Information for lawyers

Discretionary Increases

Information for Lawyers

Discretion: Questions and answers


If you cannot find your question on this page, please submit it in the form below.


Recent questions


Q: Are there new discretion criteria for other civil certificates, such as CCB and ORB hearings?

A: No. LAO has not implemented new discretion criteria for civil certificate matters. The old criteria and the exceptional circumstances contained in the Regulation continue to apply.


Q: Will the revised and approved guidelines apply only to certificates issued after end of November, 2012 or work done after that date with respect to certificates issued before the end of November?

Will the guidelines apply to all certificates billed on or after the end of November, even if the certificate was issued before the implementation date?

A: The clarified discretion guidelines will apply to all accounts submitted on or after the guidelines go into effect. LAO will clarify the nature of the effective date of the discretion guidelines and ensure this is communicated to the bar


Clarified discretion guidelines


Q: Why did LAO clarify the discretion guidelines?

A: LAO clarified the discretion guidelines to:

  • ensure compliance with the Legal Aid Services Act (LASA) and its regulations – the LASA says that discretion should be paid in “exceptional circumstances.”
  • eliminate confusion and dissatisfaction with discretion – the updated guidelines will:
    • provide the bar with greater clarity about discretion criteria and payments
    • provide LAO staff with sufficient clarity to make consistent decisions
    • open the door to other ways for handling high-discretion areas of law, such as adapting our current case management approach for expensive criminal law cases to mid-level criminal and Children and Family Services Act cases
  • improve oversight of discretion spending – the updated guidelines will help LAO understand who is requesting discretion, how much discretion is being requested and why lawyers are requesting discretion; they will also help manage discretion costs within LAO’s legislated budget

Q. Does this mean lawyers will get paid less?

A: LAO anticipates that some lawyers will receive less in discretionary payments Requests for discretion that meet the exceptional circumstances test and comply with the updated discretion guidelines will be eligible for a discretionary payment. If this test is not met, LAO cannot issue a payment.


Q: Can a lawyer appeal a discretion decision?

A: Yes. The process for appealing the settlement of an account where a lawyer has asked for discretion is the same as before the discretion guidelines were clarified.

Pursuant to s. 46 of O.Reg 106/99, LASA, lawyers who wish to appeal a discretion decision should download and complete the LAO review form. They must set out, in writing, those items to which they object, and their grounds for objecting to those items. Lawyers must submit the form within 60 days of LAO paying the account via Electronic Funds Transfer.


Q: When will the bar receive more information regarding the changes in discretion?

A: LAO will be providing more details regarding the discretion guidelines and new initiatives in September 2012. Information and training sessions will be scheduled prior to implementation.  The training sessions will cover the discretion guidelines, tariff pre-authorizations, and case management.


Discretion consultations


Q: Is Legal Aid Ontario (LAO) changing the discretion payments program?

A: No. LAO is committed to providing lawyers with discretion payments. We are, however, proposing guidelines to make the discretion request process clearer for lawyers.

Clearer guidelines will promote quicker, more consistent decisions on discretion requests, and help ensure fair and effective stewardship of public funds.


Q: Arent the guidelines on discretion clear enough?

A: No. Legal Aid Ontario’s annual survey of lawyers confirms that there is a lack of clarity in why some requests for discretion are denied and others approved. The survey results show that some lawyers feel discretion decisions don’t always seem to relate to their account, and can sometimes contradict decisions in other accounts, creating uncertainty about how to manage a case.


Q: Why is Legal Aid Ontario holding discretion consultations?

A: We are holding these consultations because LAO wants to hear lawyer feedback on the proposed discretion guidelines, which will include:

  • clarifying the definition of “exceptional”
  • outlining the criteria to be used when requesting discretion
  • speeding up payment of discretion accounts

Q: I would like to offer my feedback. How can I be involved in this process?

A: LAO will host province-wide consultations with provincial and local family, criminal and refugee legal associations from May 7 to May 25. Information about the in-person and live-video consultation sessions is on LAO’s registration page.

Lawyers unable to attend a consultation session can still provide their feedback – online.


Q: What improvements to discretion can the bar expect?

A: Clearer discretion guidelines will provide a fairer and more predictable system and ensure more consistent and faster decisions on discretion accounts. In addition, lawyers can expect to better understand how the discretion criteria are applied and when an account is eligible.


Q: Will lawyers be paid less money as a result of the changes?

A: Some lawyers’ discretion accounts may be affected. That said, lawyers complete work on 90 per cent of certificates without discretion. The guidelines will only apply to the 10 per cent of certificates where discretion is requested.


Q: Is Legal Aid Ontario cutting money spent on discretion?

A: No. We will continue to honour requests for discretion that meet the exceptional circumstances requirement. We will also continue to support the component of discretion rolled in to all block fees.

This process will help us ensure that we spend our limited resources effectively in support of clients and access to justice. We anticipate some cost savings as a result of clearer discretion criteria and a tightening of the discretion process.


Q: Is Legal Aid Ontario planning to address tariff inadequacies in the criminal and family bar?

A: Legal Aid Ontario continues to work with the Ministry of the Attorney General to ensure adequate funding for legal aid services.

The hourly rate paid to lawyers who accept legal aid certificates increased by five per cent on April 1, 2012 as part of the Memorandum of Understanding between Legal Aid Ontario, the Ministry of the Attorney General and the Criminal Law Association. The increases to the tariff will continue at a rate of approximately five per cent until April 1, 2015.

Legal Aid Ontario continues to look at the family law tariff to determine how to better support members of the family bar. This includes examining options for using budgets for case management and “double authorizations” where appropriate.


Q: Will there be any change to how I request discretion?

A: No. You will still need to complete the discretion request form on Legal Aid Ontario’s website and attach the form to your Legal Aid Online account. As before, you will need to demonstrate that you have met the test of exceptional circumstances for a discretion payment.

Lawyers who have forgotten to request discretion on an account can seek it retroactively by submitting a discretion form as an attachment to Lawyer Services & Payments through Legal Aid Online. Retroactive requests must be sent within 60 days of the date the funds arrive in your account by electronic funds transfer


Q: Will there be any changes to how I request a review of a discretion decision?

A: No. LAO has only changed how you submit the form as part of an ongoing plan to make it easier for panel lawyers to bill for services rendered. You can now fill in the discretion review form – available on the Legal Aid Ontario website – and submit it as an attachment through Legal Aid Online instead of having to fax or send it by mail.

You must submit requests for a review within 60 days of the date the funds arrive in your account by electronic funds transfer (i.e., the payment of the account); and set out those items in the written reasons to which you object (found on the deposit advice), together with your grounds for objection.


Q: Will these discretion consultations affect complex cases that are costly and usually require discretion?

A: Potentially, yes.

Legal Aid Ontario is exploring the possibility of using case management and budget setting for mid-level criminal and family cases that typically exceed $10,000.


Q: What is Legal Aid Ontario doing about lawyers who routinely request discretion on every case?

A: Legal Aid Ontario has begun to examine the accounts of the top 20 discretion billers to understand why they are unable to complete matters within tariff, particularly in situations where a significant portion of the bar is able to do so.


General


Q: How long do discretion decisions currently take?

A: It usually takes 60 days or more to process discretion decisions, in part due to current administrative guidelines that are subject to interpretation, and volume of requests.


Q: On what percentage of certificates is discretion requested?

A: Discretion is requested on nine and a half per cent of certificates.


Q: What percentage of certificates are completed within the tariff?

A: 90.5% of certificates are completed within the tariff.


Q: How much money has been requested in discretion payments?

A: LAO does not have records related to how much money has been requested through discretionary payments.

Lawyers submit all accounts, including requests for discretion, based on hours to be paid rather than amounts. As lawyers bill according to tier level and as hours billed can include services provided by another lawyer, law clerk or articling student, it is not possible to determine the dollar value of discretion requested from the additional hours submitted.
 

Q: How much has LAO paid in discretion?

A: LAO has been tracking the number of discretion payments issued since June 2009.  Since then, LAO has released the following in discretion payments:

   Fiscal year

Amount

 June 2009 to
 March 2010

$8,712,194.00

 

2010/2011

 

$12,510,873

 
2011/2012

 

$11,595,480









 


Q: How much in discretion was paid out for each area of law in 2010/11?

A: Approximately $12 million of discretion was paid out in 2010/11, including: 

      • $6.5 million on criminal certificates
      • $4.5 million on family
      • $600,000 on refugee certificates
      • $400,000 on civil certificates

Q: How many requests for discretion does Legal Aid Ontario receive every year?

A: The number of requests for discretion LAO has received since 2005/06 are as follows:

Fiscal year

# of discretionary payments requested

2005/06

21841

2006/07

29040

2007/08

28098

2008/09

27579

June 2009 to

 March 2010

27944

2010/2011

 

24990

2011/2012

 

24032

 

Q: How many discretion requests does LAO approve every year?

A: LAO has granted discretion, either fully or in part, for approximately half the discretion requests it receives every year. LAO has been tracking the number of requests approved since June 2009.  Since then, the number of requests LAO has approved, fully or in part, are as follows:
   

Fiscal year

# of requests approved

2005/06

n/a

2006/07

n/a

2007/08

n/a

2008/09

n/a

June 2009 to

 March 2010

9747

2010/2011

 

13082

2011/2012

 

12197

 


Q: How many discretion hours do lawyers most frequently request?

A: Lawyers most frequently request two hours of discretion payment. The median request is 6.5 hours. Twenty-five percent of all discretion request were for less than 3 hours.


Have a question about the discretion quidelines?


If you cannot find an answer to your question about LAO's changes to discretion guidelines on this page, please submit it in the form below. We will try to answer you within two business days.

If you would like to be notified once LAO has posted an answer to your question, please include your email in the form. LAO reserves the right to withhold questions from online publication.


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