Public proceedings of the Board
Meeting of the Board of Directors on February 6, 2015
Board members present
John McCamus (Chair); Aly Alibhai; Nancy Cooper; Michelle Haigh; John Liston; James McNee; James Yakimovich; Robert W. Ward (CEO/Ex Officio)
David Field, Felice Lambermont, Sue McCaffrey, David McKillop, Stephanie Mealing, Marcus Pratt, Michelle Séguin, Aneurin Thomas
1. Meeting agenda
The meeting agenda was adopted.
2. Disclosure of conflict of interest
No conflicts of interest were identified.
3. Board meetings
The minutes of the Board meeting held December 5, 2013 were adopted.
4. Chair’s report
The Chair presented a verbal report, as follows:
- Met with the Law Society of Upper Canada’s Treasurer and its CEO
- Provided an end-of-year interview with the Law Times newspaper, which resulted in an email exchange with members of the Friends of Community Legal Clinics (included in correspondence annexed to the president’s report)
- Spoke at the opening of the St. Michael’s Hospital Legal Services Project
- Attended the MAG governance training program
- Along with the Vice-President, Policy, Research and External Relations, attended the seventh National Criminal Justice Symposium in Montreal (a report is being prepared and will be circulated to the Board for their information).
4.2 Expense disclosure
The Chair’s expenses totalled $2,725.70, for airfare to Montreal for the Criminal Justice Symposium and catering costs for the Sidney B. Linden Award ceremony.
4.3 Advisory committee appointments
The Chair presented the list of advisory committee appointments for 2015 to 2017. A member suggested inviting Patricia Faries to represent the northeast district on the Aboriginal issues advisory committee.
- The Board approved inviting Patricia Faries to sit on the Aboriginal issues advisory committee
- The Board approved the advisory committee appointments and re-appointments for 2015/17.
- The Board received the Chair’s Report.
5. President and CEO Report (continued)
The President reported as follows:
5.1 Department of Justice
The Department of Justice has expressed a desire to enter into a new funding agreement with respect to more practical ways of conducting large, complex and costly cases. LAO receives a 15 per cent fee for administering these federally funded cases.
5.2 Tariff and Memorandum of Understanding (MOU) discussions
The Criminal Lawyers’ Association (CLA) has advised its membership that the tariff will be increased April 1, 2015 and that the MOU expires the following year. The Attorney General and Deputy had said they wanted a round-table discussion with all stakeholder associations.
Staff forecast an operating surplus due to increased Law Foundation of Ontario (LFO) revenues and lower corporate expenditures. As this surplus is in-year rather than ongoing, there is potential for unfunded tariff increases. A federal interest rate reduction would also pressure LAO’s revenue from the LFO.
5.3 Clinic transformation
Transformation is going well in the southwest region; a needs analysis is in the planning stage. Amalgamation discussions are ongoing in Ottawa.
The GTA clinic co-leads have asked LAO to declare its support for its vision plan and encourage disinclined clinics to engage in transformation. LAO will maintain a neutral position for the foreseeable future.
5.4 Treaty 3
LAO has engaged Murray Segal to conduct discussions with the Chiefs and to help develop a plan to improve the delivery of legal aid services to Treaty 3 clients in the northwest. A report will come before the Board in the fall.
5.5 West Toronto Community Legal Services Clinic (WTCLS)
The WTCLS has resolved all of its issues and is now an effective and efficient clinic. The clinic will be released from the Dispute Resolution Policy process.
5.6 African Canadian Legal Clinic (ACLC)
The ACLC is implementing the conditions in the Clinic Committee’s decision dated November 7, 2014.
All matters pertaining to the ACLC will be referred back to the Clinic Committee and the Board in due course.
5.7 Other clinic issues
Some worthwhile projects undertaken by individual clinics do not enjoy stable funding. But clinics are aware that a commitment to modernization will likely result in increased flexibility and the ability to make their own funding decisions.
It would be cost-prohibitive to fund all clinics with special programs, but LAO can provide other corporate supports. Some specialty clinics, for instance, have committed to co-location, which will achieve significant savings that can be reallocated to increased client service.
5.8 Workplace issues
LAO will review its workplace discrimination, harassment and violence policy and develop an improved operational complaint process.
The Vice-President and General Counsel reported on the status of the campaign for collective bargaining rights in light of the recent Supreme Court decision in Mounted Police Association of Ontario et al v. Attorney General of Canada.
LAO sent a letter to the executive legal office in the Office of the Chief Justice, Ontario Court of Justice, refuting unwarranted allegations levelled at LAO. The President noted that this exemplifies a strategy to respond to criticism and keep the Board informed of allegations by stakeholders and others in the justice system.
The Vice-President for the central east region and the administrative judge in Barrie held a positive meeting in response to a complaint about discourteous behaviour of a particular judge towards duty counsel.
5.10 Stakeholder engagement
Members of Provincial Parliament (MPPs) and their staff have been contacted and Directors General have held most meetings—an initiative accomplished in record time. Among other matters, DGs are discussing:
- the increased size and composition of the duty counsel workforce
- LAO’s hiring of more staff lawyers is not turning into a public defender system.
5.11 Litigation report
The Vice-President and General Counsel highlighted the following:
- LAO’s dispute with the provincial Civil Remedies for Illicit Activities (CRIA) office has been resolved. $11,000.00 was seized, and the Federal Crown, the CRIA and LAO have agreed upon an equitable distribution. LAO and the CRIA expect to work more cooperatively in future.
- There was a claim of incompetent counsel against a per diem duty counsel when a client’s conviction on a guilty plea was set aside, a new trial ordered, and the presiding judge in that new trial was very critical of duty counsel. General Counsel Office will report on the Judge’s concerns.
- LAO has served and filed a statement of defence and is awaiting the clinic’s response in a clinic litigation matter.
5.12 CEO retirement
The Chair noted that much in the president’s report reflects Bob Ward’s wonderful leadership over the years.
The Board received the second instalment of the President and CEO’s Report.
6. Board reports
6.1 Corporate service reports
6.1.1 Update from the Vice-President and CAO
The Vice-President and CAO reported that:
- the Criminal Lawyers’ Association (CLA) is requesting a meeting with MAG and LAO before April 1, 2015 to discuss a new Memorandum of Understanding.
- The Law Society of Upper Canada (LSUC) is studying how Alternative Funding Agreements (AFAs) fit within its bylaws and structures.
- LAO has recently hired 13 senior counsel, who are now providing direct client service, including trials, and mentoring more junior staff lawyers. LAO will hire some of the articling students being called to the bar this spring.
The Chair requested a report explaining how senior counsel deals with matters that could be done on certificates. The President explained that senior counsel act within the range of activity established for the duty counsel program; they handle special circumstances where a certificate could be issued, and private bar lawyers are not available to act. He noted that senior counsel are not generally supposed to take on certificate work, but will intervene where necessary to ensure compliance with LAO’s “client first” policy.
There was a discussion of the private bar perception that staff (as opposed to per diem) duty counsel lack the expertise to recognize evidentiary or Charter issues which may be available to the defence in negotiating a plea or speaking to sentence.
The President and CEO pointed out that staff duty counsel are thoroughly trained to take instructions and make decisions in the best interests of clients. The Vice-President and General Counsel added that duty counsel have been representing clients on guilty pleas since the beginning of the duty counsel program.
LAO frequently receives positive comments from the judiciary and others in the justice system on the invaluable contribution of duty counsel in the courts.
The Board received the Corporate Services Report planning strategy update.
6.1.2 Exceptions to prior counsel relationship direction
The Vice-President and CAO noted that duty counsel should avoid interference with the solicitor-client relationship if a client before the courts is represented by counsel.
Persons before the courts who have retained a lawyer may, however, receive duty counsel assistance for guilty pleas or judicial interim release orders, if:
- their lawyer is unavailable
- they have discouraged clients from proceeding without their counsel and the client insists
- duty counsel has advised the court, for the record, that the case is proceeding on the explicit instructions of the client, notwithstanding an existing solicitor-client relationship.
This prior counsel direction goes beyond the LSUC rule 603.7, which prohibits communicating with clients who have retained counsel, as there is an exception for the provision of a “second opinion” which complies with the spirit of the Law Society rule.
The Board approved an amendment to the Prior Counsel Direction to include the exceptions to the direction as outlined above.
[Note: LAO will be consulting on this direction before finalizing]
6.1.3 Report on clinic compensation funding for 2014/15
The Vice-President and CAO reported that the Association of Community Legal Clinics of Ontario (ACLCO) has requested that LAO provide clinic lawyers with the compensation framework recently implemented for LAO lawyers.
There is, however, no clinic salary range identified, and one objective of the clinic compensation funding framework is to transfer accountability for compensation to clinic boards. Clinics can retain any compensation savings they achieve.
The Board approved:
- a one per cent compensation funding increase for the 2014/15 fiscal year, and a one per cent pay equity funding adjustment for eligible clinics for the 2015 calendar year
- an increase to the funding maximums for clinic positions, to match comparable LAO position salary range maximums
- asking staff to provide a paper setting out a consultation plan with clinics on compensation funding approaches for the future.
6.1.4 PeopleSoft financials upgrade—change request
The Vice-President and CAO reported that this project will be completed ahead of schedule and under budget by approximately $300,000. The budget surplus could be used to retain Deloitte to review all the PeopleSoft security profiles and increase security access controls, which would further reduce security and privacy risks. The amount requested is within the budget framework for the PeopleSoft upgrade the Board had previously approved.
The Board approved the change request for improving PeopleSoft financial security roles and access controls, for a total amount of $253,182.60.
6.1.5 Request for an internally restricted fund for specialty clinic modernization
The Board discussed the progress and benefits of the specialty clinic co-location project. The Vice-President and CAO said staff are requesting that LAO set aside a portion of its accumulated surplus to fund specialty clinic modernization. LAO has discussed this request with its external auditors, and the balance sheet would disclose that a certain percentage of the accumulated surplus is being appropriated and allocated for this specific purpose.
Subject to confirmation by LAO’s external auditors, the Board approved creating an internally restricted fund to appropriate LAO’s March 31, 2015 accumulated surplus for the cost of the co-location of the specialty clinics, estimated to be in the $3M to $4M range.
6.2 Strategic Planning and Compliance Reports
6.2.1 Client satisfaction survey results
The Vice-President, Strategic Planning and Compliance reported that LAO sent over 11,000 surveys, via regular mail, to LAO clients. There were 985 responses—a response rate that allows for statistical accuracy.
This survey will be the baseline for future surveys. It identified a high level of satisfaction with quality of service. Formulating similar questions for different client groups was a challenge, and there were slight differences in scores—family law (87.6 per cent), duty counsel (84 per cent) and certificate (77 per cent).
There were very few negative comments from respondents, including in-custody clients. An analysis of the comments will be prepared and presented to the Board.
6.2.2 Lawyer satisfaction survey results
The Vice-President, Strategic Planning and Compliance, reported that 3,300 lawyers were sent the survey electronically, and 548 responses were received (17 per cent). He also said:
- The survey included questions about staff services, on-line services, including billing and payment, and training
- 40% of respondents indicated a desire to do additional legal aid work in the future
- Improvements are still needed in some lawyer service issues, including the lawyer portal.
- the point scale currently in use will provide a good baseline for future surveys.
The President and CEO has requested a survey on how LAO staff feel the private bar treats them, to provide a balanced account for stakeholder conversations.
The Board received the client and lawyer satisfaction surveys.
6.3 Policy and External Relations Reports
6.3.1 Financial eligibility interim discretion strategy
The Director General, Policy and Strategic Research reported that enhanced financial eligibility could be implemented as quickly as possible. New certificate guidelines in s.1 of O.Reg 107/99, as amended, would give LAO authority to implement policies that exceed the income thresholds established in the financial eligibility test. Staff recommends:
- immediate implementation of the next six per cent increase
- additional interim expansion criteria based on seriousness of consequences (i.e., application of the duty counsel financial eligibility test in the event of domestic violence, child protection proceedings, criminal offences punishable by a maximum of 14 years or more, or removal from Canada— which staff are recommending) or most vulnerable or high-needs client groups.
- approved an across-the-board early implementation of the next six per cent increase to the eligibility guidelines and
- approved LAO’s interim financial eligibility proposal, authorizing the use of discretionary authority to apply the duty counsel financial eligibility test for applicants facing the most serious consequences, provided the funds are available to do so.
6.3.2 Financial eligibility expansion
The Director General, Policy and Strategic Research, reported that in December 2014, the Board had committed to spend 60 to 70 per cent of the new funds on service expansion, largely in the certificate program. Staff was asked to report back to the Board with a comprehensive plan, including financial estimates. He further reported that:
- enhanced intervention and mediation roles could have the most beneficial impact on clients
- LAO should focus on the most vulnerable clients, i.e. people who are Aboriginal, experiencing domestic violence, dealing with mental health issues, etc.
- potential service expansion options are available in all areas of law
- the Appendices include a stakeholder consultation list, service expansion options and a 1994/2015 coverage comparison background chart
A Board member recommended adding an additional family law stakeholder group for consultation.
On the understanding that the Ministry of the Attorney General and all stakeholders will be consulted, the Board:
- received the financial eligibility expansion update, and
- approved the proposal and next steps.
6.3.3 Clinic financial eligibility report
The Director General, Policy and Strategic Research reported on the extensive consultation with community legal clinics (submissions from over 60 clinics were received). He reviewed the three options:
- Funding for all clinics
- Funding for the top 25 clinics with the fewest resources per low income population
- (Recommended by staff:) Funding for the top 12 clinics with the fewest resources per low income population, plus for regional needs.
Option 3 effectively balances the need to meet localized needs, permit innovation and provide LAO with more direct involvement to ensure the funds are used strategically. It also establishes a comprehensive regional fund to which every clinic in the province could apply to permit service expansion in their region.
A majority of the Board approved, in principle, to distribute funding to the top 12 clinics with the fewest resources per low income population, plus regional funding. One Board member opposed.
6.3.4 Domestic violence strategic direction
The Director General, Policy and Strategic Research noted that LAO is in the process of developing a corporate-wide strategy to improve legal aid services to clients who have experienced domestic violence. LAO has similar strategies in other areas, such as mental health, Aboriginal justice and French language services.
The Board approved the development of a LAO domestic violence strategy.
6.4 Joint General Counsel and Policy Reports
Legal Aid Services Act (LASA) amendments
The Vice-President, Policy, Research and External Relations reported that LASA has not received a significant review since 1998, and the legislation is no longer reflective of LAO’s business.
A joint Policy/General Counsel team has identified potential amendments to LASA and the regulations.
The Board authorized staff to proceed with a proposal to MAG to consider amendments to the Legal Aid Services Act, 1998 provided that the proposed amendments will be brought back to the Board for final decision.