imagine a governor of the legal aid system which could be, in this sense, more independent of government. It might well be difficult for an independent statutory agency, however constructed, to match this level of independence. We believe this to be true, notwithstanding the fact that various methods could be devised for either constraining the appointment power of the government of the membership of a statutory agency or of insulating board members from immediate pressures by establishing lengthy or staggered terms. However constructed, a statutory agency would have difficulty replicating the institutional mass of the legal profession which enables it to use its independence as a counterweight to government in some circumstances.

A more difficult question, however, is whether the Law Society can truly insulate itself from the interests of the profession. It is appropriate to ask whether the Law Society, in making decisions about the use of particular delivery models, can completely ignore the fact that a substantial number of members of the profession have a direct financial interest in the continuation of the status quo, that is, in the dominance of the judicare or certificate model in the Ontario legal aid system. Indeed, the most recent annual report of the Plan reports that almost 40 per cent of Ontario's 17,000 lawyers in private practice participate in legal aid by providing legal services on the basis of certificates. It is also true, however, that of these 6,786 lawyers who have been retained on certificates in the 1995/96 fiscal year, just over 43 per cent of them billed less than $10,000. Nonetheless, one suspects that a very substantial majority of lawyers who engage in litigation work have earned money, in many cases substantial amounts of money, from our current judicare system.

Our consultations around the province suggest that it would be naïve in the extreme to pretend that the Benchers, who are elected by their professional colleagues, are not under considerable political pressure to preserve the judicare system more or less in its current form. It is much more difficult, however, to assess the extent to which any particular Bencher may yield, perhaps unwittingly, to such pressures. In its submission to the Review, the Law Society, quite properly reminds us that the Society's mandate is to govern the profession in the public interest and not in the interest of the profession. The Law Society is not a professional association whose role it is to promote the interests of its members. No doubt, the Law Society has made and must make decisions that are not popular with individual and perhaps large numbers of members of the profession. On balance, presumably, a majority of the profession sees this as a cost of self-regulation which nonetheless does not make it less attractive than the obvious alternatives.

Though it is a striking fact that the three Canadian legal aid systems that are dominated by the judicare model are also the systems that are governed by the profession, we are reluctant to conclude that the Legal Aid Committee, over the years, has yielded to political pressure arising from professional self-interest. We simply have no factual foundation for such a conclusion. Nor do we doubt the sincerity of the many members of the profession who made submissions to the Review indicating their belief in the merits of the judicare system.

It is also apparent, however, that there is a widespread perception both within and outside the profession that the Law Society cannot reasonably be expected to be completely immune to the political pressure within the profession in support of judicare. The importance of this perception to the present analysis is a point to which we will return below. A statutory body or agency, on the other hand, could be designed in such a way as to insulate the body from direct political pressure from members of the profession.

ACCOUNTABILITY FOR EFFICIENT USE OF PUBLIC FUNDS

Few would question the desirability of a high degree of accountability to the government, and to the public generally, of an institution that spends hundreds of millions of dollars of public money. The concept of accountability may, however, conflict to some extent with the notion that the legal aid system must be functionally independent of government.

In principle, a distinction between independence and accountability can be drawn. The legal aid system needs to be independent from government in decision-making with respect to the nature and extent of legal services to be provided in cases involving the government as the adversary of the legal aid client. The legal aid system also needs to be independent from the administrators of government agencies and programs that might prefer efficiency over the fair and effective adjudication of rights. On the other hand, a legal aid system needs to be highly accountable to the governments which fund legal aid for the proper and efficient use of public moneys.

In the first place, it is our view that the legitimate interests of government are not restricted to accountability in a narrow financial or auditing sense, that is, to ensuring that legal aid dollars are spent on the provision of legal aid services and the administration of the Plan. Increasingly, governments are concerned about the effective and efficient use of public funds and it is this interest which may create some tension between the need for independence on the one hand, and accountability, on the other. The tensions between the Law Society and the government during the fiscal crisis and surrounding the negotiations of the Memorandum of Understanding provided an illustration of this phenomenon, which tends to suggest that an increase in the tension between independence and accountability is the likely product of an era of fiscal restraint. Surely it is unrealistic, especially in a world of capped funding, to suggest that complete independence on the expenditure side can be coupled with total dependence on public funding.

A statutory agency whose membership could be appointed in whole or in part by government would likely accept a broader view of the legitimate range of the government's accountability interest than one not so composed. Whether or not such a body could more effectively reconcile tensions between independence and accountability is a much more difficult question. In our view, the answer to this question is to be found by reflecting upon the need for public confidence in the governance of the legal aid system, a point to which we return below.

OBTAINING ADEQUATE RESOURCES FOR LEGAL AID

Many take the view that one of the more important reasons for maintaining the Law Society as the governor of the legal aid system is that it is likely to be more effective than other potential governors in advocating on behalf of the legal aid system in the competition for public funds. The Law Society has a long history of successful advocacy on behalf of legal aid, and it may be said that its mettle in this regard has been tested, and not found wanting, in the recent negotiations with the government concerning the creation of the Memorandum of Understanding. Although we respect these views and the long and honourable history of advocacy of this kind by the Law Society, we are less convinced that the Law Society is necessarily the only, or perhaps even the most effective, advocate for legal aid interests within government. To the extent that a particular government may perceive, whether correctly or not, that the legal aid system is inefficiently run, and to the extent that this perception or misperception rests on assumptions relating to the nature of the governance system, it might well be that government can be more effectively persuaded of the need for public resources to be devoted to legal aid by an agency whose governance structure inspires greater confidence from government with respect to these issues. Again, though we concede this to be a difficult question, we believe that it is possible for reasons such as these that a statutory agency or commission may perform a very effective role in this regard, especially if it is able to secure the continuing support of the Law Society and other professional organizations.

ABILITY TO DELIVER QUALITY SERVICES IN A BROAD RANGE OF AREAS OF THE LAW

There can be no doubt about the ability of the Law Society to marshall the legal expertise required to adequately supervise and administer a scheme which attempts to offer a broad range of services through the legal aid system. The more difficult question is whether a statutory body or agency could enjoy similar success. Could a statutory body draw upon the same range of expertise and the capacity for voluntarism or special efforts now enjoyed by the Plan? Again, this is a difficult question. It is not at all clear that the willingness of members of the profession to "go the extra mile" for the legal aid client or the legal aid system is contingent upon a continuing role for the Law Society in its governance. Experience elsewhere in Canada and in the United States, certainly, suggests that the profession's capacity for voluntarism rests on the sturdier ground of professional values rather than legal aid governance structures. It is clear, however, that the success of a new body in successfully mounting a full range of legal services under a capped funding system will be dependent on the credibility of the organization with the profession and the extensive involvement of members of the profession in its leadership.

EFFICIENT GOVERNANCE

Efficient governance of the legal aid system requires substantial involvement of knowledgeable and experienced lawyers who can bring a legal perspective to bear on service-delivery issues. In this respect, of course, the governance of the legal aid system by the Law Society ensures that such expertise takes a central role in management of the Plan. It is less obvious that the Law Society is well positioned to undertake programs of quality assurance. It might be difficult for the Law Society to undertake quality-assurance programs specifically targeted on legal aid service delivery. In any event, it would appear that comprehensive initiatives of this kind have not been undertaken over the years.

More important, we believe that experience in other jurisdictions has demonstrated that it is crucial to bring other kinds of expertise to bear on the management of very large publicly funded legal aid programs. In response to a perceived need of this kind, the British government appointed as six of the original twelve directors of the Legal Aid Board persons with business background and management experience. The chairman of the board is a former chairman and chief executive officer of a large chemical company. The involvement of a substantial element of non-legal expertise in the governance structure is more likely to occur, we would suggest, in the context of a governance structure based on the independent statutory agency model.

COORDINATED MANAGEMENT OF THE ENTIRE SYSTEM

Under the current structure in Ontario, as we have seen, the certificate side of the system and the clinic system function as two separate entities. They are governed by two separate committees of the Law Society and they have completely separate budgetary arrangements. As already noted, these arrangements were put in place on the advice of the Grange Commission, in order to preclude the possibility that the Law Society as governor might drain away the resources of the clinic side of the system in order to expand the certificate program which has always been more popular among its members. In our consultations around the province, we became increasingly aware of the variable extent to which there exists cooperation between clinics and Area Directors in providing a coordinated approach to service delivery in particular communities. We are convinced that a lack of coordination in this respect is a significant issue for the system more generally, and that this is an issue that is most likely to be resolved by bringing the two sides of the Ontario legal aid system together under one governance structure, albeit one which continues to foster the unique features of the clinic system. This is difficult to accomplish if the Law Society remains as a governor of the Plan. We believe that it would be less difficult to effect a change of this kind if a new governance structure was developed.

INNOVATION AND EXPERIMENTATION

We have suggested earlier that the exercise of priority-setting made necessary by the capping of legal aid funding is an exercise best accomplished if room is allowed for some innovation and experimentation with different types of delivery models. It must be asked, then, whether the current governance structure is conducive to innovation and experimentation of this kind. It would appear that, as a general proposition, provincial law societies tend to favour the judicare model.

In Ontario, the history of legal aid supports the view that the Law Society is wedded to this approach. Although there is a vigorous clinic system in Ontario, it would be wrong, as a matter of history, to credit the Law Society with having pioneered in this field. Further, although there are some very limited pilot projects involving alternative delivery models currently being tested, these would appear to be experiments which have been imposed upon rather than initiated by the Society. Certainly, some innovation and experimentation, for example with duty counsel, has occurred in the past and it may be that more would occur in the future under current governance arrangements. Nonetheless, it is our view that the prospects for a greater level of innovation of the type needed at the present time is more likely to occur under a new governance model.

CONCLUSION

We conclude from the foregoing analysis that the governance structure of legal aid in Ontario requires reform. More particularly, we think that a number of considerations suggest that governance of the system should be transferred from the Law Society to an independent statutory agency constructed in such a way as to try to capture a fuller set of the attributes of an ideal governance model than is inherent in the Law Society model. A new model, we believe, could more effectively understand, assess and respond to the broad range of legal needs of low-income Ontarians. It could more effectively integrate management and financial expertise at the highest level of governance. It could conduct a greater level of experimentation and innovation with delivery models than is currently the case. It could more effectively coordinate the certificate system and the clinic system. We believe that it could promote confidence in the legal aid system by demonstrating convincingly that public funds devoted to legal aid are used in an effective and efficient fashion. In so doing, it could act as an effective advocate for funding levels of a kind truly required by the system.

There are, of course, some advantages to Law Society governance that are difficult to replicate in another model. The unquestioned independence of the Society from government is one such advantage. The substantial involvement in the management of the Plan by leading members of the profession is another. We would hope, however, that a new agency could be designed to preserve the independence of the legal aid system and to promote the substantial involvement of the bar, both in its governance and in its service-delivery work. In the next section, we turn to a consideration of how such an independent agency could be structured.

A NEW GOVERNANCE MODEL FOR LEGAL AID IN ONTARIO

INTRODUCTION

For the reasons outlined above, we have concluded that the governance of the legal aid system in Ontario should be assigned to a new independent statutory agency. We have indicated why we believe that a new governance structure is desirable and what the attributes of an ideal governance structure would be. In this section, we offer a more specific proposal which attempts to strike an appropriate balance between independence and accountability, and enhances the governor's ability to provide efficient high-quality legal aid services in the context of a legal aid system with a fixed budget.

In essence, our approach is one of establishing a strong independent agency, which, by the nature of its mandate and structure, will inspire confidence in the legal aid system among members of the public, the legal profession, the government, and, most importantly, the clients served by the system. In our view, the government should play a critical role in the appointment of the members of the agency and should assume political responsibility for the definition of its mandate. It is also our view, however, that once the government has established an agency in which it can have confidence and given it a mandate, the government should, in the normal course of events, allow the agency to get on with the job assigned to it.

IMPLEMENTING THE NEW VISION OF LEGAL AID

In chapter 8 of this report, we have set out our vision for the legal aid system in the form of a series of commitments exchanged between the legal aid system and the government. The first commitment, a shared view of the fundamental purpose of legal aid, relates to the mandate of the legal aid system. We have suggested that the current approach of the legal aid system in Ontario, which is to take a broad view of the need for access to justice, is one which should continue to inform the system design. In our view, the mandate of the new agency should specifically indicate that it is to provide legal aid services, as is at present the case, in such areas as criminal law, family law, immigration and refugee law, and "poverty law". The mandate of the new agency should be stated, in our view, in an authoritative fashion, preferably in the enabling legislation for the agency.

In designing the agency that should carry out this mandate, care should be taken to ensure that the agency has the capacity to carry out the commitments which we have identified for it in our vision for the system. The agency should be able to assess, fully understand and focus on client needs. It should be able to ensure high quality services across the province. It should be able to set priorities for service delivery in order to target available resources appropriately, to cases where representation will have the greatest impact. It needs to be able to demonstrate that legal services are being provided in a cost-effective manner. It must operate a legal aid system that is flexible, innovative and experimental in order to maximize its ability to meet legal needs effectively and efficiently. The agency must be able to assume responsibilities as an agent of change in the sense that it will undertake ongoing research and policy development, on the basis of which it will fashion and promote law-reform strategies which will enhance access to justice and an efficient, integrated justice system. And it must do all of this in a way which protects resource-allocation decisions from government interference.

For its part, the government, having established an agency in which it places confidence to provide a cost-effective high-quality of legal aid service, should be prepared to live up to the commitments we envisage for it. The government should be prepared to commit itself to the independence of the legal aid system. It should ensure adequate multiyear stable funding to enable the agency to carry out its responsibilities, and it should undertake a shared responsibility with respect to the ongoing scrutiny and reform of the administration of justice in the province. The government must, of course, determine the nature of its own financial contribution to the legal aid system. But once having set the budget for the provincial contribution to legal aid and having assigned the agency a mandate to deliver a particular range of services, the government should permit the agency to determine its own method of priority-setting and service delivery in providing the mandated services.

THE BOARD OF THE AGENCY

The composition of the board of the agency is of critical importance for two reasons. First, one of the justifications for establishing a new agency is that new kinds of expertise need to be brought to bear on the governance of the legal aid system. It is therefore important that the composition of the board be structured to ensure that such expertise will be present, along with substantial legal expertise. Second, the composition of the board will send out important signals to the various constituencies who have an interest in legal aid and will therefore be of some importance in developing the confidence of those constituencies in the governance of the legal aid system.

One possible means for ensuring constituency satisfaction with the composition of the board, of course, is to simply allow various relevant constituencies to appoint representatives to the board. We do not favour this approach for three reasons. First, the list of interested constituencies is very lengthy indeed. It would simply not be practical to have them all appoint members to the board. Second, it is not our view that the decision-making of the board of the agency should be made on the basis of constituency representation. There is a risk that those who are appointed to represent constituencies will take the view that they must vote on behalf of the interests of those constituencies. We believe that more effective management of the legal aid system will result from the appointment of a board composed of members who have been appointed without such constraints on the exercise of their personal judgement. Third, we believe that the establishment of satisfactory composition of a board in circumstances such as these is a task which ought to be discharged by the government. Accordingly, subject to one reservation, we believe that appointments to the board of the agency ought to be made by the cabinet, upon the advice of the Attorney General.

The one reservation or constraint on the ability of the Attorney-General to nominate members of the board relates to the role of the Law Society. We believe that it will be crucial to the success of the new agency that the legal profession is heavily involved in the governance and administration of the legal aid scheme and that a significant number of members of the board should be appointed by the Attorney General on the advice of the Law Society. Apart from this constraint, we favour allowing the Attorney General reasonable latitude in selecting candidates for the board in order to attempt to achieve as sound a balance as possible of the various groups with a claim to be represented. We are attracted by the approach taken in the English legislation which, apart from ensuring that four members of the profession are appointed after consultation with appropriate professional bodies, simply requires that, "in appointing persons to be members of the Board, the Lord Chancellor shall have regard to the desirability of securing that the Board includes persons having expertise in or knowledge of (a) the provision of legal services; (b) the work of the courts and social conditions; and (c) management." We would, however, expand this list to make it clear that knowledge of the work of the administrative tribunals which are so important in the poverty context is included as well as an understanding of the legal needs of low-income Ontarians.

We envisage a board which is not too large in order to ensure that individual members feel very much involved in its work. A board of eleven persons would be appropriate, in our view. Of the eleven, we would suggest that four be nominated by the Attorney General from a list of ten provided by the Law Society, two of whom must be lawyers who have significant connection with the clinic system, it being envisaged that at least one of the lawyers selected by the Attorney General from the Law Society slate would have a good knowledge and understanding of the clinic system. We suggest that the lawyers recommended by the Law Society need not be Benchers. Perhaps it would be useful to require the Treasurer of the Law Society to consult with the Chief Justice of Ontario with respect to the identity of the Law Society nominees, provided that the Chief Justice consented to such an arrangement. In this fashion, we anticipate that the Law Society nominees on the Board would be members of the profession in whom both the Law Society and the judiciary would have confidence.

In our view, although the Attorney General should not be precluded from appointing further lawyers to the board, we would expect that the board would contain substantial lay representation, including at least two members who would bring management and financial expertise to the board. Other members would bring expertise on the legal needs of low-income Ontarians and on the means by which they may be met. Consistent with our proposed focus on client needs, non-lawyers could also bring to the board the insights of other disciplines relevant to an understanding of the legal needs of low-income Ontarians and a consumer or client perspective. The Attorney General, in our view, should identify candidates for appointment to the board after appropriate consultation with a broad range of stakeholders and organizations having expertise in the legal needs of low-income Ontarians. Finally, it is our view that the chief executive officer of the agency should also sit on the board as a full voting member. As is currently the case in Ontario with respect to the appointment of the director of the Plan, the appointment of the chief executive officer would be made by the board of the agency with the approval of the Attorney General.

The length of the term of membership on the board is a matter of importance with respect to the independence of the board. If, as in Manitoba, board members are appointed for one-year terms, the government of the day will have more control over the appointment process than, in our view, is desirable. A new government could replace the entire board shortly after taking office. A better approach, in our view, would be to appoint for three- or four- year terms and to do so on a staggered basis. Thus, in the life of any one government, the government would have a significant impact on the composition of the board, but the composition of the board would also enjoy some stability and continuity. It should be possible to appoint an existing member for a further term. Otherwise, the possible advantages for accumulated expertise and experience might be lost. The government should be able to remove board members for "cause."

The regular members of the board could serve part-time and would be remunerated in the modest fashion typical of board appointments in the provincial public sector. It is less obvious whether the positions of chair or vice-chair should be permanent or part-time. We would envisage that they would be more extensively involved in the work of the board than regular members, but that their appointments could be on a part-time basis also. The chair and vice-chair of the board should be appointed by the Attorney General after consultation with the Treasurer of the Law Society. It might well be appropriate to have longer terms of office for the chair and vice-chair than for regular members.

RESPONSIBILITIES OF THE BOARD

Broadly speaking, the board should ensure that the commitments of the agency set forth in our new vision for legal aid are implemented. Within the mandate of the agency determined by the government, the agency would be responsible for policy-making and strategic planning. The policy-making and strategic planning of the agency should be transparent to the Ministry of the Attorney General (and as well, of course, to the general public) so that progress towards stated objectives can be measured both by the agency and by the Ministry. Strategic plans for the legal aid system as a whole should be prepared by the agency, revised regularly and made available to the government and the public at large. Such plans would include: an assessment of the current and future demand for different legal aid services; the development of strategic or program objectives designed to meet those needs; and the development of performance measures against which the achievement of those objectives can be assessed. Such plans would be informed by ongoing assessment of pilot projects and current delivery models.

Of course, the strategic-planning process must not be static. The board must have the capacity to alter the strategic plan in the event of changing circumstances. Finally, strategic planning at the provincial level is necessarily related to strategic planning at the local level. Provincial planning should both respond to and inform planning at the local level.

The board would be responsible for all expenditures of public funds and would comply with government requirements concerning reports and audits. The board would assume responsibility for and be accountable for the management of the agency, and for the operation of the service-delivery system. It would determine service priorities and delivery mechanisms, and allocate resources in accord with those priority determinations.

The board would be responsible for financial management and the budgetary planning of the agency. The board would develop programs designed to ensure cost-effectiveness of service delivery, quality assurance and responsiveness to client needs. The board would also establish a research, program-evaluation and policy function which would enable the agency to discharge its responsibility to identify and assist in the reforming of systemic inefficiencies in the administration of justice and barriers to access to justice. The board would advocate for appropriate levels of funding from all funding sources. It would formulate requests for provincial funding, which would be forwarded to the Attorney General, whose officials would first vet the proposal and then shepherd it through government approval processes. The board would determine the management and organizational structure for the agency. It would develop human-resources planning and it would play a direct role in the hiring of senior management. It would develop the agency's capacity to participate in the development of an integrated justice system in collaboration with other system partners. For example, if a court services agency were to be established by the province of Ontario, collaborative interaction between it and the legal aid agency would be instrumental in facilitating the development of a more integrated approach to problem identification and resolution in the broader justice system.

NAME AND ORGANIZATIONAL STRUCTURE OF THE AGENCY

In an attempt to provide some guidance for those who must ultimately assume responsibility for making decisions with respect to these matters, we thought it might be helpful to craft a picture of how we imagine the agency in terms of its name and general organizational structure.

The name of the agency should reflect, in our view, the broad range of services it provides other than those traditionally considered to be "legal aid". Thus, we prefer "legal services" to "legal aid." Further, we favour use of the term "corporation" for the agency for two reasons. First, we think it would be useful to signal, through the use of this term, that the affairs of the agency will be conducted in a business-like fashion in the sense that an explicit attempt will be made to incorporate modern management techniques appropriate to the functioning of a large agency of this kind. Second, we hope that use of the term "corporation" would assist in signalling the separateness of the legal services agency from government and enhance public confidence in its independence. For these reasons, we are attracted by the name, "Legal Services Corporation of Ontario".

Although responsibility for the design of the organizational structure of the new agency will be assumed by its board, our deliberations have touched upon organizational matters and we offer some tentative suggestions, essentially for purposes of facilitating discussion of these issues by the board.

We envisage four functional service groups or streams reporting to the senior management of the Legal Services Corporation. The four functions would be Corporate Services (information technology, human resources, financial administration, communications, legal accounts, collections, investigations and complaints, financial assessment); Policy and Planning (policy development, planning, research, evaluation, needs assessment, quality assurance, law reform, equity issues, appeals support); Clinic System (community clinics, student clinics, central support services for the clinic system); and Program Operations (certificate systems, staff offices, duty counsel, block contracting).

We wish to elaborate on two points relating to these functional groupings. First, we suggest that the clinic system be brought into the agency as a system reporting directly to senior management rather than simply being dispersed throughout the various areas of the existing Plan and reporting to the local Area Director. Although, as we have indicated, we favour the integration of the clinic system with the rest of the legal aid system, we do not favour its dispersal. We believe that it would be very important, particularly in the short term, to preserve the integrity of the clinic system for purposes of planning, coordination and funding. The development of an integrated approach to issues such as the development of community boards and consistency of service delivery suggest that the preservation of a separate reporting line for clinics is an appropriate approach. We do favour, however, a greater degree of interaction between clinics and the local Area Directors. We would envisage, as a possibility at least, that in the new service delivery system the Area Director or designate might sit on the local clinic's board, and conversely a clinic representative would sit on the local Area Committee.

Second, we would emphasize the importance of the policy, program evaluation and planning function in the new agency by assigning responsibility for policy and planning at a senior level. The policy and planning function will have a very important role to play in an agency that is innovative and experimental in its service-delivery models and in attempting to act as an agent of change within the legal system more generally.

Finally, we would suggest an organizational structure that is relatively flat. In particular, we do not favour the insertion of a regional level of management of the legal aid system to which local Area Directors, and perhaps clinics, would report. One argument for establishing a regional level of governance is that both the courts and the Crown Attorneys have moved from a county based organization to an organization based on judicial regions, of which there are now six in the province. The legal aid system which is still organized on a county-based model, appears out of step. We do not find this consideration persuasive. It is not at all obvious, we suggest, that the considerations weighing in favour of regional courts administration also apply to legal aid. Legal aid appears to have a greater need for some ìhands onî administration at the local level. Nonetheless, it can be argued in support of a regional structure that there might be some need for separate reporting and policy-making at this level. For example, it might be that decisions with respect to the particular mix of delivery models to be used in a particular region could be made at that level. Our own view, however, is that decisions with respect to the mix of delivery models to be used ought to be made centrally. Indeed, we are not persuaded that there are issues that need to be determined at the regional level and thus we do not consider the establishment of a regional level of legal aid administration to be warranted. No doubt there could be greater coordination of activities of various kinds by the Area Directors within a particular region. To accomplish this objective we would suggest that one of the Area Directors within each region be identified as the Regional Senior Area Director for the purpose of carrying out coordination activities of this kind. If the experience of administration of the new system demonstrates a need for a stronger role at the regional level, this question could obviously be revisited.

In our picture of the new agency, then, the Area Director would continue to be the face of the non-clinic legal aid system in the local community. In our meetings across the province, we have been impressed with the importance of the role performed by Area Directors. On the other hand, it is not clear to us that separate Area Directors are necessarily required in each of the communities which now have an Area Director of their own. We would suggest that the number of Area Directors could be reduced by assigning some the responsibility for more than one community in their particular region of the province. This would be conducive to greater consistency in administration in areas that are brought together. Needless to say, we would favour such an approach only if it could be demonstrated that reducing the number of Area Directors would be consistent with preserving quality of service delivery and would effect significant cost savings for the legal aid system. We suggest, as well, that the increased emphasis on management of the system could usefully be signalled by a change of title from Area Director to Area Manager. The increased emphasis on management should also be made manifest in a local cyclical strategic-planning exercise parallel to the process carried out at system-wide level. Local strategic plans would inform and be informed by the system-wide process and would be subject to agency approval.

RECOMMENDATIONS

1. Governance of the legal aid system in Ontario should be transferred from the Law Society to an independent statutory agency.
2. The government should play a critical role in the appointment of the members of the agency and should assume political responsibility for the definition of its mandate. Once the government has established an agency in which it can have confidence and has defined its mandate, however, the government should, in the normal course of events, allow the agency to proceed with the job assigned to it.
3. The mandate of the new agency should specifically indicate that it is to provide appropriate legal aid services across a broad range of service areas, such as criminal law, family law, immigration and refugee law, and "poverty law". The mandate of the new agency should be stated in an authoritative fashion, preferably in the enabling legislation for the agency.
4. The agency should be designed in such a way as to ensure that it has the capacity to carry out the commitments assigned to it in the new vision for legal aid in Ontario, set out in chapter 8.
5. The board of the agency should be constituted in the following manner:

  • The board should have eleven members. The members should be appointed to the board by the Lieutenant Governor-in-Council, upon the advice of the Attorney General.
  • Of the eleven members, four should be nominated by the Attorney General from a list of ten provided by the Law Society, two of whom must be lawyers who have a significant connection with the clinic system, it being envisaged that at least one of lawyers selected by the Attorney General from the Law Society slate would have extensive knowledge and understanding of the clinic system. The lawyers recommended by the Law Society need not be Benchers. Consideration should be given to requiring the Treasurer of the Law Society to consult with the Chief Justice of Ontario with respect to the identity of the Law Society nominees.
  • The chief executive officer of the agency should sit on the board as a full voting member. In other respects, the Attorney General should be accorded reasonable latitude in selecting candidates for the board in order to achieve as sound a balance as possible of the various groups with a claim to be represented on the board.
  • The legislation establishing the agency should provide that the Attorney General, in appointing persons to be members of the board, shall have regard to the desirability of ensuring that the board includes persons having expertise in or knowledge of :
    (a) the provision of legal services;
    (b) the work of the courts and tribunals;
    (c) management; and
    (d) the legal needs of low-income Ontarians.

6. Members of the agency board should be appointed for three- or four-year terms on a staggered basis. Individual members would be eligible for consideration for a further term.
7. The regular members of the board should be part-time members, as could the chair and vice-chair.
8. The chair and vice-chair of the Board should be appointed by the Attorney General after consultation with the Treasurer of the Law Society. The chair and vice-chair should have longer terms of office than regular members.
9. The responsibilities of the board should be as follows:

  • Within the agency's mandate, the board should be responsible for policy-making and strategic planning, and conducting these activities in a manner which is transparent to the Ministry of the Attorney General and the public at large.
  • The board would be responsible for formulating cyclical strategic plans which would set the overall objectives for the legal aid system by assessing current and future needs for services, developing strategies to meet those needs, and setting performance measures against which it can be determined whether the achievement of these objectives has been met.
  • The board would determine service priorities and allocate resources in accord with those priority determinations.
  • The board would be responsible for financial management and budgetary planning.
  • The board would formulate requests for provincial funding, which would be forwarded to the Attorney General, and act as an advocate for appropriate levels of funding.
  • The board would be responsible for all expenditures of public funds and comply with government requirements concerning reports and audits.
  • The board would be responsible for and accountable for the management of the agency and the operation of the service-delivery system.
  • The board would develop programs designed to ensure cost-effectiveness of service delivery, quality assurance, and responsiveness to client needs.
  • The board would establish a research, program-evaluation, and policy function.
  • The board would determine the management and organizational structure for the agency.
  • The board would develop human-resources planning and play a direct role in the hiring of senior management.
  • The board would develop the agency's capacity to participate in the development of an integrated justice system in collaboration with other partners in the justice system.
  • The board would assume responsibility for developing a management information and information-technology strategy for the agency.

10. The name of the agency should be the Legal Services Corporation of Ontario.
11. A number of tentative suggestions concerning the organizational structure of the new agency are offered. We suggest the creation of a separate reporting line for the clinic system which would report to senior management at the same level as the other three functional groups, operations, corporate services and a new program-evaluation and planning function. To signal the increased emphasis on comprehensive management of the system, the title Area Director should be replaced by Area Manager. We suggest that the organizational structure be relatively flat and, more particularly, not include the insertion of a regional level of management of the legal aid system. With respect to the latter point, however, we recommend that one of the Area Managers within each region of the province be identified as the Regional Senior Area Manager for purposes of carrying out coordination of activities within the region.
12. Although we favour continuation of 'the current role performed by local Area Directors, the number of Area Managers could be reduced by assigning to some the responsibility for more than one community in their particular region of the province, provided that reducing the number of Area Managers in this way would effect significant cost-savings for the legal aid system.
13. There should be a local cyclical strategic-planning exercise parallel to the process carried out at system-wide level. Local strategic plans would inform and be informed by the system-wide process and would be subject to agency approval.