Public proceedings of the Board
Meeting of the Board of Directors on April 4, 2014
Board members present
John McCamus (Chair); Nancy Cooper; John Liston; James McNee; Derry Millar; Robert W. Ward (CEO/Ex Officio)
David Field; Kirsti Mathers-McHenry; Sue McCaffrey; David McKillop; Stephanie Mealing; Michelle Séguin; Rod Strain
1. Meeting agenda
The meeting agenda was adopted.
2. Disclosure of conflict of interest
No conflicts of interest were identified.
3. Board of Directors’ meetings
3.1 Proactive disclosure
The Board discussed the absence of public disclosure of up-to-date Board proceedings. The Vice-President and General Counsel will ensure current disclosure on LAO’s public website.
The President and CEO reported that the public version of LAO’s business plan is with the Ministry. Once approved, it will be posted on the external website.
The minutes of the board meetings held February 6 and 7, 2014 were adopted.
4. Chair’s report
The Chair reported as follows:
4.1 LAO LAW legal memoranda
The Chair received a letter from the Chief Judge of the Provincial Court of Alberta, requesting access to LAO LAW legal memoranda for Alberta provincial judges.
As LAO LAW is essentially defence-oriented research, defence lawyers in other jurisdictions, including Alberta, already can access the LAO LAW website, for a fee. It should not be made available for any other purpose.
The Board directed that the request by the Chief Judge of Alberta for access to LAO LAW legal memoranda be denied.
4.3 Appointment of Nishnawbe-Aski Legal Services Corporation area director
The Board approved the appointment of Mary Bird as the Area Director for Nishnawbe-Aski Legal Services Corporation, pursuant to section 22(3) of the Legal Aid Services Act, 1998.
4.4 Governance training for board appointees
On March 24, 2014, Board members James McNee and John Liston attended a pilot meeting on governance training for board appointees. They reported that there are 4,000 provincial appointees, spread over 200 agencies, boards and commissions. The training initiative was developed to promote better understanding of appointees’ responsibilities as public servants, and will be mandatory for all provincial appointees. LAO was identified as a best practice model in risk management.
Board members suggested that future meetings include MAG representatives, and discuss the role of the LAO Board and its independence from the ministry.
4.5 Board retreat and strategic planning session
Board members James McNee, Nancy Cooper and Michelle Haigh have volunteered to participate in the planning of a spring board retreat and strategic planning session. It will take place in conjunction with the June Board of Directors’ meeting, and take place off-site.
Potential agenda items include inviting a representative to comment on trends and issues within the Ontario government, interacting with individuals in other public service agencies on issues of common concern, and looking at the delivery of legal aid services in other jurisdictions.
- attended the annual Justice Sector Francophone Stakeholders’ Meeting and Reception.
- along with the Vice-President, Policy, Research and External Relations, gave a presentation to Chief Justice Bonkalo and two Associate Chief Justices of the Ontario Court of Justice; the Vice-President, Policy, Research and External Relations, will draft a response to questions raised
- attended an Access to Justice fundraising event at the Law Society.
4.7 Board Advisory Committees
Three of eight Advisory Committee meetings have taken place (Immigration and Refugee; Family Law; and French Language Services). The family law bar is pleased with the new Independent Legal Advice certificates.
4.8 Proactive disclosure
The Chair had no expenses to report between February 7 and the present.
5. President & CEO report (second instalment)
The President & CEO reported as follows:
5.1 MAG/LAO Memorandum of Understanding (MOU)
After recent negotiations with MAG, the remaining contentious issues in the draft MOU were resolved. LAO may explore how to more effectively connect with other ministry divisions about matters of mutual interest.
5.2 Allocation of new funding
A percentage of any new funding from MAG is allocated to administration. But staff recommend that it is not necessary to retain the clinic portion of administration costs for the $30 million dollars in new funding, as that infrastructure is already in place.
The administration costs allocation will be necessary for family law.
5.3 Association of Community Legal Clinics of Ontario (ACLCO) request for a transformation resource
The ACLCO has applied to LAO to fund a coordinator position to help with clinic transformation. The application will be denied because it does not meet the criterion of increased client service. Clinics in transition will be referred to the existing clinic coordinating committee and to the clinic transformation special adviser for information and assistance.
Due to a general concern about funding lobby groups per se, the Board discussed circumstances under which LAO would fund external stakeholder group activities, i.e. joint mentoring programs, direct client service initiatives, etc.
The Friends of Community Legal Clinics recently sent the Chair a letter, encouraging LAO to work collaboratively with the ACLCO in clinic transformation.
5.4 Litigation report
The Vice-President and General Counsel presented highlights from the Litigation Report, including cases under the category, Litigation against LAO.
A Board member requested clarification on the status of the recommendation to impose a level three remedial response under the Dispute Resolution Policy on a community legal clinic. The President and CEO indicated that the report will be served on the clinic today and that the Clinic Committee of the Board will schedule a hearing within 60 days.
5.5 Court transcription fees
In response to a Board member request for clarification of the MAG-led court reporting and transcription project, the President reported that the courts’ use of staff transcribers will be eliminated. Court proceedings will be digitized and made available by an independent service provider. This initiative allows parties to contract with their own transcribers, which should have positive financial implications.
The Board received the second instalment of the President and CEO’s Report.
6. Committee reports
6.1 Audit and Finance Committee
Recommendations—2014/15 operating and capital budget
The Vice-President and CAO presented the 2014/15 operating and capital budget. As previously indicated, since the presentation of the budget to the Audit and Finance Committee, the Ministry of the Attorney General (MAG) has confirmed that it would reinstate the $3 million reduction from last year’s transfer payment. This will reduce the projected deficit from $8 million to $5 million. The year-end deficit will approach $0 through other in-year savings.
The federal government will continue refugee funding for the next three years.
The overall legal aid funding allocation from Ontario has yet to be determined, but is predicted to closely correspond with the amount budgeted.
The 2014/15 budget reflects an estimated 85,000 certificates.
LAO plans to add capacity by hiring additional staff duty counsel and senior criminal counsel in the regions, and hiring back articling students to be deployed throughout the organization.
The Board discussed the reasons for the different levels of dissatisfaction among the criminal and family law bars.
One Board member observed that, in her experience, Legal Aid per diem duty counsel are overburdened and under-managed in some areas. In such circumstances, clients may be underserved.
The Board discussed the correlation between the number of certificate applications, the acceptance and refusal rate, and the mandatory duty counsel referral for certificate application.
The Board Chair remarked that an evaluation could be undertaken to determine the level of Gladue services currently being provided by duty counsel.
The President and CEO reported that:
- LAO is expanding the staff duty counsel program, which will allow for additional time and opportunities to train duty counsel in their duties to their clients as well as in their roles and responsibilities as public servants in the employ of LAO
- alternative fee arrangements (AFAs) may create a new platform for lawyer training, i.e. a mentoring obligation could be included in AFA contracts
- certificate refusal does not necessarily mean service refusal; the client would be directed to an appropriate alternative service
- LAO is increasing services to address gaps that have been identified in certain areas
- the issue of providing services to those who risk a “loss of livelihood” may be reconsidered.
- general statistics are available on client services delivered by duty counsel, including guilty pleas, withdrawals, diversions, etc.
- survey results indicate that client satisfaction levels appear to be higher with duty counsel than with the private bar
- a briefing note will be presented to the Board on the next phase in the evolution of the duty counsel program; this initiative will encompass a change in designation from duty counsel to a title such as LAO counsel, and that training will be a critical component going forward.
The Board approved the 2014/15 draft operating budget and financial estimates 2015/16 and 2016/17.
6.3 Q3 risk report
The Vice-President, Strategic Planning and Compliance, presented the Risk Management Update. There are three new sections:
- Organizational health, comprised of financial, staff health, client service and stakeholder factors
- Project risks related to the implementation of the business plan (such as including any increased sick days and potential shortage of work space)
- Bottom-up risk assessment by staff.
The Board discussed the concerns expressed by the clinic union representatives with respect to mergers and their impact on union members and clinic employees generally.
The Board received the Q3 risk management update.
6.5 Minutes of Audit and Finance Committee meeting
The Board adopted the minutes of the Audit and Finance Committee meeting held on February 26, 2014.
7. Board reports
7.1 Policy and External Relations reports
Paralegal project status update
The Vice-President, Policy, Research and External Relations reported on LAO’s corporate decision to become a leader in the use of paralegals and move away from exclusive reliance on lawyers to provide client services. LAO proposes to form teams comprised of lawyers, paralegals and other staff, to provide high-quality service in a cost-effective manner. Some of the objectives in the original paralegal project have been abandoned as the project has evolved.
The Director, Corporate Services and Strategic Planning Initiatives provided an update, which the Board approved, on the paralegal project’s strategic direction. While there have been challenges and barriers, LAO has made great progress in integrating paralegals into LAO’s service delivery models.
While LAO is piloting projects with individual community colleges to familiarize paralegal students with the unique demands of legal aid work, gaps in training and shortages in the supply of available paralegals have persuaded LAO to take a more aggressive role. LAO will launch a province-wide training program with all colleges in the coming year, instead of working with only a few paralegal colleges.
A paralegal program is currently underway in LAO’s refugee law area, and LAO will make a paralegal engagement proposal to a number of community legal clinics.
The Board discussed:
- the risks, including stakeholder concerns, such as those expressed by the private bar at the possibility of a paralegal program at LAO
- the prospect of paralegals playing a major role in the area of family law, and encouraging the Law Society of Upper Canada (LSUC) to amend its regulation which restricts paralegals from practicing family law
- the option of issuing certificates to paralegals (which is not possible — the Legal Aid Services Act dictates that certificates can only be provided to a lawyer, but an amendment could change the designation to “licensee”)
- alternative methods to compensate service providers.
The Board received the Paralegal Project Update and approved the Strategic Direction.
7.2 Joint General Counsel and Policy and External Relations reports
MAG/LAO Memorandum of Understanding (MOU) update
The President and CEO circulated, and the Board approved, the MAG Final Draft of the MAG/LAO Memorandum of Understanding, dated April 2, 2014, for the Board’s consideration.
The President and CEO expressed his appreciation to the Vice-President and General Counsel, the Vice-President, Policy, Research and External Relations and Policy Counsel for their exceptional effort in these protracted negotiations.
The Board discussed whether the new MOU is likely to improve the lines of communications between MAG and LAO and what effect, if any, it is likely to have on MAG’s interaction with justice sector stakeholder groups.
The Board approved the Final Draft of the Memorandum of Understanding between Legal Aid Ontario and the Ministry of the Attorney General, dated April 2, 2014.
7.3 Corporate services reports
Update on new investment funding for clinic and family law projects
The Vice-President and CAO noted that the total new investment is $30 million ($10 million per year for three years) and that:
- LAO will establish a project funding application process for clinics and other community agencies.
- there will be a rigorous set of criteria for funding approval
- on the family side, criteria for investment include initiatives to significantly reduce the number of unrepresented clients in court
- projects under consideration include supporting and encouraging mediation, provision of independent legal advice for mediation, provision of summary legal advice, expanding Family Law Service Centres
- the proposals contemplate minimal use of staff and more contracts with the private bar.
- LAO is consulting with the family law bar across the province.
The Director, Corporate Services and Strategic Planning Initiatives, advised that:
- major objectives include early access to information and advice, more representation services and consensual dispute resolution
- the initiative seeks to improve outcomes for victims of domestic violence and other vulnerable groups
- the program must be measurable and sustainable at the end of the three-year funding period.
The Board discussed the IT requirements for “live chat” and social media outlets.
The Board received the update on new investment funding.
7.4 Strategic planning and compliance reports
Complex Case Rate report
The Board discussed the Complex Case Rate. The Director, Business Intelligence and Statistics, presented preliminary statistics that found that the CCR panel is not resulting in cases being concluded with less effort or in a more timely manner
Trends in legal aid criminal law services
The Vice-President, Strategic Planning and Compliance, presented a legal aid criminal law services analysis. Its objective is to relate external statistics to LAO’s own activity, to understand the reasons for the decline in the number of certificates issued, and how this decline may or may not relate to what is happening in courts.
Among the statistics available:
- duty counsel’s enhanced client services are only minimally affecting certificate numbers
- youth charges have declined significantly
- coverage for Aboriginal peoples has increased
- criminal charges appear to be trending down internationally.
The Board discussed the increase in diversions and withdrawals as part of the Justice on Target initiative.
LAO will continue to monitor the situation and report back to the Board.
The Board received the Strategic Planning and Compliance Reports.
7.5 In-camera session
President and CEO Final Performance Review for 2013/14.