LAO Newsroom




Discretion guidelines consultation feedback

Posted on: Tuesday, June 19, 2012


Legal Aid Ontario (LAO) appreciates the time legal associations and members of the bar took to provide written submissions, attend consultations and provide online feedback on our discretion process. The consultation materials can be found here.

Below is an overview of general and specific area of law comments and non discretion feedback captured during the province wide discretion guidelines consultation. The information below is not exhaustive.

The main themes include:

  1. Overall dissatisfaction with how discretion is administered
  2. Concerns regarding disclosure and eligibility for a discretion payment
  3. Issues regarding the inadequacy of the tariff in certain areas
  4. Interest in more case management and budget setting for mid-level criminal and complex and costly family matters

LAO is considering the feedback received and will make amendments where appropriate to the discretion guidelines. Later this summer, the finalize guidelines are expected to be shared with lawyers together with an effective date and a training schedule.

LAO is looking for opportunities to respond to other non discretion feedback captured during the consultation, including the tariff.

Jawad Kassab
Director, Corporate Services Planning & Strategic Initiatives


Discretion General

Great dissatisfaction with discretion for many years

Pre-authorizations and mid level case management are a welcome idea

Appreciate LAO simplifying and clarifying discretion

Consultation vs. done deal?

Need to be clear about how lawyers will apply and receive discretion.

Requests for discretion of 1-3 hours waste both lawyer and LAO resources. Discretion denials on an appeal, for example, of 20-30 hours is substantial and of greater concern.

Much of what we do is routine but time consuming, not exceptional.

"Will LAO track discretion denials?

Tracing discretion denials is as important as tracking discretion approvals.

Tariff maximums were based on practices that were in existence years ago. LAO might want to look at empirical data regarding todays legal practice and process.

Discretion requests might provide guidance as to where the tariff is inadequate and might need adjusting.

It is our position that the whole concept of discretion should be eliminated in favour of simply a request for additional time, which would need to be justified.


Disclosure

Disclosure in and of itself should be in the discretion guidelines. We have no control over disclosure and we need to review all of it.

In mental health matters, we often have lots of disclosure dealing with the same client for many years.

There seems to be no scope for a discretionary increase where there is huge volume of disclosure, a lot of collaterals/witnesses to contact or, the most common scenario, where there is a change in circumstances during the course of a Child Protection Application.


Criminal

Restricting discretion will have a significant impact on mid-level cases which are not eligible for a big case management budget.

What does LAO plan to do in appellate matters and other areas not adequately covered by the tariff?

I am always concerned when payment is tied to results as I am paid for my time and not on a contingency basis. That being said, a good result for the client can represent a good investment of time.

While these changes are pitched to make things better for the profession, it appears they are designed to limit when a criminal case can be considered exceptional.


Results obtained

All charges withdrawn as a result of lawyers actions should be added to the Results Obtained discretion guidelines as it meets the exceptional circumstances test.


Family

Results obtained

Bar is very high for discretion under family/CFSA results obtained.

With the possible exception of the resolution from Crown Wardship to a Supervision Order, the results obtained would only apply to a Judicial Decision, either after a Trial or a Motion. This discourages early resolution and promotes going to trial.


Well-funded litigant

Unreasonable OCL/privately retained lawyer with client with deep pockets should be a factor in family cases either the lawyer is risking a complaint to LSUC by not adequately representing client on legal aid or is doing much of the work for free.


Hague Convention

Custody and access matters that involve the Hague Convention are rare and add to complexity.


Self-represented litigant

Having one self represented person on a file greatly increases the amount of court time taken and it greatly increases the amount of work and time required to be spent by the lawyer of the client who is represented.


Refugee

Will LAO review refugee and immigration discretion criteria post implementation of new legislation governing refugee and immigration matters?

LAO needs to establish clear guidelines and checklists to inform refugee lawyers about when they should notify LAO in advance about large complex cases that will require a significant number of hours in excess of the tariff. Clear guidelines for managing complex refugee cases when does LAO need to be notified.


Exclusion

Exclusion should replace the complexity factor currently labelled Ministerial Intervention. Not all Exclusion cases result in Ministerial intervention, but exclusion cases in and of themselves, meet the exceptional circumstances test.


Expert witnesses

Expert Witnesses should be added to the relevant factors discretion list.


Written Submissions

The bar does not have control over an IRB members request that written submissions be prepared. If all tariff prep is exhausted, written submissions cannot be billed under the tariff. The bar has relied on discretion to pay for written submissions in some instances.

Written submissions require a significant amount of time and effort. They are only required in a small number of cases. Written submissions may improve or ensure the quality of service legal aid clients receive from lawyers providing certificate services for refugee matters. Written submissions need to be addressed either by the tariff or discretion.


Number of narratives/claimants

The 'number of narratives' is a factor that should be part of the discretion guidelines together with the number of claimants.


Results obtained

Some additional criteria for consideration under results obtained:

  • 20% or greater IRB success rate
  • Individual IRB members success rate
  • Federal judge success rates

Non-discretion feedback

Below is feedback not specific to the Discretion Guidelines.


Tariff inadequacy

Tariff is not adequate discretion used to correct tariff inadequacies will LAO be addressing the tariff?

It is impossible to do Charter motions in two hours, and criminal appeals. Discretion helped to compensate for tariff inadequacy.

LAO should go back to the drawing board (conflation of tariff and discretion issues) - tariff and discretion cannot be separated.

The tariff is the problem in CFSA because there are too many appearances that do not fall into attendance time and have to fall into discretion.


Mid-level cases

A big problem is the non-BCM cases that are past the limits. LAO might want to create some criteria that are specific to a specific problem, e.g., Gardiner hearing.

Prior authorization/mid-level case management a welcome idea


Decision-makers

Who makes discretion decisions at LAO? Are they practitioners? You need practitioners to make discretion decisions.


Questions

If you have any questions or require further information please contact:

Jawad Kassab
Director, Corporate Services Planning & Strategic Initiatives
Phone: 416-979-2352 ext.4705
Email: kassabJa@lao.on.ca