Chapter 16: An Implementation Strategy

The Memorandum of Understanding (MOU) between the Law Society and the Ontario government expires on March 31, 1999, the end of fiscal year 1998/99. Both the Law Society and the government have indicated their commitment to abiding by the terms of the MOU until its expiry. This chapter outlines a practical and financially feasible way in which our proposals for major changes to the governance structure and operations of the system, all of which raise numerous complex issues, could be implemented. The implementation strategy outlines a suggested timetable and transitional funding arrangements, and highlights major issues to be resolved by the government, the Law Society, and the new Legal Services Corporation to ensure a transition that maximizes the services available to low-income people, ensures the uninterrupted pay-out of outstanding accounts to legal-service providers, and offers assurance that the move to a new reformed system is affordable for government.

TIMETABLE

PHASE ONE: RECEIPT OF REPORT TO ENACTMENT OF LEGISLATION

Upon delivery of our report to the Ministry of the Attorney General, it is anticipated that a policy development and legislative-drafting process will be undertaken, with such additional consultations as the government considers appropriate.

We recommend that the following provisions be set out in the new Legal Aid Act:

  • a substantive provision setting out the purpose of the legal aid system,
  • a provision establishing the Legal Services Corporation of Ontario and its corporate status,
  • a description of the new board of directors and provisions addressing such matters as their appointment, tenure/removal, and indemnity,
  • the duties and responsibilities of the board, including both central-support and direct-service matters. The central supports could include matters such as:
    • determining and monitoring the service needs of clients;
    • developing criteria for setting priorities among service needs;
    • setting priorities;
    • developing and experimenting with innovative service models to meet needs;
    • establishing and implementing quality-control mechanisms;
    • guaranteeing independence of services;
    • establishing a needs-based financial eligibility-assessment/client-contribution system;
    • undertaking research/policy development for the corporation and the broader justice system;
    • providing or coordinating administrative support services, including technology, personnel, accounting, account-processing, and audit functions; and
    • maintaining linkages with other parts of the justice system, and advocating funding required to meet needs.
  • On the direct-service side, board responsibilities could include:
    • establishing geographic and/or client-based service areas;
    • continuing/establishing community clinics and Area Offices for each area;
    • continuing to administer the judicare component, including criteria for panel membership, tariffs, and case management;
    • establishing Staff Offices where numbers and service needs warrant;
    • establishing a central appellate capacity/support service;
    • maintaining legal-research services, a core group of investigators, and other non-legal staff to assist duty counsel, staff counsel, and the private bar;
    • approving appeals to the Court of Appeal for Ontario;
    • appointing Area Managers to manage non-clinic services and coordinate with clinics;
    • providing a framework for the election of community boards to govern clinics;
    • establishing advisory committees, as appropriate;
    • establishing private-bar oversight/advisory committees for each area of substantive law.
  • The duties and responsibilities of Area Managers could include matters such as,
    • establishing local service priorities based on central priorities and local circumstances;
    • establishing a main intake office and satellites, as necessary;
    • establishing intake/assessment capacity; retaining paralegals, interviewers, case workers, and so on to support intake service, duty counsel, Staff Offices (where available), and private bar;
    • establishing salaried and contract duty counsel services; issuing judicare certificates; approving case-management plans, discretionary fees, and disbursements; establishing linkages with community services and the community clinic, where numbers warrant;
    • establishing Staff Offices in criminal, immigration and refugee, or family law; where priorities dictate, providing access to civil law services both within the corporation and through other mechanisms; and
    • approving appeals and judicial reviews.
  • the duties and responsibilities of the clinic director/community boards could include such matters as:
    • fulfilling the current mandate by determining most appropriate priorities and mechanisms to implement the priorities pertinent to it;
    • coordinating local services with Area Managers;
    • providing summary intake/referrals for the Area Office; and
    • providing advice to board on province-wide priority setting.
  • the funding for the corporation to be based on a:
    • rolling three-year strategic-plan, business plan, and budget, approved each year and assured for the three-year period, except in extraordinary circumstances;
    • board allowed to carry surpluses and deficits within the cycle (and, with the Attorney General's approval, between cycles);
    • clinic budget maintained at least at current level through first cycle;
    • transition funding in first post-MOU year; and
    • guaranteed payment of authorized accounts.
  • the transition arrangements resulting from negotiations with the Law Society.

At the same time, we recommend that the Ministry begin to identify people to serve on the board of the Legal Services Corporation of Ontario, after appropriate consultation with, among others, interested organizations having expertise in the legal needs of and delivery of legal services to low-income Ontarians. As well, the Ministry should undertake discussions with the Law Society regarding a negotiated framework for ensuring the smooth transfer from the Law Society's governance of legal aid to the new administration. This framework should include an opportunity for the new board to work with the Law Society, before the expiry of the MOU, to begin to establish the infrastructure of the new system.

PHASE TWO: FROM ENACTMENT OF LEGISLATION TO THE END OF MOU

Establish Board

Immediately following enactment of enabling legislation, the Review recommends that the new board be set up. We recommend that the board work closely with the Law Society during this phase to prepare for the transfer of the administration of the legal aid system to the Legal Services Corporation of Ontario.

Continue to Issue and Pay Certificates under Current System

While the new administration prepares for Phase Three, we recommend that the existing administration continue to issue and pay certificates on a business-as-usual basis. The number of certificates to be issued over the course of the final year of the MOU (prior to transfer of authority to the new board) should be agreed upon by the new board and the Law Society in light of future funding commitments to the Legal Services Corporation of Ontario by the provincial and federal governments, and the implementation/start-up plan of the corporation.

High Priority Issues for the Board during Transition

Subject to arrangements to be negotiated by the board, the Law Society, and government (where appropriate), the following is a suggested list of issues to be acted upon by the board during this transitional phase.

Establish Service Areas and Recruit Area Managers

We suggest early recruitment of Area Managers to develop the new aspects of the local delivery system, with priority given to creating an early intake and assessment system capacity. In moving from local Area Directors to Area Managers, attention should be paid to determining the appropriate number and location of Legal Services Corporation Area Offices. The number and location should be based on population, geography, and what is known about the nature of legal needs and related services in the area. One Area Manager may be responsible for a number of offices or satellite offices. The board need not establish all of these offices at once, but should begin the process as quickly as possible especially in high-volume areas. While the emphasis on the job functions of the Area Manager will be management, coordination, priority-setting, and quality control, we would expect that many of the existing Area Directors would be appropriate candidates for these new positions.

The recruitment of Area Managers and the subsequent hiring of local staff are critical to the success of this model. Area Managers need to be in place quickly in order to initiate a consultation process to develop and recommend a local delivery model and service priorities, and to lay the foundation for the expanded summary advice and duty counsel system described above.

Undertake Preliminary Needs Assessment

In order that Area Managers can begin to operate the new intake system, the board will have to prepare a preliminary assessment of needs and priorities. Some of the information required for the needs assessment is found in this report and the background papers, but the board should immediately begin meetings with clinics, community and legal organizations, and, if the judges consider it appropriate, the judiciary for further information. In our view, the board should first determine needs based on consultations, and then put in place a longer-range mechanism to identify and access client needs.

Develop Criteria for Priority-Setting

To meet the service-management demands of living within a capped budget, the Review has recommended that the board be responsible for setting province-wide priorities in relation to the broad range of legal needs of its clientele. In so doing, we recommended earlier in our report that the board address various considerations in fulfilling this task, most particularly, the impact which the provision or denial of service would have on the individual applicant and other potentially needed services.

Develop Early Assessment and Intake

Central to our proposed new system is the capacity to assess cases early and effectively. This allows a determination of the potential for immediate referrals, whether to community services or to the legal aid case-service methods we propose, and, for the remaining cases, the determination of the nature and extent of the service required. It calls for effective interviews, strong knowledge of legal remedies and strategies, as well as other service organizations in the community, a continuous strategic assessment of competing needs for scarce resources, an ability to assess legal-service-delivery options, and the ability to match the appropriate delivery model to the legal needs of the client.

Develop Expanded Duty Counsel System

It would be the responsibility of each of the new Area Managers to implement a plan for a more sophisticated duty counsel function. This will include recruitment of lawyers, whether in a Staff Office or in a block-contract arrangement, and supervised paralegal staff, training, standard setting, and supervision to support expanding the role of duty counsel. We believe that this should be identified as one of the initial structural reforms to be put in place by the new Legal Services Corporation.

Develop Coordinated Local Delivery Plans

We have identified local coordination of legal services as an important responsibility of the board, Area Managers, community boards, clinic directors, and head office. We recommend that during Phase Two, all parts of the legal aid administration ensure that local linkages are made, and that community needs are identified and responded to appropriately in the development of local service-delivery plans.

The delivery-model plans should be developed in light of our recommendation that Area Managers be responsible for the local legal aid office (that may or may not have satellite sites). The local office will provide clients with family, civil, and criminal intake and assessment, as well as summary advice and referral to other services. As at present, clinics will also have a local presence and may be available to do some summary intake for the main office.

Continue to Develop an Integrated Technology Strategy

At the same time as the framework and implementation plan for the "front-end" delivery of legal aid services is developed, the Legal Services Corporation administration and the Ministry of the Attorney General should work closely to ensure that the legal aid system and its information-technology enhancements are coordinated with those of the Ministry, the courts, the bar, the police, correctional facilities, and appropriate community agencies. This will support our long-term vision of creating a legal aid administration that can facilitate the transition to out-of-court intake in criminal matters, and can use technology effectively in other aspects of its operations, including participating effectively in automated case-management systems.

Develop Framework for Transfer of Governance Authority

In order to ensure a smooth transition to the new system, the board, the Law Society, and government (where appropriate) should also prepare a strategy for the transfer of responsibility. This would address a broad range of issues, including:

  • firm commitments to pay in a timely way for outstanding accounts for work done on certificates issued to the date of transfer to the new authority;
  • transferring records and providing access to current records of the Plan;
  • developing an organizational structure for the new legal aid authority;
  • setting of conflict of interest guidelines for the board;
  • developing public-accountability procedures, such as a strategic plan, annual reports, data collection, and accounting schemes;
  • developing human-resource plans, transfer of assets and assignment of leases;
  • providing access to the current facilities for the new administration;
  • transferring of liabilities, litigation, complaints;
  • determining an effective date of transfer;
  • determining dispute-resolution provisions between the current governing body and the future governing body and the government;
  • determining insurance and indemnity issues;
  • setting staff-compensation levels under the new system and determining the definition of "employer" for labour-relations purposes, especially in relation to the clinic system; and
  • start-up costs.

It is recommended that the current and future administrators of the legal aid system work to ensure that the transfer is undertaken with a view to continuing to have the benefit of the skills and experience of as many existing staff as possible.

Establish Head Office Support Structures

To ensure a seamless transition for the clients, lawyers, and other service providers of the legal aid system, it is critical to provide support to the board to assist it in carrying out its early responsibilities. In particular, we urge that the new board make arrangements with the Law Society to share or assume the existing administrative, policy, research and evaluation, technology, and operational supports. It should also determine any additional expertise required so that it can achieve its mandate of determining and ensuring responsiveness to client needs, public accountability, the provision of high-quality service, and innovation in relation to service delivery. The board should begin to develop the sophisticated planning and policy capacity needed to service this mandate. In this phase, the board may also wish to enter into agreements to assume some of the Clinic Funding Committee's and Plan's responsibilities for audit, technology, and human-resource functions.

Commence Multi-year Planning

During this phase, we also recommend that multi-year strategic planning be commenced by the board. In developing this strategic plan, the board should develop proposals in relation to financial operations; technology; legal support services, such as research, evaluation, and policy development; local and provincial service-delivery plans; and law-reform capacity. We see the provision of its multi-year strategic plan to government as part of the new Legal Services Corporation's public-accountability requirement.

Maintain Operations of Clinic System

As there will be few operational changes to the clinic system during this phase, we recommend that the Clinic Funding Committee (CFC) of the Law Society continue to manage the clinics within its existing budget. This will allow the new board to focus on the other major tasks that we have identified. Any vacancies in the membership of the CFC should be filled as contemplated by the existing Regulation. Funding of Phase Two

In that the Law Society will still be governing the delivery of legal aid services and that the MOU funding arrangements will still be in place, we recommend that the provincial government provide transition funding to the board for costs incurred during this phase in order to ensure a seamless transition that has no adverse impact on the clients.

An alternative source of funding for some of the start-up infrastructure costs could be the Ministry's Courts Administration budget and, to some extent, the federal government. In developing our plan for an integrated approach to the delivery of legal aid services, we have attempted to anticipate and accommodate both the federal and the provincial government's strategy for increasing early efficiencies in the criminal and civil justice process. We believe it is appropriate to seek funding from them to support Ontario's transition to a less court-focused approach, given that our model will produce savings for both governments' litigation functions and may serve as a national model. Pilot-project funding from the federal government for the start-up and evaluation of the intake and assessment functions of our model would be consistent with and helpful to furthering the national access to justice agenda.

PHASE THREE: GOVERNANCE OF THE LEGAL AID SYSTEM BY THE LEGAL SERVICES CORPORATION OF ONTARIO

The Review recommends that the board should, as a matter of high priority, address the following major issues immediately following the transition (post MOU):

Expand Delivery Models

Once the new governing structure is established, the board should turn its attention to the goal of expanding delivery models for legal aid to maximize its ability to meet the legal needs of clients effectively and efficiently. Accordingly, at this stage, we believe it is appropriate to implement the expanded duty counsel function, commence the development of a Staff Office capacity within the system where numbers and needs warrant, and develop standards for block contracting of cases. The board will assume responsibility for judicare services, including issuance of certificates (through Area Managers), establishment of tariffs, and assessment and payment of accounts. Quality-assurance measures ought to be implemented, and the tariff reviewed for adequacy.

Extend Clinic System

At the same time, a plan should be developed for closing the geographic gaps in the clinic system. Those areas of the province that do not have a general clinic should be identified and provided with "poverty law" services, in accordance with their needs. Consultations on expansion of specialty clinics should also take place.

Ensure Coordination of Legal Aid Services at a Local Level

With the expansion of the clinic system and the development of alternative methods of delivering legal services, there should be continued coordination of all legal aid services at the local, and possibly regional, level.

Board Control Over Budget and Operations

The new board will assume all of the Legal Aid Committee's and Clinic Funding Committee's responsibilities for the legal aid operations in Ontario and will be responsible for the administration of the Area Offices, current clinic system, and central-office budgets. As noted in chapter 14, the clinic system budget should be guaranteed for three years following the transfer of operations to the new corporation.

Ensure Payment of Outstanding Accounts Pursuant to the Arrangements Entered into in Phase Two

All outstanding accounts to lawyers that accrued under the old administration should be paid out in accordance with rules in place at the time that these certificates were issued and in accordance with the arrangements entered into in Phase Two between the Law Society and the new board (and the government).

Implement Public-Accountability and Evaluation Capacity

In this phase, the head office of the Legal Services Corporation of Ontario should develop the capacity to ensure that it is meeting its public-accountability obligations. This should include confirming that the best current management practices are in place, that information is being collected and evaluated to ensure that clients' needs are being met in flexible, cost-effective, and innovative ways; that competent legal services are maintained through various quality-assurance techniques; and that the system is capable of setting priorities for service delivery in order to target available resources to the most appropriate cases.

Funding of Phase Three

In the first full year of the new system, there will be additional costs incurred as new delivery mechanisms are implemented. The savings we anticipate from better case assessment, managed intake, expanded duty counsel, and improved use of non-lawyers and other support should result in reduced judicare costs a year or two after the new initiatives are put in place.

Assuming that legal aid certificate funding remains stable at its 1998-1999 level of $167.2 million and that the Law Society issues roughly the same number of certificates in 1998-1999 as in 1997-1998 (with a modest increase being possible), funds will be available within the 1999-2000 budget to meet the costs of the transition to the enhancements proposed in this report. Expenditures in 1998-1999 include the repayment of loans, all of which will be retired in that year.

RECOMMENDATIONS

We recommend that the proposals set forth in this report should be implemented in three phases, the details of which are outlined in this chapter. Summarized briefly, our proposals should be implemented as follows:
(a) The first phase, from receipt of this report to enactment of legislation, would involve a policy-development and legislative drafting process within the Ministry of the Attorney General. At the same time, the Ministry should begin to identify people to serve on the board of the Legal Services Corporation of Ontario and should enter into negotiations with the Law Society concerning the framework for a smooth transition to the new legal aid system.
(b) The second phase, from enactment to expiry of the Memorandum of Understanding in March of 1999, would involve the establishment of the board of the Legal Services Corporation and the development and implementation of a comprehensive transition plan which will ensure a seamless transition for the clients, lawyers and other service providers of the legal aid system and establish appropriate structures to enable the new agency to assume its responsibilities in March of 1999.
(c) The third phase, post-March 1999, would be the assumption by the Legal Services Corporation of Ontario of responsibility for discharging its statutory mandate and the implementation of its strategy for providing a needs-focused, high quality, prioritized, and cost-effective legal aid service that will be designed to meet the broad range of legal needs of low-income Ontarians.