Section III: The Statutory Framework For Legal Aid In Ontario
In response to the McCamus Report, the government of Ontario enacted legislation creating a new framework for the provision of legal aid services in the province.
The stated purpose of the Legal Aid Services Act, 1998, is to promote access to justice for low-income Ontarians by providing consistently high quality legal aid services in a cost-effective manner, by encouraging flexibility and innovation in the provision of legal aid services while recognizing current successful mechanisms, and by recognizing the diverse legal needs of low-income individuals and disadvantaged communities.
As recommended in the McCamus Report, the Act created a new, independent agency to provide legal aid services across the province.
The Legal Aid Services Act, 1998, establishes Legal Aid Ontario as an independent not-for-profit statutory corporation. LAO's mandate is to create and administer a cost-effective and efficient system for providing high quality legal aid services to low-income Ontarians.
The Act establishes a board of directors for Legal Aid Ontario, responsible for the governance and management of the corporation. The board establishes operational policy and develops strategic plans through the assessment of current and future needs for legal aid services. The board also develops performance standards and quality control mechanisms.
Membership of the board largely follows the recommendations in the McCamus Report. The board consists of the chair and ten regular members, appointed by the Attorney General, five from a list of persons recommended by the Law Society of Upper Canada. The chair is chosen from a list recommended by a committee established jointly by the Law Society and the Attorney General.
In selecting members, the Attorney General must ensure that the board has knowledge and experience in:
- business management;
- the operation of courts and tribunals;
- the operation of clinics; and
- the special legal needs and attendant social circumstances of low-income individuals and disadvantaged communities.
The Attorney General must also ensure geographic diversity, and must appoint a majority of non-lawyers.
Board members are appointed for two- or three-year terms, and may be reappointed. To protect the corporation's independence, board members' appointments may not be terminated except for cause.
The Act requires the board to establish an audit committee and a clinic committee, composed of board members. In addition, the board is required to establish three advisory committees, in the areas of criminal law, family law and clinic law. The board also appoints a president, who is chief executive officer of the corporation and who is responsible for implementing the policies of the board. The president is a non-voting member of the board.
II. LEGAL AID SERVICES
The Legal Aid Services Act, 1998 gives LAO broad authority in the design and administration of the legal aid system in Ontario. This independence allows for flexibility and innovation in the design of legal services, and allows LAO to adapt services in recognition of the diversity of special needs in the province.
In designing the legal aid program, LAO is required to:
- determine the needs of low-income individuals and disadvantaged communities in Ontario;
- establish priorities in terms of areas of law and types of proceedings; and
- determine the appropriate means of providing legal aid services in each area of law or type of proceeding.
The Act also requires LAO to have regard to the fact that the private bar is the foundation for the provision of legal aid services in the areas of criminal law and family law, and that clinics are the foundation for the provision of legal aid services in the area of poverty law.
Section 13 of the Act specifies that LAO must provide legal aid services in the areas of criminal law, family law, clinic law and mental health law. LAO may cover other areas of civil law, subject to the government's power to specifically exclude an area of civil law or type of civil proceeding if it chooses.
Within those limits, LAO is authorized to provide legal aid services by any method it considers appropriate, including, but not limited to:
- issuing certificates to lawyers and service providers;
- entering into block agreements with lawyers or groups of lawyers for the provision of services;
- funding clinics;
- operating legal aid staff offices;
- funding Aboriginal legal services corporations;
- providing duty counsel;
- offering public legal education;
- providing summary assistance; and
- authorizing alternative dispute resolution services.
This mixed model allows LAO to tailor its services to the needs of the individuals and communities being served and to the funding available to the corporation.
a) Duty Counsel
The McCamus Report recommended a broad range of services in the provision of criminal law, with the use of duty counsel expanded for situations involving limited preparation. The Report also recommended increasing the use of duty counsel in family law cases.
Duty counsel lawyers assist people who are unrepresented in criminal, family and youth court. They also provide advice and assistance on legal matters outside the court system and attend fly-in courts in remote northern areas.
The Act allows LAO to employ duty counsel and to enter into contracts with the private bar to provide duty counsel services. Currently, LAO has a network of over 130 staff lawyers and 1700 private lawyers providing duty counsel services.
The regulations establish classes of duty counsel and list their functions, including the assistance they may provide at different stages of a proceeding. The regulations also require duty counsel to make reports to LAO and to obtain approval before representing by certificate a person previously represented through the duty counsel program.
b) Certificate Program
Under the certificate program, an individual is assessed for financial eligibility through one of the 51 legal aid offices in the province. If eligible, the individual can take the certificate to any lawyer who accepts legal aid cases. Certificate lawyers are paid according to the tariff prescribed by regulation.
The Act provides a governance mechanism for the certificate program. The Act requires LAO's board to divide the province into designated areas, then to establish an area committee and appoint an area director for each area.
The area director selects panels of lawyers and other service providers who may accept legal aid certificates. The area director also reviews applications for certificates. An application must meet statutory and regulatory requirements, including financial eligibility, along with the policy and priority requirements of the board. The area director may attach conditions to a certificate, and may amend or cancel a certificate at any time.
The area director must refer some decisions to the area committee, such as requests for certificates to cover an appeal. A certificate for legal aid services for a group of individuals or for an individual who is not ordinarily resident in Ontario requires the approval of LAO's president.
The area committee is responsible for determining whether to issue a certificate in cases referred to it by the area director, hearing appeals from the area director's refusal to grant a certificate (with further appeal to a person designated by the board), and other functions as assigned by the board.
c) Staff Offices
The McCamus Report recommended establishing a pilot program of staff offices to provide legal aid services in the areas of criminal law and family law. The legislation enables the creation of staff offices, and currently there are three criminal law, three family law and one refugee law staff offices in the province. The family law and refugee law offices have become permanent, following positive evaluations of the pilot projects. The evaluation of the criminal law offices was just recently completed.
As recommended by the McCamus Report, clinics continue to be the foundation for the provision of poverty law legal aid services in the province. Clinics are independent, non-profit organizations that provide services in areas such as social benefits, housing, and worker's compensation.
The Act grants LAO the authority to provide funding to clinics for up to three years at a time. In deciding whether to fund a clinic, LAO may consider matters such as the legal needs of the individuals or community served, the cost-effectiveness of providing services through a clinic, the past performance of an individual clinic, and the legal needs of other communities also seeking funding. Funding must comply with government transfer payment accountability requirements, and LAO may impose any other terms on the funding that it considers appropriate.
Under the Act, LAO designates a person to consider applications for funding by clinics. This person may make a decision or may refer the matter to the clinic committee of the board of directors. An applicant may request that the clinic committee reconsider a decision.
LAO is required to monitor the operation of a clinic. Clinics must provide LAO with audited financial statements, a summary of legal aid services provided, a summary of complaints received by the clinic and any other information requested. LAO's board of directors may reduce or suspend clinic funding if it believes a clinic is not complying with the Act or with the terms and conditions of the funding.
The board of directors of a funded clinic is responsible for ensuring that the clinic complies with the Act, the terms and conditions attached to the funding, and the operational standards established by LAO. The clinic board must also ensure that the clinic provides clinic law legal aid services in accordance with the needs of its community. There are currently 80 clinics in Ontario.
The Act establishes a funding mechanism that essentially follows the recommendations of the McCamus Report, with funding provided on a rolling, three-year basis and legislated reporting responsibilities.
Under the Act, LAO must submit its annual budget for the next fiscal year to the Attorney General for approval, and it must contain projected operating budgets for the following two years. Once the Attorney General approves the budget, it is included in the estimated budget of the Ministry of the Attorney General.
Under the legislation, LAO is permitted to enter into arrangements with other entities to receive additional funding. LAO currently has additional funding arrangements with the federal government and with the Law Foundation of Ontario.
A small amount of funding also comes from client contributions. The Act allows LAO to require an applicant to agree to contribute toward the cost of legal services to be provided. A determination of an applicant's ability to contribute is made in accordance with the Act.
LAO is also authorized by the Act to deduct the cost of legal aid services from any amount recovered by the applicant in respect of the matter for which legal aid services were provided. The regulations establish mechanisms for determining the appropriate amount to be paid to LAO.
While the Act establishes LAO as an independent corporation, the government remains accountable for the use of public funds. To this end, the Act establishes some restrictions on LAO's financial management. The Act includes criteria for the choice of banks and investment agents and requires government approval of real property transactions. The government also retains the power to regulate the borrowing and investment powers of the board.
LAO is required to maintain a contingency reserve fund, which the government prescribes through regulation. LAO must notify the Attorney General of each withdrawal of capital from the fund, and must obtain approval from the Attorney General for any withdrawal over $5,000,000.
a) Reporting Requirements
LAO must submit annual reports to the government that contain annual financial statements audited by the Auditor General, a statement on the nature and amount of legal aid provided, a statement on how LAO has met its performance standards and any other information the Attorney General may request.
The Attorney General and LAO must enter into a memorandum of understanding every five years, which requires the corporation to be accountable for the expenditure of public funds and for meeting its mandate by providing the Attorney General with:
- annual business plans;
- multi-year strategic plans;
- an annual statement of LAO's policies and priorities for legal aid services;
- an annual statement of LAO's investment policies and goals;
- meeting agendas;
- performance standards; and
- any other matter required by the government.
LAO also must provide the Attorney General with quarterly financial reports on its contingency reserve fund.
V. GOVERNMENT ROLE
In addition to the financial oversight noted above, the Act preserves government authority to ensure responsible management of LAO through regulations on the scope of legal aid and the authority to appoint a temporary administrator.
Under the Act, the government retains authority to make regulations on a number of substantive matters, including financial eligibility requirements for legal aid and the tariff of fees and disbursements. In addition, the government may control the overall scope of legal aid by excluding areas of civil law or types of cases.
i) Financial eligibility
The government and LAO jointly developed the financial criteria for legal aid, which are incorporated into government regulation. Under the regulation, LAO examines four factors:
- an applicant's family unit, to identify which family members should be included in a financial assessment;
- assets available to the family unit;
- income of the family unit; and
- a comparison of income and assets to the necessary budgetary requirements of the family unit.
The tariff of fees and disbursements is provided in a series of schedules to the regulations under the Act. The schedules list the legal services required for each type of case and indicate the maximum number of hours a lawyer may bill for each service.
The schedules must be read in conjunction with a series of notes in the regulation, which address exceptional circumstances, such as representation of more than one client, or the use of junior counsel.
The tariff has been reviewed and increased several times since the legislation was originally enacted. The Act and regulations do not, however, provide a mechanism for regular review of the tariff.
iii) Scope of legal aid
The government has not restricted the scope of legal aid beyond the prohibitions listed in the Act. The Act prohibits the provision of legal aid services in:
- defamation actions;
- relator actions;
- proceedings for the recovery of a 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; and
- proceedings relating to elections.
b) Temporary Administrator
If the Attorney General loses confidence in the board's ability to fulfill its mandate, the government retains the option of temporarily removing authority for the corporation from its board of directors. The Attorney General may apply to the Superior Court of Justice for an order appointing an administrator to take over administration of LAO. The court may make the order if it is satisfied that the appointment is in the public interest and is needed to ensure the continued and effective provision of legal aid services.