Public proceedings of the Board

Meeting of the Board of Directors on April 10, 2015

Attendance

Board members present

John McCamus (Chair); Aly Alibhai; Nancy Cooper; Michelle Haigh; John Liston; James McNee; Derry Millar; James Yakimovich; Robert W. Ward (CEO/Ex Officio)

Staff

Mary-Ann Cochetto; David Field; Charles Lafortune; Felice Lambermont; Sue McCaffrey; David McKillop; Stephanie Mealing; Heather Robertson; Michelle Sguin; 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

3.1 Decision

Minutes of Board meetings held February 5 and 6 and March 11, 2015 were adopted.

4. Chairs report

The Chair presented a verbal report, as follows:

4.1 Meetings and activities

  • Represented LAO at a swearing-in ceremony for two new justices to the Ontario Court of Appeal
  • Attended annual justice sector Francophone stakeholder events
  • Joined by the President, attended a quarterly meeting with the Deputy Attorney General
  • Met with the Premiers Deputy Director, Public Appointments and is attempting to meet with the Attorney Generals public appointments director, about appointments and/or reappointments to the LAO Board
  • Was interviewed on Radio 1010 AM on financial eligibility increases
  • Was interviewed by Ottawa Law School Show (a web-based law program), on access to justice issues, etc.
  • Attended a reception for retiring Ontario Court of Justice Chief Justice Annemarie Bonkalo

4.2 Succession planning sub-committee of the Board

The sub-committee has interviewed two search firms and plans to interview a third immediately following this Board meeting. It will decide which executive search firm to engage later in the day.

4.4 Bencher elections

As it is not appropriate for LAO to be seen as lobbying for a particular Bencher candidate, LAOs policy is that no one use LAOs email list for campaigning; General Counsel has also issued a memo to that effect.

The Board discussed the policies of the Law Society in Bencher elections. One Board member suggested that LAO should say it is subject to Ontario Public Service rules which dictate that candidates are precluded from using public sector resources, such as LAOs email list.

4.5 June 2015 Board retreat and strategic planning session

A sub-committee of the Board has been appointed to suggest topics for discussion and presentations at the June 2015 Board retreat and strategic planning session. As in years past, the Vice-President, Strategic Planning and Compliance, has volunteered to assist in the process.

4.6 Mental Health Law Strategy

The Board is expected to approve this strategy in the near future. The Chair plans to schedule a site visit to the Mental Health Court at Old City Hall for Board members prior to the June 2015 Board meeting.

4.7 Proactive disclosure of the Chairs expenses

Airfare and hotel accommodation for the National Criminal Justice Symposium in Montreal came to $590.45.

4.8 Decision

The Board received the Chairs report.

5. President and CEOs report (continued)

The President and CEO reported the following:

5.1 Financial

  • LAO predicts a surplus of approximately $5 to $7 million
  • A balanced budget is all but ensured
  • The new financial eligibility guidelines introduced November 1, 2014 have resulted in the issuance of only 830 new certificates. Information from other jurisdictions, such as the UK, confirm that this type of initiative takes time to roll out.
  • The average cost per assist is decreasing.

5.2 Trends and recognition

  • Over the last few years, LAO has increased its efficiency by approximately 20 per cent, possibly attributable to LAOs multi-channel delivery system.
  • LAO is issuing more certificates for refugee law, but fewer certificates for criminal and family law programs.
  • There are substantial savings and increased quality in the Big Case Management (BCM) program, particularly in panel management.
  • Stakeholder engagement meetings appear to be more productive.
  • MAG recognized LAO as a leader in the Ontario Public Service in the provision of French language services.
  • The bar is meeting new refugee panel standards with general approval.
  • Senior counsel are doing exceptional work in their new role. On occasion, judges have requested them to act as amicus for unrepresented clients before the courts.

5.3 Call centre

Wait times in the client call centre are on the increase as a result of expanded interaction with clients. The quality and length of the calls has doubled. Plans for improvement are in development.

5.4 Clinics

There are conflicting media reports on GTA clinic transformation. The process is relatively unstable, but a number of clinics are still committed to some form of modernization. LAOs strategy is to encourage and support without driving the initiative. The project leads are proceeding with clinics which remain committed, and gently encouraging those which are not.

Specialty clinics are proceeding with a proposed co-location project.

5.5 Alternative Fee Arrangements (AFAs)

Many private bar lawyers have AFAs, covering a significant number of the total number of certificates.

5.6 Misinformation about LAO

There are concerns that some judiciary may not have up-to-date and accurate information about LAO. Over the next several months, staff will attempt to interact directly with judges and justices of the peace to provide information.

The President noted that the newly-appointed Chief Justice of the Ontario Court of Justice may be receptive to a dialogue with LAO representatives.

5.7 Future unfunded tariff increases

If LAO is required to fund the shortfall from its own resources and a budget is tabled, LAO may have to disclose, to external stakeholders, that LAO is compelled to fund the tariff increase through internal savings.

Other matters discussed:

  • The ultimate annual cost of the tariff increase may be less than the original $14 million estimate.
  • The funding source must be due to structural changes, not just in-year savings.
  • MAG may reconsider its position.

5.8 Other matters

The Board discussed:

  • a negative article in the media on LAOs role in a high-profile protocol case
  • slight alterations to the duty counsel reform project to take advantage of AFAs for per diem duty counsel and ensure security of supply
  • meetings with the vast majority of MPPs have proven to be positive; maintaining regular contact with MPPs will become routine in the regions and districts.

5.9 Decision

The Board received the second instalment of the President and CEOs Report.

6. Committee reports

6.1 Audit and Finance Committee

Decision

The Board adopted the minutes of the meeting of the Audit and Finance committee held February 26, 2015.

6.2 2015/16 budget

Decision

The Board approved the 2015/16 operating budget and financial estimates for 2016/17 and 2017/18.

7. Board reports

7.1 Corporate Service Reports

AFAs and Senior Counsel

AFAs account for almost six per cent of total certificates (the original target was 20 per cent). LAO will increase its promotion of the benefits of AFAs to the private bar. Discussions are underway with the Director of Compliance at the Law Society of Upper Canada (LSUC) on the rules about lawyers trust accounts for AFAs.

LAO is considering the possibility of similar contract arrangements on CFSA matters with newly called lawyers, particularly in the north.

Also discussed:

  • the development of discipline policies
  • the acceptance of LAOs senior counsel model within the justice system; judges have responded favourably to the support of senior counsel for the many hard-to-serve clients before the courts
  • the private bar seems reassured that LAO senior counsel are not diverting certificate work.

Decision

The Board received the update.

Discussion on development of LAO staff

The Vice-President and CAO reported that:

  • issues faced by LAO duty counsel have changed dramatically over the past several years
  • staff are seeking feedback from the Board on development of a framework to ensure staff lawyer capacity and high quality of service to clients

The Acting Director, Central Programming and Innovation acknowledged that more work is required to increase the general understanding of what duty counsel do, and addressed the quality of duty counsel service.

Other

The Board discussed the unfunded tariff increase for 2016/17.

Decision

The Board received the report.

7.2 Strategic planning and compliance reports

Professionalism policyoperational process

The Vice-President, Strategic Planning and Compliance, presented this report, noting that, as the Board had requested, the name had changed from civility policy to professionalism policy.

LAOs professionalism policy will be incorporated into the panel management rules. It provides an escalating discipline process when panel members are rude or disrespectful.

Decision

The Board received the professionalism policy operational process.

Panel removal process update

A panel removal policy is in development.

The Vice-President, Strategic Planning and Compliance reported that more lawyers are being removed from panels, possibly due to more vigorous panel management and oversight by both LAO and LSUC.

The following gaps have been identified and need to be formally addressed:

  • a knowledge management system to keep track of problematic lawyers over time
  • clear accountabilities
  • timelines and strategies to meet the above

The Vice-President and General Counsel advised that panel removal is a very formal, judicialized procedure, with safeguards to ensure that lawyers can understand the case against them and make a full answer and defence.

No appeal mechanism is built in, though lawyers could seek a judicial review through the courts. Lawyers who have been removed from the panel may reapply for re-empanelment after a certain period of time.

The Board discussed the possibility of publicly communicating the names and particulars of a panel removal decision. Removal from a legal aid panel differs from a Law Society discipline proceeding, and a public report that does not name names could educate the public.

Decision

The Board received the panel removal process update.

African Canadian Legal Clinic (ACLC) compensation accrual reduction review

The Clinic Committee of Board directed retaining an external auditor to conduct an independent review of the status of the $152,000 compensation time accrual reduction of an employee.

The auditors reviewed all of the pertinent information, including the Dispute Resolution level 3 decision of the Clinic Committee of the Board and supporting material, dated November 17, 2014.

The external and internal audit team are satisfied that the compensation liability was adequately extinguished.

Decision

The Board received the African Canadian Legal Clinic (ACLC) compensation accrual reduction review.

7.3 Policy and external relations reports

Development of LAO public legal information (PLI) strategy

The Vice-President, Policy, Research and External Relations, reported that LAO now has many information delivery options, including:

  • its public legal information website (LawFacts)
  • the family law information program (FLIP)
  • family law information centres (FLICs)
  • family law service centres (FLSCs) and
  • information referral service for duty counsel and summary legal advice (SLA) through the call centre.

To maximize coordination and quality control, staff propose hiring an outside consultant to help develop a coordinated PLI strategy. This strategy would maximize interactive technology, cost-effectiveness and efficiency. It would also address unmet needs for LAOs priority client groups, i.e. Aboriginal peoples, clients with mental health issues, clients with domestic violence issues, etc.

LAO has informed CLEO that it will not be replaced and will be included in the review.

Board members agreed that sufficient resources must be allocated to ensure that the public legal information is always current.

A Request for Proposal (RFP) will be issued shortly. A PLI strategy will be developed over the summer. A draft PLI strategy will be presented to the Board at its meeting in October.

Decision

The Board received the report on development of LAO public legal information strategy.

Open Government, Open Data consultation paper

The Director General, Policy and Strategic Research reported that the justice system and other government sectors generally lack transparency, and that LAO intends to develop and launch a provincial consultation to improve public, stakeholder and client awareness of LAO. LAO is a leader within the justice system in this field.

Decision

The Board received the draft consultation paper, Open Government, Open Data.

Legal research tools

The Vice-President, Policy, Research and External Relations reported that, up to now, LAO has maintained a basic subscription with on-line legal research providers.

MAG is currently negotiating a two-year contract with LexisNexis and Thomson Reuters, for the procurement of online and print services. LAO can participate in this arrangement, at a cost to LAO of approximately $900,000 over two years. An additional investment of approximately $100,000 over two years would be required. One strategy could be to pool all research and reference material budgets into one master LAO legal resource fund.

The MAG contract would expand research resources to more LAO staff, including clinics, and would save money from volume buying and less reliance on printed materials.

Decision

The Board approved the two-year legal research tools contract, should LAO decide to opt in, and delegated, to the President and CEO, signing authority for the purposes of entering into this procurement contract.

7.4 Provincial Case Management Office (PCMO) 2014/15 annual report

The Vice-President, Provincial Case Management Office, presented highlights from this report as follows:

Big Case Management (BCM)

  • The relationship between LAO and private bar lawyers handling BCM cases now seems to be more mutually supportive and interactive.
  • Case costs are contained because the lawyers agree to work within a set budget.
  • The PCMO is working toward restricting BCM cases to only the most experienced.
  • The PCMO will use an intervention approach in case management.

Development of budget prediction tool

  • LAO has developed a tool that can identify the relevant data and predict the average range of costs for a BCM matter.
  • Staff can use this tool to help them identify what a case may entail and what its gaps are, develop constructive conversations between the LAO case manager and counsel of record, set budgets and determine lawyer performance.
  • A similar budget prediction tool is used successfully in the insurance industry to manage claims.
  • In the fiscal year 2014/15, the average reduction in budgets negotiated using this tool went from 35 per cent to 41 per cent.
  • LAO is considering making the program available to other provincial legal aid plans.

The Association in Defence of the Wrongly Convicted (AIDWYC)

LAO has agreed to enter into a funding agreement with the AIDWYC to help it expand its work on behalf of wrongfully convicted clients. This may also provide an educational opportunity for LAO staff and students.

Funding for a new inmate appeals program

Private bar lawyers used to be paid an honorarium for assisting with some inmate appeals. LAO has established a program that ensures a more direct relationship with the Superior Court and Ontario Court of Appeal and provides the judiciary with more confidence that inmate appellants will get needed assistance.

Other highlights

  • PCMOs database and access to enhanced analysis provides critical information such case rates, client outcomes, etc.
  • Remediation in change-of-solicitor applications has generated positive results.
  • Rigorous case management is required for guns and gangs projects, because they are potentially high risk.
  • The private bar appears to be accepting LAOs analysis on pre-trial motions
  • The PCMO has successfully reduced costs with minimal criticism from stakeholders.
  • A number of firms are now working pursuant to an Alternate Fee Arrangement (AFA) contract.
  • The Group Applications and Test Case Committee (GATCC) work is ongoing.

The President and CEO indicated that the successes of the PCMO in these initiatives are an excellent example of change management at its finest within LAO, and demonstrates how relationships with stakeholders can be improved.

The Chair commented that these results satisfy the recommendations in the Code-LeSage Report, particularly with respect to the reduction of frivolous pre-trial motions.

Decision

The Board received the Provincial Case Management Office 2014/15 annual report.

7.5 Performance review of the President and CEO for 2014/15

Board members held an in-camera discussion, in the absence of the President and staff.

Decision

The Board received the evaluation of the President and CEOs performance for the fiscal period ending March 31, 2015, and approved the CEOs performance rating and bonus for the 2014/15 performance year.