Group and Test Case Certificates

How to Apply for Group and Test Case Certificates
Legal Aid Ontario's (LAO's) statutory mandate is to "promote access to justice throughout Ontario for low?income individuals." The Group Applications and Test Cases Committee supports this mandate by providing LAO with expert, independent advice on applications for legal aid assistance for group certificates, test cases and/or coroner's inquests.

• Group applications
  A group application is an application on behalf of a group of people who have a common interest in a legal matter.

• Test cases
  A test case is a legal proceeding that is representative of a larger number of existing or potential actions. Test cases are brought on behalf of one or more litigants to "test" the relevant law, legislation or practices for the benefit of a larger group.

• Coroner's inquests
  Coroner's inquests provide an opportunity for raising systemic issues of public policy which may be related to the death of the deceased. The aim is to encourage recommendations from the jury which might prevent similar tragedies in the future.

• Effectiveness
  Group applications, test cases and coroner's inquests:

  • Are cost-effective ways of addressing important legal issues.
  • Reduce the need for further litigation by allowing litigants to bring a single proceeding that represents a larger number of existing or potential actions.
  • Promote greater access to the legal system by clarifying laws to benefit specific groups or communities and low-income Ontarians generally.

The Committee

The Committee fills an important role within LAO. Group cases, test cases and coroner's inquests often raise complex or new legal issues. As a result, expertise is needed to assess the strengths and weaknesses of the legal matter.

Group cases, test cases and coroner's inquests may be controversial. It is important that they be assessed objectively and independently on their merits and potential benefits to low-income Ontarians.

The Committee currently includes nine volunteers:

• Sam Rickett, Chair, civil lawyer, Toronto
• William Sullivan, family and immigration lawyer, Toronto
• Elizabeth Thomas, criminal and prison lawyer, Kingston
• Chantal Tie, Executive Director of South Ottawa Community Legal Services, Ottawa
• Sonia Lawrence, equality rights, the Charter and welfare administration, Assistant Professor of Law, Osgoode Hall Law School, Toronto
• Janet Mosher, equality rights, the Charter and poverty law, Associate Professor of Law, Osgoode Hall Law School, Toronto

The Committee meets once a month (except for August and sometimes December). It considers applications and recommends to either the President of LAO, an Area Director or Area Committee, whether to issue a certificate. The Committee also recommends the amount of funding that should be available for each successful application. The Committee's recommendations are accepted in the majority of cases. However, the Committee does not have the authority to issue legal aid certificates.

Types of Cases Considered

Some legal proceedings involve issues that are important only to the litigants themselves.
Generally, purely private matters are not considered. The Committee considers applications for certificates in legal proceedings with broad implications. The purpose of these proceedings is to determine, enforce or clarify important rights or obligations of all low-income Ontarians, specific groups, or disadvantaged communities.

In all cases, the Committee will balance the potential cost of an application against its potential benefit.

Areas of law
The Committee will consider applications in the areas of criminal, family, refugee, clinic, mental health, Aboriginal, prison law and Charter litigation. The Committee will also consider applications in other areas of law if it can be shown that the legal issue addressed in the application will benefit low-income Ontarians.

Selection criteria
The selection criteria are separated for the following two types of certificate requests.

Coroner's inquests
This section applies to applicants or groups of applicants seeking funding for coroner's inquests. It will be necessary for a lawyer to help answer some of the questions below.

Financial

1. Is the applicant or group financially eligible under Legal Aid's financial criteria?
2. Can the applicant or group contribute financially or in other ways?
3. Can the applicant or group fund the case privately?
4. Has the applicant or group attempted to raise funds privately or from other organizations? Will the applicant or group do so in the future?

Significance/Public Interest

5. What public interest issue(s) does the applicant intend to raise at the inquest?
6. How will the applicant's participation at the inquest benefit low-income Ontarians?
7. What systemic issues will be raised at the inquest? Who is likely to be affected by the jury's recommendations?

Novelty

8. What other parties are already or likely to be present at the inquest?
9. What public interest issues are those parties likely to raise? Why is the applicant's position/interest different than those of existing or likely parties?
10. Will the inquest consider novel or unique public interest issues, or have other inquests considered similar issues?
11. Assuming these issues have been raised in a previous inquest, are there compelling reasons to raise these issues again?

Cost-Benefit

12. What is the estimated cost of representation at the inquest, including attendance, research, preparation, drafting of legal documents and disbursements?
13. How many days will a lawyer's presence be required at the inquest? (The Committee anticipates that a lawyer will not be needed to attend the entire inquest.)
14. In what way and to what extent could the jury's recommendations flow to others beyond the parties to the inquest?

Other Factors

15. Are there other aspects of the inquest or situation that the Committee should consider?

Group applications and test cases

This section applies to applicants or groups of applicants seeking funding for group applications and test cases. It will be necessary for a lawyer to help answer some of the questions below.

Financial

1. Is the applicant or group financially eligible under Legal Aid's financial criteria?
2. Can the applicant or group contribute financially or in other ways?
3. Can the applicant or group fund the case privately?
4. Has the applicant or group attempted to raise funds privately or from other organizations? Will the applicant or group do so in the future?

Significance

5. What is the significance of this issue to low-income Ontarians?
6. How does the case improve access to justice?
7. Which communities or groups share an interest in the outcome of the issue?
8. Is this application representative of a larger number of existing or potential actions that raise the same legal or factual issues?

Novelty

9. Has a court or tribunal considered this issue? What was the outcome?
10. Is another person or group currently or likely to litigate this issue?
11. Would the applicant be prejudiced if someone else chose to argue the issue? Is there someone in this position?

Merit

12. What are the specific legal grounds for the application?
13. What remedy is being sought? Are other remedies available?
14. What is the likelihood of succeeding?
15. Have other remedies or strategies been pursued? If so, what were they?

Cost-Benefit

16. What is the estimated cost of the case, including research, preparation, drafting of legal documents and disbursements?
17. In what way and to what extent will the benefit of a successful case flow to others beyond the immediate applicant(s)?

Other Factors

18. Are there other aspects of the case or the situation of the applicant(s) that the Committee should consider?

The Process

Individual application
Applicants should:

1. Call the LAO office in advance to find out what they need to bring and the office's hours of operation.
2. Go to a Legal Aid Ontario (LAO) office with information about their financial circumstances, income, assets, any property they own and their expenses.
3. Tell the interviewer that they are applying for legal aid for a test case, coroner's inquest or a group application.
4. Complete an application for legal aid.

Group application
If the application is from a group of individuals, a representative number of the group must apply and be financially assessed. The representative applicant should:

1. Contact the Legal Aid Ontario office in advance to find out how many members of the group need to go in to apply. In some cases, the secretary of the committee will be contacted to find out how many members of the group should apply.
2. Tell the interviewer in the office that they are applying for a group matter.

Not-For-Profit Organization Applications
If the application is from a not-for-profit organization, a representative of the organization must:

1. Attend the LAO office with copies of the financial statements of the organization and the mandate or objects of the organization.
2. Provide some details about the organization, including the number of staff, the source of funding for the organization and whether the organization has the ability to raise funds privately.

When applicants are granted a certificate
If financially eligible for legal aid, applicants will receive a certificate for an opinion, which they must take to a lawyer. This certificate will permit the lawyer to respond in writing to the questions in the selection criteria.

The lawyer must send the written response to the selection criteria to the Vice President, Policy and Research at the address below and include a budget, separating costs for research, preparation of the argument and documents and the costs of disbursements, including any experts.

The group applications and test cases committee meets in Toronto to consider each application. Although attendance is not required, it is recommended lawyers attend the meeting in person or by telephone to answer any questions the committee may have. After the meeting, the committee will send a letter with their recommendations to the lawyer. The committee will also tell the area director or the area committee who must decide whether to follow the group applications and test cases committee's recommendation.

When applicants are refused a certificate
Applicants have a right to appeal under the normal legal aid appeal process. The notice of refusal will tell them about their right to appeal.

For Further Information

Please contact:

Coreen Lapointe
Business Manager, Policy & Research
Legal Aid Ontario
Tel: (416) 979-2352 ext.6460
Email: lapointc@lao.on.ca

Possible Test Cases

For information on possible test cases please refer to the following:
  - Correctional Law
  - Mental Health Law
  - Criminal Law

For Further Information

Please contact:
Coreen Lapointe
Business Manager, Policy & Research
Legal Aid Ontario
Tel: (416) 979-2352 ext.6460
Email: lapointc@lao.on.ca