Publications & Resources
Archive: Discretion Consultation (May 2012)
Questions and answers
Here are answers to some common questions about Legal Aid Ontario’s discretion consultations and the discretion process. Have a question that you do not see here? Please submit it in the form below.
We will regularly add new questions and answers as we consult with stakeholders.
» Is Legal Aid Ontario (LAO) changing the discretion payments program?
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.
» Aren’t the guidelines on discretion clear enough?
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.
» Why is Legal Aid Ontario holding discretion consultations?
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
» I would like to offer my feedback. How can I be involved in this process?
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.
» What improvements to discretion can the bar expect?
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.
» Will lawyers be paid less money as a result of the changes?
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.
» Is Legal Aid Ontario cutting money spent on discretion?
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.
» When will the changes be effective?
We have not yet set an implementation date. We will do so once we complete discretion consultations and review the feedback we receive on the proposed discretion guidelines. We will notify stakeholders of the implementation date well in advance.
» Is Legal Aid Ontario planning to address tariff inadequacies in the criminal and family bar?
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.
» Will there be any change to how I request discretion?
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
» Will there be any changes to how I request a review of a discretion decision?
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.
» Will these discretion consultations affect complex cases that are costly and usually require discretion?
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.
» What is Legal Aid Ontario doing about lawyers who routinely request discretion on every case?
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.
» How long do discretion decisions currently take?
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.
» On what percentage of certificates is discretion requested?
Discretion is requested on nine and a half per cent of certificates.
» What percentage of certificates are completed within the tariff?
90.5% of certificates are completed within the tariff.
» How much in discretion was paid out in 2010/11?
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
» How many requests for discretion does Legal Aid Ontario receive every year?
Legal Aid Ontario receives 15,000 requests a year. The average cost to review and process a discretion request is $50.
» How many discretion hours do lawyers most frequently request?
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 discretion?
If you cannot find your question about discretion 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 Legal Aid Ontario has posted an answer to your question, please include your email in the form. Legal Aid Ontario reserves the right to withhold questions from publication online.
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