LAO Newsroom

Responses to recent media enquiries

LAO Newsroom

Response to the Law Times

Wednesday, August 29, 2012

LAO recently responded to a media request for an article that appeared in the August 27th edition of the Law Times.

Discretion Policy Changes Media Request

1. What changes are being made and why?

LAO has clarified the discretion guidelines to provide greater certainty and payment fairness for lawyers, promote quicker and more consistent decisions on discretion requests. They will also help LAO ensure fair and effective stewardship of public funds, manage discretion costs within its legislated budget and ensure greater compliance with the legislation.

2. What will the most significant differences be for lawyers?

Requests for discretion that meet the exceptional circumstances test and comply with the updated discretion guidelines will be eligible for a discretionary payment. If this test is not met, LAO cannot issue a payment. This means that some lawyers will receive less in discretionary payments.

The revised guidelines themselves are much clearer and more specific than before. Please go to the discretionary increases page on our website to see them.
In addition, in response to lawyers’ feedback (see answer below), as of Oct. 15:

  • LAO will implement a case management program and budgets for costly, complex family and criminal law matters (non-Big Case Management)
  • LAO will introduce two other initiatives – a tariff pre-authorization pilot for summary conviction trials and Child and Family Services Act (CFSA) status reviews; and a review of how the tariff has evolved in the legal system and how its evolution impacts legal aid clients and service providers.

3. What type of feedback did LAO received from the corresponding discretion consultations?

LAO held 29 consultation sessions across the province, where 300 members of Ontario’s private bar and legal associations shared their opinions and insights on discretion and other legal matters.
Some of the key themes about discretions included overall uncertainty about how discretion works and concerns regarding disclosure and eligibility for a discretion payment. The revised guidelines reflect the feedback provided during these consultations.

Lawyers also raised the issues of case management for costly family matters, and criminal matters that do not qualify for LAO’s Big Case Management (BCM) program. As discretion should be paid in only in exceptional circumstances, this has meant that some costly cases risked insufficient funding if they did not meet this requirement. Issues about discretion requests for summary conviction trials and child protection status reviews were also raised.  LAO will be introducing several new initiatives, as mentioned previously, in response to these issues.

4. What are some of the challenges faced by LAO currently when it comes to discretion requests?

Currently, Legal Aid Ontario receives discretion requests that do not meet the exceptional circumstances test contained in the Legal Aid Services Act regulations. LAO is unable to pay discretion if the test is not met. This means the burden is on counsel to demonstrate why they should be paid funds beyond what is contained in the hourly tariff.

LAO will engage the bar in training and information sessions prior to implementation on Oct. 15 to ensure they understand the guidelines and how to provide information required to demonstrate exceptional circumstances. In addition, LAO will provide the bar with information and training sessions on tariff pre-authorizations and case management.


Feroneh Neil
Acting Manager, Communications
Legal Aid Ontario