Chapter 3: Profile of Ontario's Legal Aid System

The history of developments in legal aid in Ontario from 1951 to 1994 was reviewed in chapter 2. This chapter provides a description of the current legal aid system in Ontario, including its governance structure, funding, and service-delivery models.

The statute governing the legal aid system is the Legal Aid Act and its accompanying Regulation. The Act specifies that administrative authority to "establish and administer a legal aid plan" rests with the Law Society of Upper Canada. The governance and funding regimes for the Plan's certificate program and community clinic programs are distinct and are discussed separately in this chapter.

GOVERNANCE

This section provides an overview of the governance structure for the certificate and clinic programs.

GOVERNANCE OF THE CERTIFICATE PROGRAM

The Law Society administers the certificate program through its Legal Aid Committee. This committee reports to the Law Society's board of governors, known as Convocation, on the Plan's administration and operations. According to the Plan's 1995 annual report, the Legal Aid Committee is responsible for administering the delivery of legal aid services in Ontario and for "developing policy initiatives consistent with the Plan's objectives".

The Legal Aid Act does not specify the size, composition, or mandate of the Legal Aid Committee, rather it gives the Law Society the power to determine these matters. Historically, the membership of the Legal Aid Committee was quite large, including Benchers (lawyers elected as governors of the profession), non-Bencher lawyers, lay members, and a law student. In July 1996, the Law Society amended the composition of the committee, reducing its size to eight members, seven of whom are Benchers. Previously, the committee had 16 members, including five lay members. The rationale for reducing the size of the committee was to allow it to focus its activities more sharply. The Legal Aid Committee has several ongoing and ad hoc sub-committees to address specific issues, including criminal, family, and immigration tariffs; student legal aid societies; and services to particular communities.

Day-to-day management of the certificate program is the responsibility of the Provincial Director, who is appointed by the Law Society, subject to the approval of the provincial Attorney General. The Provincial Director is the chief executive officer of the Plan, responsible to the Law Society for the proper administration of the Plan. The Provincial Director also serves as Secretary on the Legal Aid Committee.

The Legal Aid Act and its Regulation divides the province into 47 districts for the purpose of administering the Plan. The boundaries of these areas generally coincide with the province's county structure. Each Area Office is administered by an Area Director, who is usually recruited from the local bar. Most Area Offices are comparatively small operations, and most Area Directors are employed part-time. Support staff may include an office administrator, and possibly other staff who assist in taking applications and conducting financial-eligibility assessments.

The current Area Office structure originated in the era of the charitable legal aid plan (1951-67). During that period, the Plan relied upon the cooperation of the local county or district law association to deliver its services. The 1965 report of the Joint Committee on Legal Aid concluded that the cooperation of the local bar would continue to be important in the revised Plan and that a local Area Director was the best person to ensure such a commitment. The Joint Committee also reasoned that a local Area Director was the best person to ensure that the Plan was responsive to local needs.

Subject to financial-eligibility guidelines, statutory rules, and head office direction on case coverage (discussed below), decisions regarding the granting of certificates are made by local Area Directors.

The Legal Aid Act requires that an Area Committee be established for each area of the province. Area Committees hear appeals on refusals by the Area Director to issue certificates, and applications for certificates in appellate matters.

Finally, the Act requires the Plan to establish several panels of local lawyers who have agreed to provide specified services for the Plan, including panels of lawyers willing to do certificate work, act as duty counsel, and who agree to give general legal advice. Any lawyer called to the bar in Ontario may register on one or more panels.

As noted in chapter 2, the organizational structure of the certificate program has changed little since its inception in 1967.

GOVERNANCE OF THE COMMUNITY CLINIC PROGRAM

The governance regime for the community clinic program is established by the "Clinic Funding Regulation". The governance regime set out in the Clinic Funding Regulation closely follows the model proposed by the Commission on Clinical Funding. The commission recommended that clinics should 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".

Section 5(1) of the Regulation defines "clinic" as "an independent community organization providing legal services or paralegal services or both on a basis other than fee for service". "Independent community organization" is not defined.

The Clinic Funding Regulation establishes a complex series of checks and balances designed to preserve clinic autonomy while ensuring public accountability for funds. The Regulation does this by dividing the governance of community legal clinics between the Law Society's Clinic Funding Committee (CFC), the clinic funding staff (CFS) and each individual clinic. As a general matter, the CFC and CFS are responsible for determining and administering the terms and conditions of community clinics funding. Conversely, the board of each clinic is generally responsible for determining each clinic's specific operational policies (including determination of case priorities, other activities, and financial eligibility) within the framework established by the CFC and CFS.

The Clinic Funding Regulation specifies the size and composition of the Clinic Funding Committee. The CFC is to be composed of three members appointed by the Law Society and two members appointed by the provincial Attorney General. The Regulation specifies that both sets of appointees must include at least one "person who has been associated with a clinic".

Initial funding decisions are made by the CFS upon their review of each clinic's annual funding application. Final funding decisions are then made by the CFC. The separation of these two steps is designed to allow the CFC to act impartially when it hears appeals resulting from the CFS's initial decisions.

The Regulation specifies that the "clinic shall be under the direction of a community board of directors". "Community board of directors" is not defined, although the Regulation specifies that a "community" includes "a geographic community [or] persons who have a community of interest and the general public".

As a matter of CFC policy, each clinic is governed by democratically elected, volunteer board of directors. This policy is set out in the "clinic certificate" agreed to each year by the CFC and the board of each clinic. The clinic certificate contains the terms and conditions of funding, and stipulates the amount of funding being provided. Among other terms contained in the clinic certificate is a requirement that the clinic hold annual meetings, file financial statements, and have a complaints policy.

The CFC does not specify the size or composition of a clinic's board of directors. Those are to be determined in consultation with each board's community.

Day-to-day management of each clinic is the responsibility of an Executive Director. The executive director, staff lawyers, community legal workers and support staff are employed by the clinic board.

As is true of the governance regime of the certificate program, the organizational structure of the community clinic program has changed little since its inception.

FUNDING

This section provides an overview of the various extant funding arrangements that support Ontario's legal aid programs.

STATUTORY FRAMEWORK

The funding arrangements for the certificate program and the community clinic system are structured differently. The certificate program receives funding designated out of the overall legal aid budget arising from a range of sources, while the clinic system receives fixed amounts from the Ontario government on an annual basis.

Funding of the Certificate Program

With respect to the certificate side of the system, the Legal Aid Act and its Regulation create a Legal Aid Fund into which all sources of revenue are paid and from which all expenditures are made. The governing scheme requires the Law Society to submit to the government an estimate of the sum required to meet the payments out of the Fund for each fiscal year. Where an insufficient amount was estimated (or where the government budgeted an amount lower than the estimate), the Legal Aid Act arguably obligates the government to seek further funds to pay the year end costs that exceeded the amount budgeted. Since the signing of the MOU, the demand-driven, open-ended financing scheme set out in the Act and its Regulation has been replaced by pre-set funding levels for the certificate system.

In fiscal year 1995/96, the certificate program budget was approximately $231 million, representing approximately 77 percent of the total legal aid budget for that year.

Funding of Community Legal Clinics

As discussed above, the funding for the community legal clinic program is administered by the Clinic Funding Committee. The budget is set annually and there is no provision within the statutory framework for the clinic system to exceed its budgetary allocation from the provincial government. Clinic funding is not the responsibility of the Plan; rather, the clinic system operates under a completely separate funding formula. Some clinics receive a very small portion of their funding from grants, fund-raising, or donations.

The Clinic Funding Regulation specifically provides that the payment of funds to a clinic is made to support the provision of legal and paralegal services, and services designed solely to promote the legal welfare of a community, on a basis other than fee for service. As discussed above, clinic boards are accountable for the funds they receive and must comply with the terms and conditions of the funding certificate that they sign with the Clinic Funding Committee. Individual clinics provide financial and substantive activity reports to the CFC.

The budget for the clinics has historically represented a small portion of legal aid funding. The clinic budget has been capped since clinics began, and frozen since 1993. In fiscal year 1995/96, the total clinic budget was approximately $32 million. This figure represents approximately ten percent of the total legal aid budget for that year.

EXISTING SOURCES OF REVENUE

Provincial Government

The Ministry of the Attorney General makes monthly payments to the Plan upon receipt of the monthly requisitions from the Law Society. The provincial funding allocation represents the total amount from the provincial and federal governments. The province advances the total government funds to the Plan and recovers the federal share from the federal government under cost-sharing agreements.

Funding for the clinic system flows from the Ministry of the Attorney General to the Plan administration as part of each payment. As noted above, the provincial contribution represents almost 100 percent of the clinic system's funding.

Federal Government

The federal contribution to Ontario's legal aid system arises out of federal-provincial cost-sharing agreements. There are separate funding arrangements for civil and criminal law matters. As discussed in chapter 2, there has been a dramatic decrease in the level of funding from the federal government to Ontario in recent years in relation to cost-sharing of both criminal and civil matters.

Criminal Legal Aid Cost-Sharing

Legal aid funding under the federal-provincial criminal cost sharing agreement applies to adults and young offenders receiving certificate legal representation, duty counsel services, and related administrative/operational support. The cost-sharing agreement is with the federal Department of Justice.

A new federal-provincial, criminal cost-sharing agreement was agreed upon in fiscal year 1996/97 and expires in fiscal year 2000/01. This new arrangement provides that federal funding will be redistributed over the next five years based on a formula that takes into consideration a combination of historical federal funding patterns and provincial population. As its proportionate share of the program review reduction, Ontario will receive a funding decrease from $41.4 million to $39.8 million and a further reduction of $0.4 million based on a new historical/population calculation, tilted toward historical patterns, resulting in a 1996/97 federal contribution of $39.4 million. Based on annual adjustments to the historical/population formula, Ontario's share will decline in annual stages over the succeeding four years by a total of $1.5 million, to $37.9 million in 2000/01. The overall federal contribution (nationally) will be limited to a maximum of 50 percent of the total shareable expenditures of all of the provinces for criminal and young offender legal aid services, but will not be linked to an individual province's spending.

In addition, the federal and the provincial governments agreed to establish a Permanent Working Group on criminal legal aid. The group will take its direction from and report to the Committee of Federal/Provincial/Territorial Deputy Ministers of Justice. The mandate of the group includes such issues as criminal legal aid coverage, funding, financial-eligibility, program delivery, cross-jurisdictional issues, and comparability of data.

Civil Legal Aid Cost-Sharing

"Civil legal aid" refers to certificate and duty counsel civil legal aid services in the areas of family law, refugee and immigration matters, other areas of civil law, and associated administrative/operational support.

Historically, Ontario received cost-sharing for civil legal aid under the Canada Assistance Plan (CAP). Effective in 1996/97, CAP was moved to the Canada Health and Social Transfer (CHST). The total funding base for the CHST incorporates an estimated 9.4 percent reduction in federal funds for 1996/97. Under CAP, federal cost-sharing was approximately $22 million. Accordingly, Ontario's CHST payment continues to include this amount, arguably less 4.1 percent.

Law Foundation of Ontario (LFO)

The funds held by lawyers for their clients are kept in either mixed or individual trust accounts. The interest on mixed trust accounts (accounts that are held for clients who do not request a separate account) accrues to the LFO pursuant to the Law Society Act. The LFO is required by the Act to contribute 75 percent of the amount collected to legal aid. The balance is used by the LFO to fund legal education and research grants. The LFO itself is controlled by the Law Society by the right to appoint three of the five trustees.

An estimated $500 million is held in lawyers' mixed trust accounts at any given time. Roughly 90 percent of those accounts are held with the five major banks. Until recently, the rate of return on the mixed trust account funds was very low. However, in 1994, the LFO commenced (and succeeded) in negotiating new and improved terms with three of the major banks, representing 66 percent of the total funds.

Also in 1994, in response to concerns about the falling revenues generated from the mixed trust accounts, the government amended the Law Society Act to permit lawyers to make the LFO a joint holder of their mixed trust accounts. This amendment would allow the LFO to pool and invest funds into higher earning, though financially low risk, instruments. The ability of each lawyer to draw on the mixed trust account would be not affected by the legislative provision.

The LFO has not adopted the joint investment option provided under the amended legislation. Rather, it has chosen to continue to negotiate with each financial institution and to review further the pooling option under the Law Society Act.

Over the past few years, following the negotiation of improved terms with three of the five major banks, the LFO contributions to the Plan have improved. Table 3.1 sets out the LFO's contributions to the Plan over the last few years.

Table 3.1
LFO's Contributions to the Plan ($ million) 1993/94 to 1996/97
1993/94 (pre–new agreements) 5.6
1994/95 (post–new agreements) 12.4
1995/96 20.0
1996/97 (estimate) 10.3

LAWYERS' CONTRIBUTIONS

The Law Society, pursuant to the Legal Aid Act and its Regulation, contributes to the Legal Aid Fund an amount equal to 50 percent of the Plan's assessable administrative expenses for each fiscal year. All fees payable to solicitors for legal aid are reduced by 5 percent. This reduction can be applied to discharge up to half of the total obligation in that fiscal year.

The other 50 percent of the obligation is discharged by raising funds through a self-imposed legal aid levy charged to all Law Society members. The levy has been in place for over ten years. There are three classes of fee-paying members: practising, non-practising, and not gainfully employed, or furthering their education. The amount of the legal aid levy for individual lawyers relates to their membership status, not to whether or not they perform legal aid work, or to their income level.

Table 3.2 sets out the amount collected by the Plan from the legal aid levy from 1991/92 to 1996/97.

Table 3.2: Funds Collected by the Plan from the Legal Aid Levy - 1990/91 to 1996/97
Year Legal Aid Levy per Lawyer ($) Total Contributions by the Legal Profession ($ million)
1990/91 185 4.7
1991/92 240 5.7
1992/93 292 6.1
1993/94 292 6.0
1994/95 292 6.0
1995/96 266 6.0
1996/97 266 6.0

CLIENTS' CONTRIBUTIONS

The Section 46 of the Regulation under the Legal Aid Act states that the financial abilities and needs of applicants shall be determined in accordance with standards established by the Ministry of the Attorney General. The Plan administers a needs-based legal aid financial-eligibility test.

As a part of the legal aid financial–eligibility criteria, every applicant for legal aid is financially assessed against the established standards to determine whether he or she is able to contribute fully or partially towards the cost of legal aid that he or she will receive. An agreement to contribute may provide for payments at a fixed time or times, or for payment on the disposition of real or personal property at any time.

The contributions from legal aid clients have increased steadily over the years, as shown in table 3.3.

Table 3.3: Financial Contributions to the Plan from Its Clients
1989/90 to 1995/96
Year Clients' Contributions to the Plan ($ million)
1989/90 8.6
1990/91 8.8
1991/92 11.5
1992/93 13.9
1993/94 16.3
1994/95 15.4
1995/96 14.0

JUDGMENTS, COSTS, SETTLEMENTS

All judgments, costs, or settlements in favour of legal aid clients are used to reimburse the Plan. In 1995/96, $3 million was reimbursed to the Plan.

MISCELLANEOUS INCOME

Additional revenue is collected from the sale of research memoranda produced by the Research Facility of the Plan to lawyers not acting in legal aid cases; legal aid application fees ($25 per application, introduced in October 1995); and interest earned on current accounts.

The miscellaneous income amount has varied through the years. In 1995/96, this income totalled approximately $0.5 million. The newly implemented application fee generated an additional $0.6 million in 1996.

DELIVERY MODELS

The legal aid system in Ontario is often described as utilizing a "mixed" model of service-delivery because it supplies legal services through three major programs: the certificate program, the community clinic program, and the duty counsel program. This section summarizes the basic elements of each program, including their respective coverage and financial-eligibility guidelines, services provided, client base, and service providers. Also discussed, are a number of the Plan's other programs, including its Research Facility, the Nishnawbe-Aski Legal Services Corporation, and other initiatives.

CERTIFICATE PROGRAM

The Plan's certificate program delivers its services through a "judicare" model. The Plan tests applicants for eligibility and then issues a "certificate" which may be taken to any member of the private bar willing to accept it. The private lawyer is paid by the Plan on a fee-for-service basis, according to the Plan tariff.

As discussed in chapter 2, between 1985 and 1993 the number of certificates issued by the Plan grew substantially. As a result of the cost-cutting measures imposed by the MOU, however, the number of certificates issued since 1993 has contracted significantly. In fiscal year 1997, the certificate program issued approximately 80,000 certificates, the lowest number in more than twenty-two years.

As noted above, the certificate program is by far the largest component of the legal aid system in Ontario.

Eligibility

An applicant's eligibility for a certificate is dependent upon two criteria: the Plan's "coverage" and the applicant's financial eligibility. "Coverage" refers to the range of cases and/or proceedings in which the Plan offers services. Currently, the certificate program's coverage is dependent upon both the Act itself and the certificate prioritization measures adopted in April 1996. An applicant's financial eligibility is determined after a complex financial assessment of his or her income, assets, and financial needs. An applicant must meet both the case coverage and financial criteria before a certificate will be issued.

The certificate program's coverage and financial-eligibility rules are discussed briefly below.

Coverage

As noted above, the certificate program's coverage depends upon both the wording of the Legal Aid Act and the Plan's recent prioritization measures.

Sections 12 to 15 of the Legal Aid Act and sections 40 to 47 of its accompanying Regulation set out a range of mandatory and discretionary circumstances in which the Plan will issue a certificate, subject to the applicant's financial eligibility. The range of criminal and civil proceedings potentially eligible for certificates is quite broad. The Act excludes only a small number of proceedings from coverage.

Section 12 of the Act states the legal matters for which legal aid shall be given. The section specifies that, except as otherwise provided in the Act or its Regulation, a certificate shall be issued to a person otherwise entitled thereto in respect of any proceeding or proposed proceeding,

  1. in the Ontario Court (General Division);
  2. where the applicant is charged with an indictable offence or where an application is made for a sentence of preventive detention under Part XXI of the Criminal Code;
  3. under the Extradition Act (Canada) or the Fugitive Offenders Act (Canada); and
  4. in the Federal Court of Canada.

Section 13 of the Act states that legal aid may be given subject to the discretion of the Area Director,

  1. in any summary conviction proceeding under an Act of the Parliament of Canada, if upon conviction there is likelihood of imprisonment or loss of means of earning a livelihood;
  2. in any proceeding under the Provincial Offences Act, if upon conviction there is likelihood of imprisonment or loss of means of earning a livelihood;
  3. in any proceeding,
    (a) in the Ontario Court (Provincial Division) in respect of proceedings under statutory provisions set out in the Schedule to Part III of the Courts of Justice Act,
    (b) in the Small Claims Court,
    (c) before a quasi-judicial or administrative board or commission otherwise than in an appeal thereto,
    (d) in bankruptcy subsequent to a receiving order or an authorized assignment, or
    (e) for contempt of court; or
  4. for drawing documents, negotiating settlements or giving legal advice wherever the subject-matter or nature thereof is properly or customarily within the scope of the professional duties of a barrister and solicitor.

Section 14 of the Act lists the legal matters for which legal aid may be granted with the approval of the Area Legal Aid Committee, including:

  1. in an appeal to
    (a) the Supreme Court of Canada,
    (b) to Federal Court of Canada,
    (c) to the Court of Appeal for Ontario,
    (d) to the Divisional Court,
    (e) to a judge sitting in court,
    (f) under Part XXIV of the Criminal Code (Canada) or the Provincial Offences Act,
    (g) to the Assessment Review Board from a municipal assessment of a property that is the residence of the applicant and by way of appeal from the decision of the Assessment Review Board thereon to a judge of the Ontario Court (General Division) and by way of appeal from the decision of such judge to the Ontario Municipal Board, or
    (h) to a quasi-judicial or administrative board or commission, or
  2. in a proceeding by way of mandamus, quo warranto, certiorari, motion to quash, habeas corpus or prohibition; and
  3. in any matter referred by the Area Director to the Area Committee.

Section 15 of the Act lists the matters for which legal aid will not be given, including:

  1. in proceedings wholly or partly in respect of defamation;
  2. in relator actions;
  3. in proceedings for the recovery of penalty where the proceedings may be taken by any person and the penalty in whole or in part may be payable to the person instituting the proceedings; or
  4. in proceedings relating to any election.

The second component of the certificate program's coverage rules are the complex prioritization rules that the Law Society adopted in April 1996. These rules were adopted in order to give the Plan a basis for rationing the fixed number of certificates it would be able to issue after April 1996. These rules essentially establish a hierarchy of case priorities for each of the Plan's major areas of practice.

As a general principle, the prioritization rules are premised on a belief that certificates should be issued on the basis of the relative "seriousness" of the proceeding to an applicant. Criminal certificates are issued on the basis of the "likelihood of incarceration". In family law, the "governing principle ... is to protect the safety of a spouse or child who is at risk, or to protect an established child/parent bond". It is important to note that the priority rules are based on categories of cases, rather than on the circumstances of individual clients.

Financial Eligibility

Section 16 of the Act specifies that an applicant's financial position must be considered when determining whether he or she is eligible to receive a legal aid certificate. Depending upon his or her financial status, an applicant may be eligible for a free certificate, or a partial certificate, or ineligible for a certificate.

The Plan utilizes a "needs" test to determine financial eligibility. The Plan assesses the assets, income, and monthly living expenses of an applicant and/or his or her spouse in order to determine if the person meets the financial-eligibility criteria. Where this test identifies disposable income or liquid assets in excess of the allowable amount, the Plan requires a client to contribute towards the cost of the certificate, or will deem the person ineligible.

CASE MIX

"Case mix" refers to the proportion of certificates granted in different kinds of legal proceedings. By the early 1990s, the Plan was issuing certificates for a very broad range of proceedings, including criminal, family, immigration, refugee determination, negligence, and administrative law (see table 3.4).

The Plan's changing "case mix" is likely the result of several different factors, including the changing nature of demand for legal aid services and the imposition of its prioritization rules in 1996.

Table 3.4: Percentage of Plan Certificates Issued by Area of Practice
(Case Mix), 1990-1997
Year Criminal Certificates (% of Total) Civil Certificates (% of Total) Breakdown of Civil Certificates (% of Total)
Family Certificates Immigration Certificates Other Civil Certificates
1990/91 59 41 24 10 7
1991/92 54 46 26 8 12
1992/93 51 49 25 10 14
1993/94 50 50 28 14 8
1994/95 51 49 28 8 8
1995/96 51 49 33 6 10
1996/97 66 34 21 8 5

SERVICE PROVIDERS

The Plan collects only summary information about the private lawyers who accept certificates. In fiscal year 1996, 6,786 solicitors billed the Plan, representing almost 40 percent of the province's lawyers. On the whole, most private lawyers participating in the Plan bill the Plan for relatively small amounts. In fiscal year 1996, almost 60 percent of lawyers providing certificate services billed the Plan for less than $20,000.

From the existing data, it appears that most lawyers accepting certificates are quite experienced. In 1996, 45 percent of all fees paid to lawyers went to those who had 12 or more years' experience. An additional 39 percent of fees were paid to lawyers who had between four and 12 years' experience.

The Plan does not collect information about the proportion of total fees that lawyers derive from certificate work or the proportion of legal aid lawyers who work in large or small firms. The Plan has only recently begun to collect data about the comparative specialization of those who accept certificates (as opposed to their years of experience). Given the obvious link between quality of service and experience, the composition of the "pool" of service providers has important policy consequences for the certificate program.

COMMUNITY CLINIC PROGRAM

There are currently seventy community legal clinics in Ontario, serving over 100 communities. Within this number, there are two categories of clinics: general clinics and specialty clinics. Most clinics (fifty-six) offer general services in core areas of "poverty law" practice. Specialty clinics offer services in a particular area of law or in the legal needs of a specific client group.

Eligibility Criteria

As is true of the certificate program, clinics have both coverage and financial eligibility criteria. In accordance with the community governance model, clinic boards have the authority to establish both sets of criteria. Board decisions on these matters must, however, conform with the general framework of the Clinic Funding Regulation, CFC policies, and the terms and conditions of each clinic's certificate.

Coverage

Section 4(2) of the Clinic Funding Regulation establishes the clinic system's coverage:

[i]n this Part, "funding" refers to the payment of funds to a clinic to enable the clinic to provide legal services or paralegal services, or both, including activities reasonably designed to encourage access to such services or to further such services and services designed solely to promote the legal welfare of a community, on a basis other than fee for service.

General clinics tend to offer individual case-by-case advice or representation in the areas of income maintenance law (including employment insurance, workers' compensation, Canada Pension Plan, Family Benefit Act, General Welfare Act, and Old Age Security matters) and housing law (primarily Landlord and Tenant Act matters). Some general clinics also offer services in employment law (including employment standards and wrongful dismissal matters), and immigration law. Specialty clinics provide services within the area of their specialization.

Financial Eligibility

Clinics provide summary advice without testing income. Client representation is provided to those who meet the clinic's financial eligibility guidelines. As noted above, each clinic certificate specifies that each clinic board must adopt a financial-eligibility policy that complies with CFC guidelines. CFC guidelines establish maximum income and asset levels for clients seeking services other than summary advice and information.

Services Provided

Importantly, the Clinic Funding Regulation defines the potential scope of clinic services broadly. Generally speaking, clinics tend to provide the following services:

  1. summary advice and legal information within clinic areas of practice;
  2. referrals to social service and community agencies, lawyers in private practice, and the Plan;
  3. client representation before courts and administrative tribunals;
  4. public legal education: clinic seminars, workshops, presentations;
  5. law development initiatives, including litigation and appearances before municipal councils, legislative committees, and public inquiries; service on government advisory bodies; and
  6. projects to enhance the efficiency of clinic resources by providing mutual support which can help educate members and assert defences and claims.

The services provided by general clinics are often linked to several central "supports," including the Clinic Resource Office (CRO), specialty clinics and the clinic funding staff (CFS). The CRO was established in 1991 to provide legal and technical support services to clinic practitioners in the main substantive areas of clinic practice. The CRO provides legal research and training for clinic case workers, provides legal resource materials, and assists in information sharing between clinics. Specialty clinics act as resources for all the clinics.

Service Providers

As noted above, there are currently seventy community legal clinics in Ontario, serving more than 100 communities. General-service clinics are established as a neighbourhood legal office staffed by three categories of employees: lawyers, community legal workers, and support staff.

Despite the large number and wide variety of clinics, the number of staff in the clinic system is comparatively small. As of July 1996, the CFC funded approximately 430 positions throughout the system, representing an average of approximately six positions per clinic. Of this total, the CFC funded 174 lawyer positions, 113 community legal workers, and 144.5 support staff. Approximately one-half of the total number of clinics are funded for between three to five positions.

Clinics are located across the province, although there are several "gaps" in the clinic system. Fourteen Ontario counties/districts do not at present have a general-service clinic, including counties/districts containing the towns of Parry Sound, Orangeville, Owen Sound, Stratford, Kirkland Lake, Lindsay, and Guelph.

Clinic legal staff are relatively experienced at the bar. Of the lawyers employed in the system, more than 45 percent were called to the bar in 1985 or earlier. 32 percent were called between 1986 and 1990. Only 22 percent have less than five years' experience. Community legal workers (CLWs) are slightly less experienced: 35 percent of CLWs had ten or more years of employment in the clinic system, 37 percent had between five to ten years, and 27 percent had less than five years' experience.

DESCRIPTION OF DUTY COUNSEL OPERATIONS

The Plan provides three types of duty counsel assistance: the Hotline Service (a 24-hour telephone-advice service for persons in custody); staff duty counsel (salaried lawyers located in a few criminal, family, and young offender courts who provide legal advice; conduct bail hearings; and represent clients on guilty pleas, withdrawals or diversion, and other matters); and private bar (per diem) duty counsel who provide civil duty counsel services as well as many of the same functions as staff duty counsel. The Plan also operates a series of advice duty counsel clinics established in some neighbourhood settings across the province to offer advice during a few hours each week.

Eligibility Criteria

Coverage

In criminal and young offender matters, staff and private duty counsel services are restricted to matters relating to guilty pleas, bail hearings, providing limited legal advice about legal procedures, and non-complicated sentencing matters. Generally speaking, criminal duty counsel do not conduct trials.

In civil matters, staff and private duty counsel services are provided in family courts and in psychiatric units in Ontario hospitals. Services are generally restricted to providing legal advice, arranging adjournments, and obtaining consent orders.

Duty counsel clinics offer summary legal advice about a broad range of legal issues. These clinics are typically open for a few hours each week at scheduled times. They are often located in community centres, educational institutions, and other public buildings, such as libraries. In fiscal year 1994/1995, the Plan operated 33 such clinics. The Plan intends to increase this number to more than 60 duty counsel clinics in the near future.

Financial Eligibility

Duty counsel services are generally provided to any person who has not retained counsel, regardless of income. In April 1997, the Plan began a pilot project, in six locations across the province, which tests for financial eligibility those who apply for duty counsel assistance.

A June 1997 interim report on duty counsel financial-eligibility testing prepared by the Legal Aid Committee states that the Committee will extend the evaluation of the program, but will now exclude people in custody and young offenders from financial-eligibility testing. Although there was a need for some improvements in the data collection, the interim report indicates that fewer than one percent of all people seen by duty counsel in criminal courts at the test sites were ineligible for service. Only seven percent of all those seen by duty counsel for family law matters were ineligible.

Interestingly, the report notes that testing has not resulted in a large increase in the number of people who intend to hire private lawyers. In fact, more than 50 percent of clients who were refused service in family and criminal court intended to represent themselves. At this point in the evaluation, the Legal Aid Committee was unable to determine whether there were actual cost savings resulting from eligibility testing.

OTHER SERVICES OFFERED BY THE PLAN

Student Legal Aid Societies

The Plan directly funds student legal aid societies at each of Ontario's six law schools. Working under the supervision of review counsel and faculty, these societies offer legal assistance and public legal-education programs. During the 1995 fiscal year, the societies opened files and provided summary advice to approximately 11,300 people.

Research Facility

The Plan's Research Facility conducts research to support the cases of clients receiving legal aid. The Research Facility program includes producing standard and individualized research memoranda for lawyers acting on certificates, and the sale of standard memoranda of law to private practitioners.

Nishnawbe-Aski Legal Services Corporation (NALSC)

The NALSC, as an innovative legal services-delivery organization, was established through the collaborative efforts of NALSC, the Ministry of the Attorney General of Ontario, the Plan, and the Department of Justice. It was formally incorporated on March 1, 1990. With a head office in Thunder Bay, the corporation issues certificates for work under the Plan, but also directly offers supervised paralegal services, public legal education, and law reform work to 48 fly-in and road access Nishnawbe-Aski communities in northwestern Ontario. The NALSC is governed by a 12-person board representing the corporation's membership, who are the chiefs of Nishnawbe-Aski communities, and is managed by an executive director who is a lawyer. Other staff include a second lawyer, a public legal education coordinator; eight community legal workers, six of whom are located in various Nishnawbe-Aski communities or tribal council offices; two legal aid clerks; a business manager; and two support staff.