Chapter 2: Development of the Legal Aid System in Ontario
This chapter outlines the development of legal aid in Ontario between 1951 and 1994, the challenges to the viability of the system in the 1990s, and the possible explanations for the increasing legal aid expenditures in the early 1990s and provides a comparative analysis of responses to the growth in legal aid in other jurisdictions.
DEVELOPMENT OF LEGAL AID IN ONTARIO, 1951-1990
This section reviews the history of the development of legal aid in Ontario between 1951 and 1990. This history can be divided into three periods, each of which represents a distinct era in the evolution of Ontario's legal aid system.
During the first period (1951-66), both the provincial government and the legal profession viewed the provision of legal services to low-income Ontarians largely as a charitable activity. However, at the close of this period, both had come to the conclusion that a charitable scheme was insufficient to meet the demand for legal aid services and had appointed a joint committee to develop a new system.
The modern Ontario Legal Aid Plan was established in the second period (1967-79). During this period, a number of other important developments took place that continue to influence the provision of legal aid services today, including the establishment of a statutory right to legal aid in a broad range of legal proceedings, governance of the Plan by the Law Society of Upper Canada, "open-ended" funding for the Plan's certificate program, and the instituting of a "mixed" model of service delivery. As well, important legislative/regulatory developments occurred during this period-namely, the promulgation of a new Legal Aid Act in 1967 and the Clinic Funding Regulation in 1979.
The third period (1980-1990) can be characterized as one of response to increasing needs for service in all areas covered by the Plan. The Plan's services and programs (and costs) grew substantially over this time. As a result, by the 1990s, the Plan was providing a wide variety of legal aid services to a substantial number of low-income Ontarians, but also faced serious governmental concerns about rapidly escalating costs.
CHARITABLE LEGAL AID, 1951-1966
Ontario's first legal aid statute was the Law Society Amendment Act, 1951. This Act mirrored a British statute passed two years earlier: the Legal Aid and Advice Act. The Ontario legislation provided for the province's first statutory legal aid plan, authorizing the Law Society to establish a plan to provide legal aid to persons in need thereof. The plan was to be called "The Ontario Legal Aid Plan".
Prior to 1951, legal aid in Ontario was offered informally. Legal services were provided to low-income Ontarians by members of the bar on a volunteer basis. The Law Society Amendment Act did not change this situation significantly. The Act specified that the Plan would pay volunteer lawyers only for their disbursements and other administrative expenses.
The Law Society Amendment Act also established the structure of the early Plan. The Act specified that the Plan was to be controlled by the Law Society, not the provincial government or a statutory agency. The Act stated that the Plan was to cover both civil and criminal proceedings, including all indictable offences punishable by imprisonment, and most civil cases, except defamation, breach of promise of marriage, and alienation of affection. Financial eligibility requirements were to be determined on the basis of annual income, number of dependants, and a discretionary "needs" test. The statute specified that the Plan was to be administered locally by county and district law associations.
By the early 1960s, it was obvious that a voluntary plan was incapable of meeting the demand for legal aid. There were simply not enough lawyers willing to provide their services voluntarily to make the program effective. As a result, in 1963 the provincial Attorney General established a Joint Committee of the Ontario government and the Law Society "to inquire into and report on the existing plan and put forward recommendations for its future". The Joint Committee was composed entirely of lawyers. The Report of the Joint Committee on Legal Aid was tabled in April 1965. The Joint Committee concluded that it was unreasonable to expect lawyers to be responsible for providing legal services, without payment, to low-income Ontarians.
Several of the Joint Committee's recommendations continue to influence the provision of legal aid services in Ontario to this day:
The Joint Committee concluded that the provincial government was responsible for legal aid, pursuant to its constitutional responsibility to provide for the administration of justice.
The Joint Committee concluded that the provision of legal aid should be considered a right, not a charitable gift. The Joint Committee therefore recommended that the Plan pay counsel fees in addition to disbursements for legally aided cases, and that legal aid services be delivered in a uniform manner across the province. This recommendation was premised on a belief that individuals were equal before the law only if they were assured representation by counsel, regardless of whether they could afford a private lawyer.
The Joint Committee recommended that the Plan be funded by the provincial government and that it be administered by the Law Society. In this respect, the Joint Committee adopted, without comment, the "almost unanimous opinion that legal aid should continue to be administered by the Law Society".
The Joint Committee recommended that legal aid be provided by private lawyers. The Joint Committee rejected a "public defender" model, stating that "[it is] wrong in principle that both prosecutor and defender are employed by the same master". The Joint Committee also concluded that the impersonal nature of the public-defender model and its bureaucratic nature "prevented the public defender from exercising the zeal and vigour which should be characteristic of defence counsel in every case."
In order to make certain that recipients of legal aid would have their choice of counsel, the Joint Committee proposed that lawyers be reasonably compensated to ensure their participation in adequate numbers and to attract senior members of the bar. The Joint Committee concluded that lawyers should be paid the reduced rate of 75 percent of a normal solicitor and client account.
The Joint Committee recommended the formal establishment of a "Duty Solicitor" scheme, whereby private lawyers were paid to attend in court in order to provide limited advice to those not yet able to retain counsel or obtain a legal aid certificate.
The Joint Committee recommended that legal aid be provided for a broad range of criminal, civil, and administrative proceedings. Coverage for criminal and civil proceedings had been a feature of the 1951 Plan; coverage for administrative proceedings had not. The Joint Committee justified the inclusion of administrative proceedings by stating that
Administrative tribunals exercise a large and increasing jurisdiction to deal with the rights of individuals in Ontario. There appears to be no logical reason why legal aid to persons affected by such tribunals should be excluded from the operation of an extended legal aid plan. The need for such might be just as great as it is before Courts of law.
The Joint Committee's recommendation that legal aid coverage should be extended to administrative tribunals was an explicit acknowledgement that the range of legal proceedings had expanded significantly as a result of the growth in governmental reliance on administrative agencies.
In recommending the establishment of a widely available, provincially financed legal aid program, the Joint Committee reflected then-current views on the appropriate role of governments in ensuring the well-being of their residents. For example, in the mid-1960s, the federal government introduced the Canada Assistance Plan (CAP), the Medical Care Act (establishing federal funding for health care), and the Canada Pension Plan; the provincial government introduced significant welfare legislation, including the Family Benefits Assistance and General Welfare Assistance programs. At the same time, a variety of legislative initiatives, including Ontario's first human rights code reflected a growing awareness of the situation of the economically disadvantaged. These developments significantly expanded the role of the federal and provincial governments in the field of social policy and the provision of equality-based rights. In this context, the establishment of a widely available, provincially funded legal aid program can be seen as a justice-related component of the modern state.
ESTABLISHMENT OF THE MODERN ONTARIO LEGAL AID PLAN, 1967-1979
In the period from 1967 to 1979, a number of important developments emerged, including the passage of the Legal Aid Act, 1967. This Act specified that the governance of the Plan was to be undertaken by the Law Society and that the Plan was to be funded by the province on an "open-ended" basis. This period also saw rapid growth in the number of certificates issued and the development of a limited "mixed" model of service delivery.
The Legal Aid Act, 1967
The provincial government accepted the Joint Committee's major recommendations, with the result that the first comprehensive legal aid statute in Ontario, the Legal Aid Act, 1967, was passed. This Act established a statutory right to legal aid for individual applicants who qualified by virtue of the type of service they required and their financial circumstances.
The Act specified that the Plan was to issue a "legal aid certificate" to individuals who met the Plan's legal and financial qualifying criteria. Once issued, the certificate could be taken to any private lawyer in the province willing to accept it. The legislation and accompanying regulation specified that lawyers providing legal aid services were to be reimbursed by the Plan for both counsel fees and disbursements, according to a prescribed schedule of fees. The statute also established a limited duty counsel program.
Reflecting the Joint Committee's recommendation that the Plan cover a broad range of legal proceedings, the Act stated that certificates were to be issued as of right in a wide range of circumstances, most particularly in serious criminal offences and family matters in superior court. The Act also gave Plan administrators wide discretion to issue certificates in a variety of other circumstances. The Act prohibited the issuance of certificates in very few instances.
The Act also set out the Plan's basic governance and management structure, specifying that the Law Society would continue to administer and determine policy for the Plan. The statute stated that the Plan was to establish an office in each of the province's judicial districts. The Plan was to appoint an Area Director for each district, who would be responsible for administering the Plan at the local level.
Finally, the Act specified that the provincial government would fund the Plan. Importantly, the Act did not specify that the Plan was to operate on the basis of either a fixed number of certificates or a fixed annual budget. Rather, the Plan was funded on an open-ended or demand-driven basis. If the demand for certificates or their cost increased beyond the Plan's annual projections, the provincial government would fund the shortfall.
Since its passage in 1967, the Legal Aid Act has not been significantly amended. As a result, the basic governance framework, funding structure, and delivery models mandated by the original Act remain in place 30 years after its passage.
Growth of the Certificate Program
The Plan's certificate program grew rapidly. Barely three years after its inception, the Plan was issuing more than 40,000 certificates annually. By 1980, the Plan was issuing more than 83,000 certificates a year.
The Establishment of the Community Clinic Program and the Development of a Limited Mixed Model of Service Delivery in Ontario
The Establishment of the Community Clinic Program and the Development of a Limited Mixed Model of Service Delivery in Ontario
Despite the growing number of certificates, in the late 1960s and early 1970s many lawyers and community representatives concluded that private lawyers were not adequately addressing the legal needs of the low-income Ontarians. This conclusion was premised on two fundamental beliefs.
First, these analysts noted that the legal needs of people with low incomes were often very different from those of fee-paying clients. It was argued that the disadvantaged needed many services that were not available from the private bar-representation before administrative tribunals determining social assistance and workers' compensation, for example. Indeed, the need for these services often arose simply by virtue of the clients' financial circumstances.
Second, these analysts believed that the very philosophy of traditional legal practice was largely inappropriate for low-income clientels. Traditional legal practice emphasized case-by-case litigation of discrete issues. It was argued that those of modest means should also be able to use the law as a means of achieving substantive, as opposed to procedural, equality. According to the traditional view, the potential scope of legal services needed by the disadvantaged was the same as for corporate, organizational, or more wealthy clients. As a result, critics of the existing Plan proposed a much different delivery model-the community legal aid clinic.
Clinics focused on "poverty law" services, emphasizing advice about and representation before the many new administrative tribunals that accompanied the development of the welfare state. Areas of practice included workers' compensation, social assistance, children's welfare, immigration, and landlord-and-tenant matters. Clinics also developed a much broader conception of legal services, including community legal education, law reform, and community development.
The early clinics' unique focus was reflected in their governance structure and staffing policies. Clinics were governed by "volunteer community boards of directors" and were staffed by a combination of salaried lawyers and salaried "community legal workers" (CLWs). The CLW concept was new to the province. Neither lawyers nor administrative staff, CLWs rapidly developed expertise in specific areas of administrative law, as well as in working with individuals and organizations in the community.
The first general-service community legal aid clinic in Ontario was set up in 1971. Several other clinics followed. These early clinics were established outside of the existing Plan's management structure and funded by a variety of charitable and government grants. As a result, the clinics had a considerable degree of independence, but no stable source of funding. At this time, the clinics were not formally organized into a "clinic system".
Pressure mounted quickly on the provincial government to provide the clinics with funding. As a result, the Attorney General of Ontario appointed the Task Force on Legal Aid in 1973. The task force's mandate was to review in depth the operation of the Legal Aid Plan in Ontario and determine the parameters of its future direction. The Task Force, chaired by the Honourable Mr. Justice John Osler, included other members, including several non-lawyers.
The Task Force's report (the "Osler Report") recommended a "mixed" delivery system for legal aid in the province whereby the existing judicare system would be supplemented by staffed neighbourhood legal clinics funded by the provincial government. Over time, the provincial government came to accept this recommendation. Interestingly, the Osler Report also recommended that the governance of legal aid be transferred to a statutory commission-a recommendation that the provincial government did not accept.
Despite this official recognition, the Law Society initially opposed the widespread introduction of clinics in the province. The Law Society feared that clinics would usurp the role of the private bar, providing services that might otherwise be obtained through legal aid certificates or private retainers.
Ultimately, the Law Society and the provincial government reached a compromise. The Law Society agreed not to oppose provincial-government funding of community clinics in return for an implicit acknowledgement that clinics would be restricted to providing "poverty law" services, that is, services not offered by the private bar. The provincial government subsequently passed a regulation to the Legal Aid Act establishing provincial funding for the existing community clinics in the province.
In 1978, the Honourable Mr. Justice Samuel Grange conducted another provincial inquiry into legal aid. Its purpose was to examine the relationship among the clinics, the Plan, and the private bar. Like the Osler Report, the Report of the Commission on Clinical Funding (the "Grange Report") affirmed the mixed delivery system of legal aid in Ontario. The Grange Report concluded that community clinics played a significant role in Ontario's legal aid system. Having found that the clientele and legal issues addressed by the certificate program and clinic program were very different, the report viewed the relationship between clinics and the private bar as complementary, not competitive.
In 1979, the Grange Report's recommendations were incorporated into a regulation of the Legal Aid Act establishing a more elaborate structure for provincial funding of clinics. The new Clinic Funding Regulation stated that the Plan was to fund an "independent community-based clinical delivery system" and defined a clinic as an "independent community organization."
The Grange Report had recommended that clinics have autonomy and independence in matters of policy and administration, "subject only to accountability for public funds advanced and for the legal competence of the services rendered." The Report had argued that autonomy in these matters was necessary to ensure community control and preserve the clinics' legal-development and public-education mandate. Accordingly, the Regulation established the Clinic Funding Committee (CFC) as a standing committee of the Law Society separate and apart from the original Legal Aid Committee and provided it with a separate budget to be designated by the Attorney General. The decision to establish a separate governance and funding regime for the community legal clinics was significant. Clinic advocates feared that clinic independence and resources would be jeopardized if clinic governance and funding were subsumed into the mandate of the Legal Aid Committee, given that the Law Society and many of its members had not supported the development of the clinics. Generally speaking, the CFC was given the power to allocate the funds designated for community clinics and to make policy in respect of their funding. As a result, the Regulation effectively shared the governance of community legal clinics between the CFC and each clinic's volunteer, elected community board of directors.
As with the 1967 Legal Aid Act, the major components of the 1979 Clinic Funding Regulation are still in place today.
The Cost of Plan Programs, 1970-1980
The increased need for certificates and the expansion of the community clinic program meant that the cost of the legal aid system rose considerably during this period, as is demonstrated in table 2.
Table 2.1: Total Number of Certificates Issued and Annual Cost of Plan
|Certificates Issued by Ontario Legal Aid Plan|
SYSTEMIC GROWTH, 1980-1990
By 1980, the legal aid system's basic governance structure, funding regime, and limited "mixed" delivery model had been established. The Plan was administered by the Law Society and the certificate and community clinic programs had distinct governance and funding regimes reflective of their unique origins, mandate, and role within the larger system. The certificate system offered a wide range of legal services, providing legal advice and representation in "traditional" areas of law, including criminal, family, and other civil proceedings. All such services were provided by private lawyers pursuant to individual certificates. Conversely, the community clinic program focused on "poverty law" services, providing assistance otherwise unavailable from the private bar. Within this framework, the duty counsel program played a limited, but important, role, ensuring that individuals could obtain legal assistance before they were granted a certificate or able to retain private counsel.
During the 1980s and early 1990s, the certificate and clinic programs grew substantially, in terms of both of the range of services provided and their cost (see table 2.2).
Table 2.2: Total Number of Certificates Issued and Annual
Cost of Plan Programs
|Fiscal Year||Number of Certificates Issued||Number of Clinics Funded by Plan||Total Plan Cost (Millions of Dollars)||Certificate Program Cost (Millions of Dollars)||Clinic Program Cost (Millions of Dollars)|
In the early 1990's more than 100 communities in Ontario were being served by 70 clinics, including both general and specialty clinics. General clinics offered services in core areas of "poverty law" practice. Specialty clinics provided assistance within a particular area of law or the legal needs of a specific client group. Examples of specialty clinics included the Advocacy Centre for the Elderly, the Advocacy Resource Centre for the Handicapped, and Justice for Children and Youth.
This period also saw the federal government assume an increasingly important role in legal aid funding. The federal contribution to Ontario's legal aid system was provided through federal - provincial cost-sharing agreements, originally just for criminal law matters, but later for civil matters as well.
CHALLENGES TO THE VIABILITY OF THE LEGAL AID SYSTEM, 1991 TO THE PRESENT
This section discusses the history of the Plan between 1991 and the present. This period is marked by the Plan's efforts to reconcile two competing goals: meeting the growing need for services in a time of economic recession and increasing legal complexity, and responding to the government's desire to limit the cost of the provision of such services. As is explained below, this period saw the provincial government's share of legal aid funding increase substantially in both absolute and relative terms. This situation was the result of both the unique "open-ended" nature of the Legal Aid Act and the fact that federal government funding began to provide fixed amounts unrelated to growth in demand for legal aid. As a result, the provincial government was left to absorb most of the increased cost.
To observers of the legal aid system in Ontario, the basic elements of this history are well known. In the early 1990s, costs for the certificate side of the Plan grew dramatically in light of the unprecedented demand occasioned by the recession and changes in the law. In 1994, the provincial government and the Law Society negotiated a four-year Memorandum of Understanding (MOU) which established fixed, and declining, levels of provincial funding for the certificate program. In return for the provincial commitment to provide fixed funding for the program, the Law Society agreed to manage the program within the limits of that funding. Unfortunately, the program's costs rose far above initial projections, and the Law Society responded with severe service cuts. With the passage of time, it is clear that these developments represent a watershed in the history of the Plan.
Much of the history of the Plan during this period has been summarized elsewhere and will not be repeated in detail here. However, it is important that several key elements of this history be reviewed here as they relate directly to the Plan's current situation. Thus, this discussion concentrates on the Plan's pre-MOU cost-cutting measures, the origins of the MOU, and the Plan's post-MOU efforts to live within a capped budget.
In the early 1990s, the administrators of the certificate program were asked by the government to implement cost-saving measures to respond to increases in demand and costs. The Plan responded by introducing a number of initiatives that sought to improve access to justice services and to stabilize rising costs. These included:
- expediting the collection of outstanding lien money;
- commitments to setting up a limited number of Staff Office pilot projects;
- strengthened efforts by the Plan to prevent and detect abuse through its Investigations and Complaints Department;
- expanded centralized research facilities;
- improved payment agreements between legal aid clients and the Plan and a uniform provincial policy resulting in increased client contributions;
- reduced legal aid eligibility for driving offences where there was no direct impact on the applicant's livelihood;
- streamlining of the financial-eligibility assessment function in order to improve processing efficiency, including transfer of the responsibility for financial-eligibility assessment from the Ministry of Community and Social Services to the Plan;
- capping of lawyers' incomes from legal aid, and a graduated reduction of lawyers' fees beyond certain levels;
- expansion of cost-saving family law settlement conferences province-wide, with the objective of arriving at early settlement of outstanding issues without recourse to the courts;
- reduction in the criminal legal aid tariff by 5 percent for the period November 1, 1992, to April 30, 1994, and criminal tariff restructuring (e.g., elimination of larger block fees in cases where there is a guilty plea).
At the same time, the provincial government also initiated measures designed, in part, to reduce legal aid costs, including Crown screening and early resolution of criminal cases. The provincial government also attempted to negotiate with the federal government a commitment to provide additional funding to offset the significantly increased costs resulting from federal policy changes in refugee matters. The latter efforts were not successful.
ESCALATING COSTS IN THE 1990S: THE ORIGIN OF THE MEMORANDUM OF UNDERSTANDING
These initial efforts did not diminish the trend in overall legal aid expenditures. In hindsight, it is clear that, in the early 1990s, the Plan faced a range of often unavoidable fiscal pressures, including increasing demand for legal services resulting from demographic and economic changes, declining sources of non-provincial government funding for legal aid, and increasing cost and complexity of legal aid cases. Thus, example, by fiscal year 1993/94, the financial pressures on the certificate program continued to increase as the province remained mired in a recession, and court decisions on matters such as delay and disclosure, and prosecution policies in sexual assault matters, drove demand and costs up almost 20 percent from the previous year, to $321 million.
In response, the provincial government made an unprecedented decision in 1993/94 not to provide additional funding for approximately 40,000 unpaid lawyers' accounts at the end of the fiscal year, and to require the Plan to carry them over into the 1994/95 budget. In all previous years, the province had provided an additional subsidy to meet any funding shortfall. In addition, the provincial government announced that it planned to reduce the Plan's allocation for certificates in the 1994/95 fiscal year by $26 million, resulting in an anticipated $75-million deficit at the commencement of that fiscal year. The government's decision not to provide additional funds was widely criticized by many legal aid practitioners, members of the judiciary, and potential legal aid clients. These groups argued that the decision was unfair, and illegal, and foreshadowed the end of Ontario's legal aid system. Moreover, it was clear that reductions in legal aid funding would have a negative impact on the day-to-day operations of the entire justice system as persons without assistance struggled to deal with the system's complex rules.
The government's decision not to provide new funds for the legal aid deficit had immediate consequences for both the provincial government and the Law Society. Lawyers were demanding timely payment of their outstanding accounts. Moreover, the carryover of such a large number of accounts put great pressure on the 1994/95 budget, which already had liabilities accruing from unbilled, but active certificates granted in 1993/94. Unless demand-reduction or cost-saving efforts were implemented, a legal aid crisis appeared to be imminent. The Plan would be forced either to further delay payment of its outstanding accounts or to stop providing certificates. Given that earlier attempts by the Plan to control its escalating budget had been unsuccessful, structural changes to the program seemed necessary.
THE SIGNING OF THE MEMORANDUM OF UNDERSTANDING, SEPTEMBER 8. 1994
On September 8, 1994, a Memorandum of Understanding (MOU) signed between the Law Society and the provincial government fundamentally altered the legal aid program in Ontario. For the first time since its inception, the Plan was required to function within a pre-set funding level for certificates. This replaced the demand-driven funding structure described above. Under the MOU, as with community legal clinics, the Plan's budget would have an annual cap, meaning that services or fees would have to be reduced if demand exceeded the estimated volume or if the cost per-case-rose.
The MOU gave the Plan an unprecedented four-year funding commitment and loan guarantee to cover the 1993/94 deficit for the Plan, and set out the Law Society's commitment to manage within those allocations. The MOU provided that the Plan's funding allocation for certificates would be reduced from $194.7 million in 1994/95 to $167.2 million in 1998/99, amounts which, based on the estimates of costs and demands made by the Plan at the time, appeared to be achievable without major service reductions or other changes to the Plan's operations.
Particularly important from the Law Society's perspective, the MOU introduced an integrated justice strategy. To help ensure that the Plan could operate within the reduced funding levels, the government promised in the MOU to implement diversion programs and a criminal law investment strategy (e.g. early Crown charge screening). These were intended to reduce the criminal case-load by focusing prosecution resources on serious crime and diverting more minor offences earlier in the process, thus helping to reduce legal aid costs. For its part, the Law Society agreed to control expenditures through such measures as implementing restrictions on interim accounts, adopting changes to the tariff, reducing administrative costs, adjusting or delivering its services to clients in different ways, although not radically altering the present delivery system, with its primary reliance on the judicare model, over the next four fiscal years.
THE AFTERMATH OF THE MEMORANDUM OF UNDERSTANDING: MANAGING THE CAPPING OF THE LEGAL AID SYSTEM
At the time of the signing of the MOU, the government and the Law Society anticipated that, based on identified trends, a reduction in the number and cost of certificates issued, combined with the implementation of a modest management plan, would ensure that the Plan would stay within the fixed funding levels set out in the agreement without having to reduce services or fees significantly. Unfortunately, legal aid certificate costs continued to rise, and the certificate-side deficit grew. As a result, the Law Society developed and implemented more radical structural changes to the legal aid program than had been initially anticipated.
Table 2.3 outlines the number of certificates issued and cases completed since the signing of the MOU and the predictions relied upon at the time of the signing of the MOU.
|Actual Number of Certificates Issued by Plan as Compared to MOU Predictions|
|Number of Certificates Issued||1994/95||1995/96||1996/97||1997/98||1998/99|
|(a) Per Plan (actual)||174,120||129,683||80,000||-||-|
|(b) Per MOU (Projected)||154,000||154,000||154,000|
The Law Society made its first major effort to cut costs in the late summer/fall 1995, almost one year after the signing of the MOU. These measures were to amount to a reduction in expenditures of approximately $40 million on an annualized basis. The initiatives included:
- elimination of divorce and wrongful dismissal certificates;
- stricter limits on granting criminal certificates (e.g. certificate issued only if there is a likelihood of incarceration, and loss of livelihood);
- tariff reductions (or elimination of payment) in relation to preparation time, use of interpreters, criminal pre-trials, travel costs, junior counsel rates, and a cap on individual and daily billings;
- budgetary guidelines for expensive criminal trials;
- introduction of a $25 application/appeal fee;
- reductions in financial eligibility, and improvement in cost recovery;
- increased use of duty counsel in family and criminal cases.
The provincial government was not satisfied that the actions taken by the Law Society would achieve the goals set out in the MOU to stabilize the escalating legal aid costs. In September 1995, at the same time that the Law Society was implementing its first series of cuts, a Special Advisor to the Attorney General was hired to provide advice on the ability of the Law Society to manage the certificate program within the terms of the MOU. The special advisor appointed was Stanley Beck, the former Chair of the Ontario Securities Commission, and a former Dean of Osgoode Hall Law School.
In his December 1995 report, the Special Advisor concluded that the Law Society could administer the certificate program under the funding terms of the MOU. He recommended the appointment of an Independent Monitor who would design a reporting system to provide the required degree of assurance that variations from expected operating results, volumes, and costs would be identified and reported at the earliest possible date, and recommended that the province supply a $35-million advance from future years' allocations under the MOU to fund timely payment of accounts. During this period, it became apparent that the Plan lacked many of the management tools appropriate for a fixed budget. The Plan's information-technology and financial procedures were seriously outmoded.
In the meantime, in November 1995, the Legal Aid Committee of the Law Society reported to Convocation that the recent service cuts to the Plan were insufficient to control the escalating costs and to stay within the budget set out in the MOU. A major restructuring of the Plan was needed.
Convocation debated whether or not the Law Society should continue to administer the Plan and meet the government's expenditure targets through additional cuts to the certificate program, or whether it should terminate its involvement in the administration of the legal aid program. Following an intense debate at its November 24, 1995, meeting, it was decided by a narrow majority vote that legal aid should remain with the Law Society but that the following additional cost-containment measures would be put into place on April 1, 1996, including:
- reduction in the number of certificates from 154,000 as projected in the MOU;
- elimination of all block-fee billing in criminal matters;
- establishment of maximum billing caps on certificates;
- stricter client financial-eligibility requirements for clients.
Table 2.4 sets out the number of certificates issued since 1992 and highlights the dramatic decline in the issuance of certificates over the last several years.
|Certificates Issued by Ontario Legal Aid Plan|
The impact of the 1996 reductions on all of the participants in the justice system (e.g., clients, lawyers, judiciary, community legal clinic workers, court administrators, police, Crown Attorneys, and correctional workers) has not been fully calculated. However, anecdotal and some statistical evidence collected by both the Plan and this Review warrants the conclusion that the impact of the recent constraints has greatly exacerbated the level of unmet needs of low-income residents of Ontario and has created significant inefficiencies in the justice system as a whole.
POSSIBLE EXPLANATIONS FOR THE INCREASING LEGAL AID EXPENDITURES IN ONTARIO IN THE EARLY 1990s
The previous section documented the rise in the need for, and consequent cost of, the provision of legal aid certificates in Ontario, and the Law Society's response to it over the last few years. This section attempts to provide explanations for the increase in costs. The primary economic and social factors that contributed to the imposition of a cap on the legal aid certificate program's funding are reviewed below.
INCREASE IN CLIENT ELIGIBILITY/DEMAND
Rise in Eligibility/Demand for Social Programs and Increased Unemployment
Between fiscal years 1990/91 and 1995/96, the number of social assistance recipients in Ontario increased by approximately 117 percent. Because the Plan's financial-eligibility criteria include those on social assistance, the potential "pool" of legal aid applicants increased dramatically. This increase is a critical factor in understanding the increase in client eligibility, and thus case-load, for the legal aid system in the early 1990s.
Table 2.5 sets out the rise in social assistance recipients and compares it with the growth in legal aid applications. These figures highlight the relationship between the increase in demand for legal aid and the increase in potential legal aid clients that resulted from the economic recession the province faced at that time.
GROWTH IN SOCIAL ASSISTANCE CASES AND LEGAL AID
1989/90 to 1994/95
# of Legal Aid Applications
|% Change||-||+ 21||+ 28||+ 3||- 9|
# of Social Assistance Cases
|% Change||-||+ 26||+ 34||+ 20||+ 6||+ 1|
Tables 2.6 and 2.7 outline the growth in the percentage of unemployment and the increase in the number of beneficiaries of Unemployment Insurance in Ontario during the same period that saw a dramatic increase in legal aid demand.
|Growth in Labour Force Unemployment Statistics in Ontario: Annual Average, 1988-1994|
|Annual Average||% of Labour Force|
|Growth in Unemployment Insurance Beneficiaries in Ontario, 1989-1994|
|Calendar Year||Actual Number of Beneficiaries||% Increase/Decrease|
|Percentage Increase: 40% from 1989 to 1994|
Increase in Violent Offence Charges
During the 1989/90-to-1994/95 period, the number of total Criminal Code charges laid in Ontario increased by approximately 10 percent and the number of violent offence charges increased by 18 percent. The Legal Aid Act and the cost-sharing agreement between the federal and provincial governments required the Plan to provide legal aid certificates for all criminal charges where the accused person's liberty or livelihood was at stake in the prosecution. The combination of the increase in the number of charges laid for violent offences and the governing regulatory framework with respect to criminal legal aid resulted in the Plan having little discretion over which (and how many) criminal cases would be funded.
Table 2.8 documents the increase in charges laid relating to violent offences in the early 1990s.
|Violent Offence Charges in Ontario 1989-1994|
|Criminal Code Offences||847,322||910,033||1,011,233||986,296||964,838||932,387|
Percent Increase: Violent offence charges increased by 18 percent and overall Criminal Code charges increased by 10 percent between 1989 and 1994. Increase in Family Law Cases
During the early 1990s, an increase in family law and child welfare cases occurred, particularly in the Provincial Division of the Ontario Court of Justice.
Tables 2.9 and 2.10 illustrate the growth in family law cases (Provincial and General Division) and the increase in family law legal aid certificates that were completed during that time.
|Family Law Cases in the Ontario Court of Justice, 1990/91 to 1994/95|
|Percent Increase: 90 percent increase from 1991/92 to 1994/95|
|Percent Increase: 22 percent from 1990/91 to 1994/95|
CHANGES TO LAWS AND POLICIES
The increase in legal aid costs during the early 1990s occurred against the backdrop of changing provincial and federal laws, to which the legal aid system was required to respond.
Changes to Immigration and Refugee Law
One example of a governmental policy change that had a significant impact on the Ontario legal aid system was the federal amendments to the Immigration Act in the late 1980s. These amendments changed the refugee determination process, and the federal-provincial-territorial funding arrangement in relation to refugee legal aid cost-sharing. Prior to the 1989 amendments, the federal government funded 100 percent of legal costs attributed to the first stage of the refugee determination process (the "credible basis" determination). Effective in 1993/94, this step of the process was discontinued and, with it, the funding for its legal costs, leaving all of the preparation costs to the new one stage procedure for which the province had to pay all the costs. During this stage, costly preparation for the credible basis hearing was carried out.
Table 2.11 sets out the financial implications for the province of the subsequent withdrawal of federal funding in this area.
|Certificates Completed and Annual Costs and Funding for Immigration/Refugee in Ontario, 1988/89 to 1994/95|
|Estimated Total Refugee Costs Millions||Federal Funds (Designated Counsel Program) Millions||Net Ontario Costs Millions|
Changes to Criminal Law and Policies
The number of legal aid certificates billed for in the early 1990s also increased as a result of specific court decisions and the implementation by government of new justice- related initiatives. For example, in 1991/92 the Plan was obliged to pay the costs of a large number of extra accounts resulting from a surge of cases disposed of pursuant to the Askov decision. Other changes included the expansion of the Crown's duty to disclose evidence to an accused (resulting in the need for additional preparation time for defence counsel), court rulings effectively requiring the provision of 24 hour duty counsel, new standards for admissible evidence in sexual assault cases, increased prosecutions of sexual and domestic assault and impaired driving, zero tolerance for school disputes, increased street-level drug enforcement, and procedural and substantive amendments to the Criminal Code relating to persons found unfit to stand trial.
INCREASE IN COST PER CASE
The increase in the average cost per case also contributed to the significant growth in legal aid expenditures. While it is difficult to be certain about the reasons for increased case costs, a number of factors likely contributed to the increase in the average cost per case, such as: the increase in cases involving multiple defendants, more frequent pre-trial hearings, more frequent and complex bail hearings in spousal assault cases, increases in the factual and legal length of cases owing to the more frequent use of written submissions by the Immigration and Refugee Board, the increase in legal aid lawyers' work in family law matters as a result of the decrease in the Official Guardian's services, and greater numbers of cases involving historical and complicated allegations of sexual abuse. These factors led to growth in the number of out-of-court hours (preparation time), resulting in a higher number of billable hours charged (within the maximum allowable under the tariff).
The average cost per completed case increased by 12 percent in criminal matters (from $1,108 in 1989/90 to $1,240 in 1994/95), and by 58 percent in civil matters (from $990 in 1989/90 to $1,565 in 1994/95). More specifically, in immigration and refugee matters, the average cost per case increased by 162 percent (from $861 in 1989/90 to $2,258 in 1994/95). Immigration and refugee cases (11,523 in 1994/95) represented 15 percent of the total civil completed cases (75,740 in 1994/95). The increase in average cost per case in this area alone explains 24 percent of the total 58 percent cost increase in the civil average cost per case. In Family Law Act (FLA) and Children's Law Reform Act (CLRA) matters, the average cost per case increased by 41 percent (from $1,067 in 1989/90 to $1,503 in 1994/95). FLA/CLRA cases (31,112 in 1994/95) represented 41 percent of the total civil completed cases (75,740 in 1994/95). Accordingly, the impact of the growth in case cost in this area in relation to the overall increase in civil case costs was 16 percent. Read together, the combined immigration/refugee and FLA/CLRA average cost increases explain 40 percent of the total increase of 58 percent in civil case costs.
Table 2.12 demonstrates the steady growth in the cost per legal aid case in Ontario through the 1990s.
|Growth in Average Cost per Case in Ontario, 1989/90-1994/95|
|Average cost per completed certificate case ($)||1989/90||1990/91||1991/92||1992/93||1993/94||1994/95|
In addition, the provincial government raised filing fees and other court costs, which were in turn reflected in the increased disbursement costs faced by the Plan. Other disbursement costs, such as the increased use of medical and other expert witness reports in both criminal and civil cases, also drove up the average cost of certificates.
Table 2.13 outlines the increase in disbursement costs for the Plan over the relevant fiscal years.
|Legal Aid Disbursements Costs ($ million) in Ontario, 1989/90 to 1994/95|
|Certificate Disbursements||$ 12.7||$ 17.1||$ 23.2||$32.6||$26.3||$31.4|
|Percent Increase: 147 percent increase from 1989/90 to 1994/95|
|Duty Counsel Disbursements||$ 0.42||$ 0.47||$ 0.57||$ 0.78||$ 0.86||$1.15|
|Percent Increase: 174 percent increase from 1989/90 to 1994/95|
Table 2.14 demonstrates the increase in the average cost per completed certificate case and duty counsel assistance between 1989/90 and 1994/95.
|Legal Aid Disbursement Cost Per Completed Case in Ontario, 1989/90 to 1994/95|
|Average Disbursement per Completed Certificate Case ($)||$118||$131||$145||$177||$177||189|
|Percent Increase: 60 percent increase from 1989/90 to 1994/95|
|Average Duty Counsel Disbursement per Person Assisted ($)||$1.32||$1.38||$1.44||$1.86||$2.17||$2.52|
|Percent Increase: 91 percent increase from 1989/90 to 1994/95|
DECREASE IN FEDERAL CONTRIBUTION AND OTHER SOURCES OF REVENUE
Funding for the legal aid system between 1989/90 and 1994/95 came from several sources, as shown in table 2.15 below.
Ontario Legal Aid System (Plan and
Sources of Funding, 1989/90 to 1994/95
|Sources of Funding ($ million)||1989/90||1990/91||1991/92||1992/93||1993/94||1994/95|
|Province of Ontario (net)||69.7||92.3||164.2||205.1||203.8||194.7|
|Law Foundation of Ontario||35.7||33.5||17.5||18.8||5.6||12.4|
|Law Society of Upper Canada||4.1||4.7||5.7||6.1||6.0||6.0|
|Contributions from Clients||8.6||8.8||11.5||13.9||16.3||15.4|
|Judgments, Costs, Settlements||1.9||2.0||2.4||2.2||2.4||3.9|
Decline in Federal Contributions
Federal contributions were based on cost-sharing agreements for civil and criminal legal aid. Under the Canada Assistance Plan (CAP), expenditures for civil matters were shared where clients met the required needs test. However, the federal government's contribution to civil legal aid, which had represented about one-third of the total cost, was capped to an annual maximum increase of 5 percent per year beginning in 1989/90, just as the recession began to have a major impact on need and case-load.
The cost-sharing agreement in place at that time provided for federal contributions in most criminal matters. Up to 1989/90, the federal funds for criminal certificates were determined by a complex formula which guaranteed a minimum federal share of 45 percent and a maximum share of 55 percent. For 1990/91 and 1991/92, the federal contribution was frozen at the 1989/90 level until a new agreement was negotiated. For 1992/93 and 1993/94, the federal contribution was allowed to increase by only 1 percent per year, regardless of actual growth.
The federal government also contributed funds towards the Nishnawbe-Aski Legal Services Corporation (NALSC), an innovative legal-services delivery organization which was formally incorporated on March 1, 1990. With a head office in Thunder Bay, the corporation provides legal services to 48 fly-in and road-access Nishnawbe-Aski communities in northwestern Ontario. During 1994/95, the federal government announced the termination of its funding. The province was left to replace the federal contribution.
As discussed previously, the federal contribution with respect to refugee matters also ceased at this time.
In an open-ended system, the province remains responsible for cost increases if other revenue sources decrease or fail to keep pace with the growth in costs. As demand for legal aid increased in the recession, and the revenues from other sources declined, or did not increase correspondingly, the provincial government's net contribution to the Plan increased by 180 percent between 1989/90 and 1994/95. During the same period, the total federal contribution increased only by 10 percent as a result of the cap on the cost-sharing agreements, and the withdrawal of funding for refugee matters and the NALSC program, as described in the table below.
Table 2.16 below summarizes federal and provincial contributions to the Plan from 1989/90 to 1994/95.
|Federal and Provincial Funding to the Ontario Legal Aid Plan, 1989/90 to 1994/95|
|Federal Funding ($ million)||1989/90||1990/91||1991/92||1992/93||1993/94||1994/95|
|Designated Counsel Program
Northern Legal Services
(Nishnawbe-Aski Legal Services)
|Federal Funding as a Percentage of Total Legal Aid Expenditures||33.2%||29.4%||24.9%||20.7%||21.8%||18.8%|
|Provincial Net Funding After Federal Funds ($ million)|
|Total Net Provincial||69.7||92.3||164.2||205.1||203.8||194.7|
|Provincial Funding as a Percentage of Total Legal Aid Expenditures||40.1%||43.5%||60.6%||63.9%||68.8%||57%***|
Table 2.17 outlines the reduction in legal aid funding sources.
|Reductions in Funding Contributions ($ millions) 1989/90 to 1994/95|
|Funding from all sources other than Province of Ontario||110.6||114.7||106.3||109.5||95.9||102.3|
|Increases (Decreases) of Funding other than Province||-||+4.1||(8.4)||+3.2||(13.6)||+6.4|
Decline in Revenue from Lawyers' Mixed Trust Accounts
The drop in interest rates, and in commercial and economic activity generally, in the early 1990s resulted in a reduction in the revenues generated from the interest on money held in lawyers' mixed trust accounts. The Law Foundation of Ontario's (LFO) contribution to legal aid, which is based on accumulated interest from mixed trust accounts, declined dramatically. Table 2.18 sets out the decrease in revenue generated by lawyers' mixed trust accounts during the recession of the early 1990s which translated into extra costs for the province.
|Law Foundation Contribution to the Legal Aid Plan, 1989/90 to 1994/95|
|Source of Funding ($ million)||1989/90||1990/91||1991/92||1992/93||1993/94||1994/95|
|Law Foundation of Ontario||35.7||33.5||17.5||18.8||5.6||12.4|
Percent Decrease: 84 percent from 1989/90 to 1993/94 (pre-new agreement)
INCREASE IN NUMBER OF LAWYERS PARTICIPATING IN THE PROGRAM
Some commentators suggest that the growth in demand for legal aid services may have been, at least in part, attributable to the increase of lawyers participating in the legal aid program (supplier-induced demand). This theory contends that the fluctuations in both the number of cases and the cost per case are affected by competitive pressures within the legal profession as well as by external change. Stated another way, the theory is that during recessionary times lawyers are more likely to take on legal aid cases or bill more hours per case because there is a lack of other work available to sustain their desired level of income.
In the Ontario context, the evidence does not decisively support the theory that the rise in costs to legal aid in the early 1990s is primarily attributable to the lawyers participating in the Plan. Given that criminal lawyers do not control eligibility, and that the bulk of the work in criminal, refugee and, often, family proceedings is driven by the state, and that in family law the number of certificates increased by less than the case-load growth, it is difficult to find evidence to suggest that the lawyers were primarily responsible for driving up legal aid costs.
Table 2.19 tracks the participation of lawyers in the Plan from 1989/90 to 1994/95.
|Lawyer Participation in Legal Aid Plan 1989/90 to 1994/95|
|# of practising lawyers in Ontario||14,884||15,435||15,753||16,073||16,532||16,420|
|# of lawyers doing legal aid||4,937||5,104||5,459||5,962||6,141||6,558|
|% of lawyers doing legal aid||33%||33%||35%||37%||37%||40%|
|% of participating lawyers with at least four years experience||85%||85%||85%||83%||82%||83%|
COMPARATIVE ANALYSIS OF RESPONSES TO THE GROWTH IN LEGAL AID IN OTHER JURISDICTIONS
In the early 1990s, the cost of legal aid also grew in several other jurisdictions, including many Canadian provinces, Britain, and Australia. Even though each jurisdiction has its own unique governance structure, funding arrangements, and service priorities, it is useful to identify each jurisdiction's reaction to the growth in legal aid costs. As was the case for Ontario, many of these jurisdictions were forced to undertake significant restructuring in order to meet the fiscal pressures.
Legal aid in British Columbia is governed by the Legal Services Society Act. This act established the Legal Services Society, an independent statutory body responsible for the administration of legal aid in British Columbia.
Between fiscal year 1991 and fiscal year 1996, the cost of legal aid in British Columbia rose from $42 million to more than $100 million, an increase of 140 percent. As a result, the B.C. Legal Services Society (LSS) has undertaken a number of reforms in an effort to control rising costs. For example, in 1994 the LSS launched an ambitious reform plan to transfer approximately 50 percent of the work in the areas of criminal and family law from private practitioners to staff lawyers. In total, the LSS projected that approximately 108 staff lawyers should be hired. This plan provoked considerable opposition from the private bar, including a complete withdrawal of services by the Association of Legal Aid Lawyers. As a result of this conflict, the LSS agreed to hire no more than 90 staff lawyers. Subsequent budget pressures meant that even this revised target was not met.
Other measures adopted by the LSS included tariff management and case management. The LSS has reduced fees paid on tariffs by approximately 35 percent since 1991. It also imposed holdbacks ranging from 5 to 12 percent in 1994. The LSS has introduced case management and alternative dispute resolution, particularly in the area of family law. Finally, the Legal Services Society has also introduced a client-contribution policy which requires applicants who have earnings that exceed basic income assistance to contribute between $30 and $150.
Alberta does not have legal aid legislation per se. Services are provided on the basis of an agreement between the provincial Attorney General and the Law Society of Alberta.
In fiscal year 1996/97, the budget for legal aid in Alberta was approximately $24 million, a decline of 20 percent over three previous years. In 1993, a pilot project involving the employment of staff lawyers to deliver services to young offenders was commenced in Edmonton and Calgary.
Legal aid in Manitoba is governed by the terms of the Legal Aid Services Society of Manitoba Act. The act establishes the Legal Aid Services Society of Manitoba as an independent statutory corporation.
In fiscal year 1996/97 legal aid in Manitoba had a budget of approximately $15 million, approximately the same amount as in fiscal year 1992/93.
The Legal Aid Services Society of Manitoba has attempted to meet its funding pressures through a combination of tariff-management and program-delivery innovations. Tariffs in Manitoba have been formally reduced several times since the late 1980s. Specific measures include the introduction of a block fee and tariff cutbacks. A recent amendment provides that, where a case is not formally concluded, only one-half of the applicable tariff is payable. Service-delivery initiatives include using paralegals in remote areas, block contracting in rural areas and for young offender cases, and a program to significantly expand the traditional responsibilities of duty counsel.
Legal aid in Quebec is governed by the Legal Aid Act. This act establishes the Commission des Services Juridiques, a twelve-member independent commission responsible for administering legal aid in Quebec.
Legal aid funding in Quebec has remained stable for several years. Until recently, the commission's primary response to increasing costs has been to reduce the pool of potential legal aid applicants by declining to update its financial eligibility criteria in accordance with the cost of living.
More recently, the Quebec government introduced significant amendments to the Legal Aid Act. The amended law stipulates that the government can decide that some types of legal services will temporarily or permanently be obtained through certain types of service providers based on consideration of "the imperatives of sound management of public legal aid funds." It is anticipated that this statutory provision will allow the government to direct clients to the service providers that it considers to be the most cost-effective.
The amendments also set out a number of complex provisions which restrict eligibility in criminal, civil, and other types of litigation.
ENGLAND AND WALES
Legal aid in England and Wales is governed by the Legal Aid Act, 1988. Administration of legal aid services is shared by an independent statutory agency, the Legal Aid Board, and the Lord Chancellor's Department.
The cost of legal aid in England and Wales has been rising dramatically. Between fiscal year 1984/85 and fiscal year 1994/95, the cost of legal aid rose more than 500 percent. As of fiscal year 1996/97, the cost of legal aid in England and Wales was approximately £1.4 billion. On a per capita basis, this is about twice as much as is spent in Ontario.
In order to address these rising expenditures, the previous British government initiated a series of reforms ultimately designed to reduce cost and improve quality. The most significant of these reforms is a proposal to deliver most civil legal services through block contracts. Other measures include replacing open-ended legal aid funding with a capped, predetermined annual budget; allowing new types of service providers, including non-lawyers, advice agencies, and mediators, to deliver legal aid services; the preparation of a "national strategic plan" to prioritize legal aid spending; and the development of a system for "franchising" legal aid suppliers as a means of promoting a higher quality of legal aid work.