Block fees

Block fees are fixed fees paid to lawyers for their work on specific activities or stages of an eligible criminal case. Unlike LAO’s current hourly tariff, block fees do not rely on hours to compensate lawyers.

LAO’s block fee pilot program works in conjunction with our existing hourly tariff. LAO will pay routine criminal matters by block fees, and complicated matters by the hourly tariff. The result is a “hybrid billing and payment model,” in which a certificate can be paid either by block fees or the hourly tariff depending on the charges, the type of proceeding, or the progress of the case.

The block fee program is a key provision of the January 2010 Memorandum of Understanding (MOU) signed by the Ministry of the Attorney General (MAG), the Criminal Lawyers’ Association (CLA), and Legal Aid Ontario.

This payment structure accounts for a variety of charges, client needs, and proceedings in criminal defence work in Ontario.

Block fees represent the most significant reform to the criminal tariff in the last 16 years. The basic rules and policies governing payments to lawyers have not been reviewed or amended since 1995.

The objectives of the block fee program are to:

• promote high-quality client services and systemic efficiency;
• reduce administrative red tape;
• ensure that complicated cases and trials, and cases with vulnerable clients are funded appropriately;
• create greater accountability for the use of public funds.

The block fee program is being introduced in phases. The first “learning phase” of the block fee program rolled out on May 1, 2010. Over the course of this phase, LAO consulted with the Criminal Lawyers’ Association(CLA) and other groups of criminal lawyers to adjust the original pilot and develop the second phase of the program.

Phase 2 begins May 30, 2011. The second phase of the program is an expansion of the original pilot; it includes a wider range of block-fee eligible charges, and also significantly expands the block fees that are available. The second phase makes important changes to rules regarding “mixed” tariff and block fee accounts, interim billing, and disbursements.

Block fees will continue to evolve throughout this second phase. LAO is committed to working with the CLA, criminal lawyers, and other stakeholders during the second phase to monitor the impact of block fees, develop standards, and revise and adjust the program as necessary.

Yes. LAO has developed new rules for the second phase of block fees. LAO has amended several of the original block fee rules in response to comments from the bar.

The second phase of block fees is an expansion of the block fee pilot. During this phase, LAO will continue to work with the Criminal Lawyers’ Association, criminal lawyers and other stakeholders to monitor the impact of block fees and make necessary adjustments. LAO will monitor the block fee pilot from several perspectives, including the impact of block fees on clients, lawyers, LAO, and the justice system generally. LAO may amend the block fee schedule, the rules, or any other aspect of the expanded pilot in light of consultations, LAO’s financial experience, evolving circumstances, or other factors that suggest the pilot should be adjusted.

No. The OLAP block fee program for criminal matters was replaced by the current hourly tariff in 1995. LAO’s block fee program differs in several important respects from OLAP-era block fees. Most importantly, LAO’s block fee program includes crucial quality assurance tools, and more protection against the risks of inappropriate volume billing and financial overruns.

Yes, any criminal lawyer on LAO’s criminal panel can accept block fee-eligible certificates, assuming they have met the appropriate panel standards.

No. Not all criminal certificates are included in block fees. Some matters are automatically excluded if they are inherently complex, serious, or have highly variable costs. Other matters may be excluded based on the circumstances of an individual case.

For example, all Big Case Management/Complex Case Rate cases are automatically excluded.

The most serious indictable charges are also automatically excluded, including:

• homicide charges;
• manslaughter charges;
• attempted murder charges;
• criminal negligence causing death charges;
• conspiracy charges;
• kidnapping charges;
• arson charges;
• armed robbery charges;
• aggravated assault charges;
• the most serious drug charges
• [the most serious] robbery and sexual assault charges.

A wide range of complex criminal proceedings are automatically excluded, including:

• appeals
• dangerous offender applications
• Youth Criminal Justice Act matters
• faint hope applications
• extraordinary remedies
• miscarriage of justice reviews
• extradition proceedings

View the complete list of exclusions.

Some matters may be excluded from the block fee program by the district area director, depending on the individual circumstances of the case.

Most importantly, all cases that proceed to trial or are set for trial are excluded from block fees, irrespective of whether the case is a summary conviction or indictable matter.

If the most serious charge on a certificate is included in the block fee program, the determining issue is whether the matter has been set for trial. If the matter has been resolved prior to being set for trial, LAO will pay block fees. Once the matter has been set down for trial, the certificate will be paid by the hourly tariff, irrespective of whether the matter eventually resolves by way of plea, withdrawal, or contested trial.

No. Block fees only apply to adult criminal matters.

LAO has established a sequential and cumulative set of fees that match a lawyer’s work on a criminal case, including a limited number of fees for specialized proceedings such as bail, motions, and judicial pre-trials. LAO has also established block fees that address the needs of specific client groups. For phase 2, LAO is establishing three types of block fees:

• Resolution fees, including block fees for:
  o pleas
  o withdrawals/stays

• Pre-trial proceeding fees, including block fees for:
  o bail hearings
  o bail reviews
  o judicial pre-trials
  o Charter motions

• Vulnerable client fees, including block fees for:
  o Gladue matters
  o mental health matters

This is a much wider range of fees than was available under the original block fee pilot, and is consistent with the additional hours available under the hourly tariff. The rate paid in any particular case depends on the severity of the most serious charge on the certificate. The fee is determined by the most serious charge on certificate. More information about these fee types and a full block fee rate list is available.

LAO has established three block fee case categories. Each level –summary I, summary II, and indictable – includes a range of criminal charges. View the complete list of charges in each category.

LAO has developed a new block fee to account for the extra time needed to provide legal services to clients with serious mental health issues. This block fee will be available to lawyers if:

• An appointment is made under section 85 of the Legal Aid Services Act
• The client has a prior s. 85, CCB or ORB certificate
• Client appears in Mental Health Court
• Treatment order is in place
• Court has signed Form 48
• Contested fitness hearing

LAO will work with the mental health bar to develop a strategy for clients with serious mental health issues.

Block fee rates are consistent with the MOU and LAO’s historic case costs for cases and charges within the block fee program. LAO has adjusted the block fee rates to account for all current tariff increases, including the most recent 5 per cent tariff increase on April 1, 2011. Read more about how LAO calculated block fee rates.

LAO will work with the Criminal Lawyers’ Association to develop a study on legal aid funding of bail hearings. The project will analyze both certificate and duty counsel bail hearing services and will consider the impact of tariff hours and the criminal block fee on bail hearings, clients, and lawyers. LAO will reconsider the block fee rate for bail hearings at the conclusion of the study. In the interim, LAO has set a block fee of $250 for bail hearings. This sum is consistent with the current Tier III rate for two hours under the hourly tariff and a small additional percentage for discretion.

No. LAO concluded that tiering block fee rates would have a disproportionately negative impact on younger criminal lawyers. As a result, LAO will not pay differential fees based on experience.

LAO rates remain tiered for all criminal matters paid by the hourly tariff.

Yes. As noted above, the block fee rates are based on LAO’s current costs for these cases and have been adjusted upwards to account for all current tariff increases.

The block fee rates will be updated annually in accordance with the January 2010 Memorandum of Understanding between the Ministry of the Attorney General, the Criminal Lawyers’ Association and Legal Aid Ontario.

No. Discretion is not available on block fee matters. Discretion remains available for all matters paid by way of the hourly tariff.

Block fees have been calculated to include payments for the three most common and low-cost disbursements, including:

• fax charges
• in-office photocopying
• process servers

The list of included disbursements is much shorter under the second phase, compared to the original pilot.

All other disbursements (excluded disbursements) will be paid in accordance with the current tariff handbook. LAO’s policies regarding disbursements on hourly tariff accounts remain the same.

There will be no block fee for DNA applications for cases that remain within the block fees pilot. Recent case law and legislative developments have decreased the likelihood of success for challenges to post-conviction court orders for the taking of DNA samples. On the tariff side, LAO will continue to fund counsel to respond to DNA applications for the time being, although that policy is undergoing review in light of recent developments.

Yes. At this time, LAO’s Northern Incentive and Guaranteed Daily Rate will continue to apply to block fee matters. However, this is under review, as LAO is considering the impact of block fees on Northern Incentives and the Guaranteed Daily Rate. LAO will consult with stakeholders in Northern Ontario on these issues.

Lawyers will not need to attach dockets when submitting block fee accounts. However, lawyers should maintain dockets as they may be needed to support hourly tariff accounts or for audit/investigation purposes.

Yes. LAO’s annual billing limit (or hard cap) policy will apply to block fee billings and accounts.

For hard cap purposes, block fee billings will be attributed to the lawyer who appeared at the final appearance of a block fee matter.

LAO is reviewing its current hard cap policies to account for block fees. The current policies will remain in place pending that review.

No, the daily cap does not apply to block fee matters. LAO is reviewing its current daily cap policies to account for block fees. The current policies will remain in place pending that review.

Certificates that are “not resolved” will be paid by the hourly tariff in accordance with LAO’s existing rules for these matters

LAO is automatically excluding several complex charges and proceedings from the block fee program. These matters will continue to be paid by the hourly tariff. LAO may also exclude individual certificates within the block fee program on a case-by-case basis if certain criteria are met and lawyers apply in writing to their district area director (DAD). This exception will be granted only in exceptional circumstances. DADs will consider such factors as exceptional Crown resources devoted to the prosecution, exceptional disclosure, an exceptional number of charges, the likelihood of multiple proceedings, novel facts or legal arguments, and/or lengthy sentencing proceedings.

LAO wanted to establish block fees for the most common enhancements available under the regular criminal tariff. LAO also wanted the enhancements available under block fees to be largely consistent with the enhancements available under the hourly tariff, even if they are billed infrequently. This approach promotes consistency between the block fee program and the hourly tariff program and makes it easier for lawyers to understand what fees/hours are available under each program.

LAO will be assessing the block fee schedule on an ongoing basis. This assessment will include consideration of whether to maintain block fees that are paid infrequently, whether to create new block fees, etc.

Block fees benefit lawyers by:

• giving lawyers the financial certainty of a fixed fee;
• rewarding efficient, effective lawyers;
• reducing billing administration;
• providing more clarity and certainty to LAO’s billing rules
• providing payment of legal aid accounts within 21-25 days.

Block fees assume that not all cases take the same amount of time, but that the differences will average out over time. In other words, block fees assume that lawyers “win some and lose some.” Nevertheless, block fees have the potential to improve lawyers' earnings on legal aid work in several ways:

• block fees will reward lawyers who resolve cases appropriately and efficiently
• LAO will not require lawyers to submit dockets for their block fee accounts
• block fees will speed up account payment

Block fees will help lawyers assist LAO clients in the most expeditious and cost effective manner. For example, clients should be subject to fewer dates in set date courts, and clients who wish to resolve their matters quickly should benefit from an earlier resolution of charges that would inevitably be resolved.

LAO has developed a strategy for ensuring high-quality services in the block fee program.

This strategy involves the creation of new block fees for the most vulnerable clients, ongoing consultations with the bar and others regarding quality issues, establishing requirements that lawyers report on the outcomes or dispositions of their cases, and undertaking an independent third party review of block fee quality issues. LAO will also be reviewing its panel standards and panel management in criminal matters to ensure they appropriately account for block fee quality issues. Quality will be monitored very closely.

LAO has developed several new accountability tools to ensure that lawyers are still accountable to LAO for the use of public funds:

• Lawyers must provide information about outcomes and appearances when submitting block fee accounts, to demonstrate accountability.
• Legal Aid Online has system controls and prohibitions to prevent or deter questionable billing practices, such as capturing a solicitor’s service dates.
• LAO has developed new audit, compliance, and panel management practices to ensure lawyers comply with applicable LAO policies and procedures, including information verification through icons.

Finally, LAO will work with the Criminal Lawyers’ Association to monitor block fee billing practices to ensure that lawyers continue to provide quality service to legally aided clients under the block fee structure.