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Legal Aid Cuts In Ontario

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36 minutes ago, TrialPrep said:

In BC it's really hard to breakdown the numbers to determine the cost of a clinic lawyer vs certificate (we call certificates contracts here). But it has to be higher than the per hour basis. When you administer an office, in addition to overhead, you have to deal with human resource issues and all the drama that comes along with it. When you hand out certificates, you transfer all that to the hundreds of private offices instead, which should save the government a lot of money.

In many ways the best possible solution for lawyers would be a system where all overhead costs were transmuted into certificate dollars. I think that was the old LAO where clients just went to court, picked up their certificate, then hired someone to help them resolve a theft under or a mischief. The $100,000 spent on renting some unit becomes 80 certificates and $100,000 in a lawyer's pocket. Imagine $100 million more dollars flowing into the private bar.

In the clinic context, I get that having a dedicated place to go where people will empathize with you and understand your problems is a great thing. My point is only that we might've hit the fork in the road where the person you're going to see in a clinic is a lawyer. And HR can be administered from a central hub.

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22 minutes ago, KingLouis said:

In many ways the best possible solution for lawyers would be a system where all overhead costs were transmuted into certificate dollars. I think that was the old LAO where clients just went to court, picked up their certificate, then hired someone to help them resolve a theft under or a mischief. The $100,000 spent on renting some unit becomes 80 certificates and $100,000 in a lawyer's pocket. Imagine $100 million more dollars flowing into the private bar.

In the clinic context, I get that having a dedicated place to go where people will empathize with you and understand your problems is a great thing. My point is only that we might've hit the fork in the road where the person you're going to see in a clinic is a lawyer. And HR can be administered from a central hub.

I'm not sure HR can be administered from a central hub. Lawyers get into all kinds of disputes such as whose office has nicer windows, why my parking spot is smaller, and which assistant started here first. That can only be resolved with a gentle hand at the helm. 

Follow this out. If you have one HR style for all the clinic offices and it turns toxic, there's no where to go. However, if you have hundreds of private offices each administered differently and one turns toxic, people will just leave that office and go to a more well managed office. The distribution of HR is therefore preferable. 

Edited by TrialPrep

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53 minutes ago, TrialPrep said:

I'm not sure HR can be administered from a central hub. Lawyers get into all kinds of disputes such as whose office has nicer windows, why my parking spot is smaller, and which assistant started here first. That can only be resolved with a gentle hand at the helm. 

Follow this out. If you have one HR style for all the clinic offices and it turns toxic, there's no where to go. However, if you have hundreds of private offices each administered differently and one turns toxic, people will just leave that office and go to a more well managed office. The distribution of HR is therefore preferable. 

Yes. The communities have a fair bit of ownership and say in their own clinics - witness the rebirth of ACLC as BLAC. There is a lot of community involvement in how that clinic is run. Central management would take those clinics out of the neighbourhoods and communities where they are located. 

I don’t think certificates are the best approach for everything. Some certificates do not pay out that well, so some lawyers will not be willing to spend that much time on an individual matter. A clinic with people on salary can give matters the time and attention that they deserve. 

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1 hour ago, providence said:

Some certificates do not pay out that well, so some lawyers will not be willing to spend that much time on an individual matter. A clinic with people on salary can give matters the time and attention that they deserve. 

We've gone back on forth on other threads, but I value your opinion: what do you think is the answer here? A week ago we were living in a world where A2J was improving. In my mind, it was improving. Now there's a $50 million hole in the budget. Maybe that number's walked back. Maybe the federal government intervenes. But if that hole remains, what do you think happens?

I can't educate myself on the history of LAO and its contractual agreements in 3 days--though I've tried.

From 2013 to 2015, tariffs rose about 15% after the MOU w/ the CLA. If you walk them back by 15% and ask LAO staff to take a 15% hardship cutback in compensation, you get your $50 million. Services don't get cut. The system keeps functioning.

Do you think that's even a possibility?

Because the only alternative I can see is an axe to the clinic system, walking back its funding levels to 2013.

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3 hours ago, KingLouis said:

We've gone back on forth on other threads, but I value your opinion: what do you think is the answer here? A week ago we were living in a world where A2J was improving. In my mind, it was improving. Now there's a $50 million hole in the budget. Maybe that number's walked back. Maybe the federal government intervenes. But if that hole remains, what do you think happens?

I can't educate myself on the history of LAO and its contractual agreements in 3 days--though I've tried.

From 2013 to 2015, tariffs rose about 15% after the MOU w/ the CLA. If you walk them back by 15% and ask LAO staff to take a 15% hardship cutback in compensation, you get your $50 million. Services don't get cut. The system keeps functioning.

Do you think that's even a possibility?

Because the only alternative I can see is an axe to the clinic system, walking back its funding levels to 2013.

I guess the easiest and (comparatively) least painful ways for Legal Aid to save money are to do any or all of:

-slightly reduce the eligibility threshold, so do all the same work but with a maximum income that is 3 or 4k lower

-cut back on coverage for certain (comparatively) less critical matters ie. summary conviction appeals, certain family motions, etc.

-slightly reduce the tariffs

As problematic as each of those could be, I think it is preferable to axing clinics. Everyone takes a small hit for the team as opposed to losing the wider benefits of clinics.

 

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I wonder if the CCLA (or another similar organization) would challenge the funding cut using some combination/separate argument under the unconstitutionality of the action, based on Trial Lawyers, and/or Guerin?

It's a long shot obviously. And it may not be an ideal test case for getting the courts to find and enforce a positive obligation through charter rights, but this cut is pretty drastic. Depending on how legal aid responds to the cuts it may be "substantial" enough to warrant the claim.

Edited by pzabbythesecond

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8 hours ago, Diplock said:

I have complex feelings on this subject. And to lay my cards on the table, I'm strongly in favor of certificates. But right now I just want to call out the claim, a little bit, that the Duty Counsel roster somehow "serves" all unrepresented criminal and family law clients in the province. Duty Counsel doesn't see more than a fraction of these matters to any kind of conclusion, or serve these clients in more that a cursory manner. Very often they are just helping people to adjourn things until someone takes over more substantially, or doing what they can for a client pleading guilty without ever seriously exploring what, if any, defences that client is giving up on. 

I don't fault DC for the role they play. They do what they can within that role - and many do it quite well. But it's grossly inaccurate to compare what it costs DC to "serve" each client vs what it costs a clinic, or private Counsel, simple because DC isn't doing the same job. They aren't retained. They have no ongoing duty to the individual before the court. They simply don't do the same job. In this apples to oranges comparison, you might as well compare what it costs to provide drop-in space for a homeless person vs a bed at a shelter. No one would suggest the drop-in isn't important. But it's not actually a place to sleep. 

 

7 hours ago, KingLouis said:

Well, it's exactly that--they do what they can within that role. Extracting or comparing the value of that service is a difficult proposition, but there are examples that produce similar outcomes. So you can kind of compare the value. For example, a DC client wants to plead guilty to a low-end assault. No cert because it's non-custodial or they make slightly too much $. They're adamant they don't want a trial. DC negotiates some kind of discharge and resolves the matter. They might not have covered all of the potential defenses. Maybe that charge would've been a Peace Bond with private counsel. But maybe it would've been a conditional discharge, too. Same applies in family court where a client really wants to negotiate a consent letting them have access over March Break. DC makes that deal and the Order is granted. I'm just saying some things have a similar value to LAO--which would view a DC plea as more cost-effective than a counsel plea.

If 25 people come to court and 15 ask DC to adjourn them 3 weeks so they can hire a private lawyer, that's where I accept that there's no comparison re: the value of that service with the value provided by the certificate lawyer they eventually retain. But someone has to speak to the 10 other clients who might know nothing about the system and need things explained. Or the ones who are in custody and know nothing about their charges or the Crown's position. Plenty of good ones, too, pore over the disclosure to issue spot.

I know we're not arguing about this, so I'll end it there. I get that "value" is a difficult thing to identify.

 

Duty counsel do serve unrepresented clients. Sure, for some of them, "serving" means advising them to retain counsel and adjourning the matter. But lots of matters can actually be resolved on the docket. It is DC's role to triage and determine which is which. Some clients don't need to retain counsel, set a trial and run a defence, and it is a benefit to the system that they are cleared off the docket expeditiously, often with a stay, peace bond, discharge, diversion, suspended sentence etc. (in the criminal context only - I know there are also DC in the family courts.) Some of those people wouldn't have qualified for Legal Aid and, left to their own devices, would have accepted a fine when they could get a stay, suspended sentence with probation when they could get a conditional discharge, etc.

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2 hours ago, providence said:

I guess the easiest and (comparatively) least painful ways for Legal Aid to save money are to do any or all of:

-slightly reduce the eligibility threshold, so do all the same work but with a maximum income that is 3 or 4k lower

-cut back on coverage for certain (comparatively) less critical matters ie. summary conviction appeals, certain family motions, etc.

-slightly reduce the tariffs

As problematic as each of those could be, I think it is preferable to axing clinics. Everyone takes a small hit for the team as opposed to losing the wider benefits of clinics.

 

Hm. A 10% drop across the board probably gets them to where they need to be. You can probably say that about salaries, certs, eligibility, and clinic funding. And 10% drops aren't catastrophic--the lights would stay on. I can see the wisdom in all players sharing the pain vs. localizing it in a certain branch of the organization. Field seems like the kind of guy, too, who would prefer that compromise over closing offices and shuttering services.

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2 hours ago, pzabbythesecond said:

I wonder if the CCLA (or another similar organization) would challenge the funding cut using some combination/separate argument under the unconstitutionality of the action, based on Trial Lawyers, and/or Guerin?

It's a long shot obviously. And it may not be an ideal test case for getting the courts to find and enforce a positive obligation through charter rights, but this cut is pretty drastic. Depending on how legal aid responds to the cuts it may be "substantial" enough to warrant the claim.

It wouldn't even have to be the CLA. I would try it--depending on the response. File that kind of application, post it on the CLA listserv, and 200 other lawyers are probably sending you DMs asking how they can help.

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The cuts put the LAO budget at essentially its 2015-16 levels. You’ve got to imagine that there’s essentially zero chance a court would find that to be an unconstitutional level of funding, particularly since it would likely ripple out to other provinces with lower legal aid budgets per capita (BC, for instance).

There might be a chance WRT to the immigration cuts. But I think any hope that the courts are going to find that a budget amounting to a budget freeze for three years, that still provides more funding per capita than several other provinces, is unconstitutional is a huge long shot. 

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7 hours ago, KingLouis said:

Hm. A 10% drop across the board probably gets them to where they need to be. You can probably say that about salaries, certs, eligibility, and clinic funding. And 10% drops aren't catastrophic--the lights would stay on. I can see the wisdom in all players sharing the pain vs. localizing it in a certain branch of the organization. Field seems like the kind of guy, too, who would prefer that compromise over closing offices and shuttering services.

 

7 hours ago, KingLouis said:

It wouldn't even have to be the CLA. I would try it--depending on the response. File that kind of application, post it on the CLA listserv, and 200 other lawyers are probably sending you DMs asking how they can help.

Given that it will likely hurt a bit but not be catastrophic, I’m not sure lawyers will want to give up more billable time to make a Charter motion with a low probability of success. 

If lawyers are going to do anything, job action has been successful in the past. 

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I know this is not part of the Legal Aid budget, but it looks like the Criminal Injuries Compensation Board is being scrapped.  In turn, this could foreshadow that the cuts in the Legal Aid budget is going to come primarily from the clinic system (clinics are usually involved in CICB appeals)

https://www.cbc.ca/news/canada/toronto/doug-ford-ontario-crime-victim-compensation-1.5095827

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1 hour ago, toby is the worst said:

I know this is not part of the Legal Aid budget, but it looks like the Criminal Injuries Compensation Board is being scrapped.  In turn, this could foreshadow that the cuts in the Legal Aid budget is going to come primarily from the clinic system (clinics are usually involved in CICB appeals)

https://www.cbc.ca/news/canada/toronto/doug-ford-ontario-crime-victim-compensation-1.5095827

Indeed, the clinic I was at had a full-time senior CLW who only did CICB files. 

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Clinics are generally an easy target. I hear constant complaining about them in that people feel that they consume resources disproportionate to every other part of the system, so my guess is that they will be the first thing to cut, as doing so affects less employees and staff than if they monkey with the tariffs and affect everyone. And many private bar lawyers may even support that move. I agree this is short-sighted however as clinics make incredibly important contributions to the law. 

Lawyers in my province are terrified that our government will learn from this and make similar cuts. We're following this very closely. 

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21 hours ago, Diplock said:

I have complex feelings on this subject. And to lay my cards on the table, I'm strongly in favor of certificates. But right now I just want to call out the claim, a little bit, that the Duty Counsel roster somehow "serves" all unrepresented criminal and family law clients in the province. Duty Counsel doesn't see more than a fraction of these matters to any kind of conclusion, or serve these clients in more that a cursory manner. Very often they are just helping people to adjourn things until someone takes over more substantially, or doing what they can for a client pleading guilty without ever seriously exploring what, if any, defences that client is giving up on. 

I don't fault DC for the role they play. They do what they can within that role - and many do it quite well. But it's grossly inaccurate to compare what it costs DC to "serve" each client vs what it costs a clinic, or private Counsel, simple because DC isn't doing the same job. They aren't retained. They have no ongoing duty to the individual before the court. They simply don't do the same job. In this apples to oranges comparison, you might as well compare what it costs to provide drop-in space for a homeless person vs a bed at a shelter. No one would suggest the drop-in isn't important. But it's not actually a place to sleep. 

I've done a fair bit of contract DC work, as well as certificate work, a lot of it on rural and remote circuits. DC are not supposed to do the same things as counsel who are retained, nor are they necessarily supposed to see most matters to conclusion. It may depend on where in the country you are, and this is not in ON, but I have had times where I have been able to assist almost all the unrepresented people in court on a particular day in bringing their matters to finality and to what I believed was their satisfaction. Other times, there are a lot of adjournments. It will depend. DC also assist people who wouldn't qualify for Legal Aid in some cases. I also don't think a cost comparison is possible between DC and clinics or private counsel, because the jobs are different, but the system would collapse without DC and they are extremely necessary, especially outside the city. There are also times when DC are more efficient than a certificate. 

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On 4/14/2019 at 11:20 PM, providence said:

I guess the easiest and (comparatively) least painful ways for Legal Aid to save money are to do any or all of:

-slightly reduce the eligibility threshold, so do all the same work but with a maximum income that is 3 or 4k lower

-cut back on coverage for certain (comparatively) less critical matters ie. summary conviction appeals, certain family motions, etc.

-slightly reduce the tariffs

As problematic as each of those could be, I think it is preferable to axing clinics. Everyone takes a small hit for the team as opposed to losing the wider benefits of clinics.

 

Or maybe the Crown should be more circumspect in how they proceed with prosecutions? RPC and public interest is sometimes forgotten.

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