Case Management

Questions and answers

Listed below are some of the questions we've received regarding case management. If your question is not addressed by the answers below, or if you need further information, please contact is via info@lao.on.ca.

Qs & As for case management

Q: What is case management?

As the bar may be aware, LAO already has an existing Big Case Management (BCM) program for criminal matters where costs are likely to exceed $20,000 (for non-homicide cases) or $30,000 (for homicide cases).

The two case management initiatives that LAO is piloting, effective Nov. 26, are for less expensive cases:

  • The mid-level case management program is for a certain limited number of criminal charges, where costs are greater than $8,000 but likely under the BCM threshold. All criminal matters will be streamed to case management for assessment and management.
  • The case management program for family law cases is for those cases where costs are expected to exceed $8,000. It will initially focus on case managing Crown wardship matters.

These programs will allow lawyers, in collaboration with a LAO case manager, to set budgets in costly, complex cases likely to cost $8,000 or more. Creating a budget ensures more cost certainty for lawyers and ensures that they have the resources necessary to deliver quality services. Case management also provides LAO with greater control over the costs of complex proceedings.

Q: Why did LAO initiate these programs?

LAO decided to initiate the case management programs in response to the feedback received from the bar during province-wide discretion consultations in May 2012.

Ontarios lawyers and legal associations expressed their concerns about predictability and cost certainty in complex, costly matters, the impact of the clarified discretion guidelines which focus on exceptional circumstances only the adequacy of the tariff, billing and payment processes and the timeliness of payments.

The case management programs address these concerns, as they provide criminal and family panel lawyers with the support of a case manager and a budget.

Q: What are the benefits of case management?

Case management will help LAO meet its mandate to ensure cost-effective, efficient, high-quality legal services, comply with the requirements of the Legal Aid Services Act regarding discretionary payments, gain greater certainty and control over case costs, and simplify billing and payment processes.

It also will create cost certainty and predictability, and ensure that lawyers working on complex cases receive the resources they need.

Q: How does case management work?

LAOs case managers work with counsel and set budgets by adding additional blocks of hours to a certificate. Lawyers receive payment for their hours within 21-25 days, providing there are no billing errors. Where appropriate, the case manager will suggest cost-effective alternatives.

We hope that as lawyers and case managers work together, they will be able to identify other tariff gaps and make further cost-effective improvements for clients and lawyers.

Q: What is the LAOs eligibility criteria for case management?

For criminal matters, the eligibility criteria for mid-level case management is as follows:

  • the case is likely to exceed $8,000 AND is less than $30,000 (the threshold for Big Case Management homicide) or less than $20,000 (the threshold for Big Case Management non-homicide)
  • the service provider has or is likely to use the maximum hours available on the tariff authorization
  • the case contains at least one of the identified case management charges
  • a preliminary hearing or trial date has been set
  • counsel agrees to the case management terms and conditions

For family law matters, the eligibility criteria for case management are:

  • the case is likely to exceed $8,000
  • the case is a Child and Family Service Act Crown (CFSA) wardship matter (LAO will consider adding other matters)
  • a settlement conference has been held
  • counsel agrees to the case management terms and conditions

Q: What charges are included in the mid-level case management program for criminal cases?

LAO proposes the following charges as a start.

For centralized (Big Case Management unit) case management:

  • Homicides
    • CRIM326: Murder
    • CRIM317: Manslaughter
    • CRIM170: Dangerous driving causing death
    • CRIM268: Impaired driving causing death
    • CRIM112: Conspiracy to commit murder
    • CRIM165: Criminal negligence causing death
    • CRIM585: Manslaughter (firearm)
    • CRIM584: Criminal negligence causing death
    • CRIM159: Counselling to commit murder
  • Indictable 2 appeals

For district case management:

  • Non-homicide extremely serious criminal matters (ESM)
    • CRIM584: Criminal negligence causing death (firearm)
    • CRIM593: Extortion (firearm)
    • CRIM586: Attempt murder (firearm)
    • CRIM587: Causing bodily harm with intent (firearm)
    • CRIM588: Sexual assault (firearm)
    • CRIM589: Aggravated sexual assault (firearm)
    • CRIM590: Kidnapping (firearm)
    • CRIM591: Hostage-taking (firearm)
    • CRIM592: Robbery (firearm)
  • Non-ESM: Sexual assault includes attempts, sexual interference, etc.

Q: What is the process for the case management program for family cases?

The process is as follows:

  • the direction this case may be case managed will appear on a certificate which covers a charge eligible for case management and for family cases, for Crown Wardship under CFSA.
  • where costs are likely to exceed $8,000, counsel will complete a case management assessment form and forward it to LAO
  • a LAO case manager will review the assessment form, contact counsel to discuss the case and set the budget if indicated
  • case management authorizations (blocks of hours) will be added to the certificate
  • once counsel completes the work, he or she will submit the account for payment
  • LAO will pay within 21-25 days if the account is within budget and does not breach any billing rules (e.g., is not late-billed)

Q: How is the budget set out for cases under this program?

LAO has set the budget based on existing tariff authorizations plus:

  • for eligible criminal cases: 10, 25, 50, 75, 100 or 150 additional case management hours added to the certificate
  • for eligible family law cases: 5, 10, 15 or 20 additional case management hours added to the certificate

Lawyers will determine an interim or final budget in consultation with an LAO case manager. If the budget is final, it can only be amended in exceptional circumstances and will rarely be amended retroactively. Counsel must request an increase to a budget before spending the money.

No discretion is available on case-managed files.

Q: For criminal matters, what factors are considered in deciding the amount of case management hours to include in a budget?

LAO considers:

  • the length of the proceeding
  • the charge(s) and the preparation hours provided under the tariff
  • the merits of the proposed pre-trial motions
  • novel legal issues e.g., constitutional challenges to legislation, expansion of common law defences
  • the nature of forensic and expert evidence e.g., novel forensic evidence that may be challenged at trial by either defence or the Crown
  • clients with special needs e.g., mental health issues, serious non-criminal law consequences if convicted
  • disclosure e.g., complexity, volume, etc.
  • crown litigation strategy e.g., prosecution acting unreasonably
  • extended sentencing hearing e.g., matter resolved but detailed Gardiner hearing required
  • the historical billing pattern of the service provider e.g., regularly exceeds the tariff and requests discretion

Q: How is the budget set for eligible family law matters?

The budget will consist of tariff and case management blocks of hours. Below are charts which summarize the proposed family tariff in CFSA Crown wardship matters and proposed guidelines for case management blocks of hours. Such certainty will help case managers set budgets and meet counsel expectations.

Child and Family Service Act Crown wardship tariff

Type of case Description Base time(hours) Court day increase Hours in court
CFSA04 CFSA base 22 n/a n/a
FA021 All subsequent pre-trials 0 2 hours daily Time spent
FAO44 Status review (other) 6 n/a n/a
FAO## Status review (Society-Crown) 6 n/a n/a
FAO45 Trial authorized 18 4 hours daily Time spent
FAO48 Motion for summary judgement 8 n/a Time spent

Child and Family Service Act Crown wardship case management authorizations for pre-trial preparation

Description Hours
Disclosure exceeds the norm; tariff allocation is inadequate 5 to 10
Procedural pre-trial motion (initiating or responding): complex, e.g., added party, reserve band involved 5, including court time
Substantive pre-trial motion (initiating or responding): complex, e.g. increasing access 5, plus court time

Child and Family Service Act Crown wardship case management authorizations for trial preparation

Description Hours
Complex medical evidence, experts 10 to 15
Parenting capacity assessment 10
Trial by affidavit 10

Q: When will these changes become effective?

LAO proposes to make these changes effective on certificates issued on or after Nov. 26.

Q: Can case-managed budgets be increased?

Yes, case managed budgets can be increased. Counsel who accept a final budget, however, is in effect waiving the right to further increases. Final budgets can be amended only in exceptional circumstances which were unforeseen or beyond counsels control. Once counsel acknowledges a certificate and receives a retainer in the form of a budget, the terms of the certificate and retainer apply. Counsel would be considered in breach of the retainer if she/he refuses to provide service on the certificate unless LAO guarantees payment above the budgeted amount.

Q: When will LAO consider increasing a case-managed budget?

Interim budgets can and often will be amended. While counsel is advised to request a budget increase prior to incurring the cost, not every budget increase request by counsel will be granted.

LAO will consider increasing a final budget providing counsel notifies LAO in a timely way prior to incurring the cost and if the cost could not have reasonably been foreseen when the budget was finalized. LAO will also amend budgets retroactively, after the cost has been incurred, in unforeseen circumstances or where the matter is outside of counsels control (for example, by order of a judge).

LAO may decide against increasing the budget if, in LAOs view, the increase is not justified based on factors such as a client of modest means.

Q: Can a lawyer who is working within a case-managed budget request removal as solicitor of record?

In general, no. LAO will only allow a change of solicitor under exceptional circumstances.

Lawyers who are working on a legal aid certificate who wish to be removed as solicitor of record are bound by certain terms and conditions. These terms and conditions require them to make a reasonable effort to discuss this request with their LAO case manager before applying for removal from the record.

This prior discussion is an opportunity for LAO to respond to counsels concerns. It is also meets LAOs commitment to maintain client service and keep cases progressing through the court process. It is among many LAO mechanisms for managing issues related to individual client files as well as to systemic, ongoing improvement and evaluation.

LAO will, if necessary, attend at court to provide the judge with information that may help him or her decide whether or not the court will grant counsels request for removal on the basis of the retainer.

That said, if LAO does approve a change, it will try to provide the client with a list of other available panel lawyers. if LAO does not approve a change, it will endeavour to help the lawyer and client repair their relationship.

Qs & A for the judiciary

Q. LAO has been case managing criminal files and some family files for some time. How does this case management initiative differ?

LAOs existing Big Case Management (BCM) program is for criminal matters where costs are likely to exceed $20,000 (for non-homicide cases) or $30,000 (for homicide cases). Counsel provides a detailed budget submission, and LAO reviews the lawyers accounts before paying them.

The two case management initiatives that LAO is piloting, effective Nov. 26, are for less expensive cases:

  • The mid-level case management program is for a certain limited number of criminal charges, where costs are greater than $8,000 but likely under the BCM threshold. All criminal matters will be streamed to case management for assessment and management.
  • The case management program for family law cases is for those cases where costs are expected to exceed $8,000. It will initially focus on case managing Crown wardship matters.

As part of this new case management initiative, LAOs case managers will work with counsel and set budgets by adding additional blocks of hours to a certificate. Lawyers will receive payment for their hours within 21-25 days, providing there are no billing errors.

Q. Why are some counsel requesting that they be removed from the record for certain cases on the basis that the legal aid retainer is inadequate?

LAO is governed by legislation that provides a specific hourly tariff for particular family and criminal proceedings. Some counsel may suggest to the judiciary, that this authorized amount can be inadequate for certain costly, complex cases.

Q. What, if anything, is LAO doing to address this concern?

LAOs position is that counsel who choose to join an LAO panel and choose to work for clients who come to them with a legal aid certificate also agree to certain other matters. There is no conditional acceptance of a certificate. Once lawyers acknowledge a certificate, they agree to work within the tariff and to comply with LAOs other policies and procedures.

Furthermore, lawyers who are working on a legal aid certificate who wish to be removed as solicitor of record are bound by certain terms and conditions. These terms and conditions require them to make a reasonable effort to discuss this request with their LAO case manager before applying for removal from the record.

This prior discussion is an opportunity for LAO to respond to counsels concerns. It is also meets LAOs commitment to maintain client service and keep cases progressing through the court process. It is among many LAO mechanisms for managing issues related to individual client files as well as to systemic, ongoing improvement and evaluation.

LAO will only allow a change of solicitor under exceptional circumstances. If LAO does approve a change, it will try to provide the client with a list of other available panel lawyers. And if LAO does not approve a change, it will endeavour to help the lawyer and client repair their relationship.

LAO will, if necessary, attend at court to provide the judge with information that may help him or her decide whether or not the court will grant counsels request for removal on the basis of the retainer.

Q. Can case-managed budgets be increased?

Yes, case managed budgets can be increased. Counsel who accept a final budget, however, is in effect waiving the right to further increases. Final budgets can be amended only in exceptional circumstances which were unforeseen or beyond counsels control Once counsel acknowledges a certificate and receives a retainer in the form of a budget, the terms of the certificate and retainer apply. Counsel would be considered in breach of the retainer if she/he refuses to provide service on the certificate unless LAO guarantees payment above the budgeted amount.

Q. When will LAO consider increasing a case-managed budget?

Interim budgets can and often will be amended. While counsel is advised to request a budget increase prior to incurring the cost, not every budget increase request by counsel will be granted.

LAO will consider increasing a final budget providing counsel notifies LAO in a timely way prior to incurring the cost and if the cost could not have reasonably been foreseen when the budget was finalized. LAO will also amend budgets retroactively, after the cost has been incurred, in unforeseen circumstances or where the matter is outside of counsels control (for example, by order of a judge).

LAO may decide against increasing the budget if, in LAOs view, the increase is not justified based on factors such as a client of modest means.