Public proceedings of the Board

Meeting of the Board of Directors on February 24, 2015

Attendance

Board members present

John McCamus (Chair), Nancy Cooper (by teleconference), Christa Freiler, Carol Hartman (by teleconference), John Liston, James McNee, Tim Murphy, Michel Robillard, James Yakimovich, David Field (CEO/Ex Officio)

Staff present

Janet Budgell, Mary-Ann Cocchetto, Vince Correia, Sue McCaffrey, David McKillop, Stephanie Mealing, Michelle Sguin, Rod Strain, Cory Philipzyk-Sambrano

Guests

Laura Bell (Office of the Auditor General), and Michael Hawtin and Juliane Cooke (PwC)

1. Meeting agenda

The Chair advised that the Audit Plan agenda item would be moved to the beginning of the Board proceedings and the President and CEO would present the Refugee and Immigration Program Status Report on behalf of the Executive Lead, Refugee and Immigration Services—GTA. He welcomed Janet Budgell, Vice-President, Southwest Region and Specialty Clinics, who will present her regional report. The meeting agenda was adopted as amended.

2. Conflict of interest

No conflict of interest was identified.

3. Board of Directors meetings

  • Minutes of the December 8, 2016 Board Meeting
  • Minutes of the December 9, 2016 Board Meeting
  • Minutes of the December 29, 2016 Board Meeting
  • Minutes of the January 30, 2017 Board Meeting

A Board Member noted that she is listed as present at the December 8, 2016 meeting, however, she was not in attendance. The minutes will be amended accordingly.

3.1 Decision

Subject to the amendment to the December 8, 2016, minutes set out above, the minutes of the Board meetings held December 8, December 9, and December 29, 2016, and January 30, 2017, were adopted.

4. Chairs report

4.1 Verbal report

The Chair reported on the following:

  • at the Board meeting on Thursday, February 23, 2017, quorum was not reached and therefore no Board business was conducted
  • Board member Nancy Cooper has been reappointed to the Legal Aid Ontario (LAO) Board of Directors for a further three-year term
  • he met with the team from Deloitte, who are conducting the internal review, for an approximate 90-minute session, during which they discussed the following items as defined in Deloittes scope of review:
    • Board knowledge of the projected deficit and the strategies for the implementation of the financial eligibility funding
    • the refugee program and operating deficit issues
    • structure of Board meetings and Board self-evaluation
  • the Deloitte audit team was provided with all of the material requested, including the latest package of new Board member orientation material, which contained a budget report.
  • the audit team was also advised with respect to the Boards annual retreat as well as the regular site visits for Board members to become more directly familiar with LAO operations in the field
  • he advised the audit team that within the last year or two, an executive from Deloitte attended an LAO Board retreat to talk about best practices and, although many of the best practices had already been adopted by the Board, LAO has incorporated additional best practices on the basis of suggestions made at that time relating to Board procedures
  • the internal review team may want to meet with other members of the Board

The Chair reported that:

  • LAO will be given an opportunity to provide input before the report becomes final
  • the report is due March 31, 2017

4.2 Appointment of corporate secretary

The Board discussed the appointment of Mary‑Ann Cocchetto as Corporate Secretary of LAO.

4.3 Proactive disclosure of expenses

The Chair expended a total of $1,626.62 for travel expenses and hotel accommodation to attend the Criminal Justice Symposium in Vancouver, BC on January 19 and 20, 2017.

4.4 Decisions

The Board:

  • approved the appointment of Mary‑Ann Cocchetto as Corporate Secretary of LAO, effective May 1, 2017
  • received the Chairs Report

5. President and CEO report

5.1 Summary legal advice

An extensive review was conducted of the telephone Summary Legal Advice (SLA) program. LAO intends to move the program out of the Client and Lawyer Service Centre (CLSC) and incorporate it as part of the duty counsel program to be managed in the regions. There are many variances in regional practices throughout the province that are most easily dealt with on a local level. LAO has the capacity within the regions to provide this service. Integration of this service will assist in the further development of a regional full-service model.

5.2 Service Integration Project

The Service Integration Project is rolling out across the province. This project provides duty counsel with iPads with electronic worksheets containing client information so the clients will not have to repeat their story each time they encounter a new duty counsel. It is an effective tool and makes client service much more seamless.

The President and CEO reported on LAOs efforts to access WiFi in the courthouses as well as ICON data electronically. Access to ICON requires permission of the judiciary and LAO is working with the Ontario Court of Justice Criminal Modernization Committee, chaired by Chief Justice Maisonneuve, and the Deputy Attorney General, to that end.

5.3 Criminal law bail initiative

LAO has identified locations where it can provide additional staff to support the Attorney Generals new bail initiative. An additional $4M will be added to LAOs transfer payment for this purpose. Discussions are ongoing with MAG regarding where to deploy LAO staff.

5.4 R. v. Jordan

The LAO Criminal Issues Committee has produced a Practice Advisory for duty counsel and other staff on how to respond in the best interests of the client.

5.5 Plea comprehension form

This form was created by LAO, after consultation with relevant parties, to ensure that clients are provided with adequate advice prior to entering a guilty plea. It is mandatory for use in all guilty pleas by staff and per diem duty counsel. It ensures that the client is made aware of all implications or secondary consequences of a guilty plea.

5.6 Support for second judicial pre-trial

After an initial pilot phase, LAO has agreed to fund defence counsel who are required to attend a mandatory second Judicial Pre-trial Conference (JPT) on the basis that evidence suggests that court time can be saved by lowering trial collapse rates and adjournments. To date, this has resulted in the issuance of 400 certificates at two hours each. In time, an evaluation will be undertaken to determine if the initiative is having the desired effect.

5.7 Clinic information management system (CIMS)

The plan is for CIMS to go live on May 1, 2017. Efforts will be underway over the next few months to address any deficiencies identified in the roll-out and to provide training.

5.8 Stakeholder meetings

The President and CEO has met with:

  • The Executive of the Federation of Law Associations (FOLA)
  • The Alliance for Sustainable Legal Aid (ALSA)
  • together with the Vice-President, Policy, Research and External Affairs, and others, the President and CEO appeared before the Parliamentary Standing Committee on Justice and Human Rights with respect to the support provided by the federal government to legal aid across Canada
    • the standing committee expressed an interest in the processes with respect to refugee matters
  • the President of OPSEU to discuss matters of common interest

The President and CEO reported:

  • the Service Integration Project, will provide a better picture of what services are being provided by duty counsel and support future decision-making
  • this matter will be brought back to the Board with detailed information on duty counsel services
  • the Chair inquired about the current status of the Law Society of Upper Canada (LSUC) Committee on Legal Aid. The President and CEO reported that the LSUC Committee has interviewed a LAO staff member with respect to how LAO supports its duty counsel.

The President and CEO reported that the Vice-President, GTA Region, represents LAO on the new Toronto Courthouse Committee and that LAO has provided input to the committee with respect to the needs for LAO services, i.e. the number of interview rooms, etc. The new courthouse will not be habitable until 2025 and bail court will reside elsewhere.

Decision

The Board received the President and CEOs Report.

6. Lease renewal update

The Vice-President and CAO reported on the status of LAOs Provincial Head Office lease negotiations.

6.1 Decision

The Board received the lease negotiations update.

7. Board reports

7.1 Corporate service reports

7.1.1 Audit plan

The Vice-President and CAO reported:

  • the Auditor General of Ontario seeks proposals for the appointment of new auditors for Legal Aid Ontario every five years
  • PwC was the winning bidder for the current five-year term
  • in the usual course, audit plans are brought to the Audit and Finance Committee, however, timing dictated that this audit plan be presented to this meeting of the Board
  • the purpose of this meeting is for the auditors to advise the Board on areas upon which they will concentrate the audit, and to provide an opportunity for the Board to direct any questions or raise any issues they feel the auditors should focus on during the course of the audit

Laura Bell presented the 2016/17 Audit Planning Report

  • the template is similar to the one used the previous year
  • the audit objectives and responsibilities including the responsibilities of the Board and senior management
  • there is a sign-off sheet with respect to the roles and responsibilities
  • the audit will examine risk assessment and potential for fraud
  • the audit team will provide the Audit and Finance Committee with an Audit Findings report listing any errors, fraud and/or interim control deficiencies, if any
  • it is the responsibility of the LAO Board to ensure there is a culture of honesty and ethical behaviour and highlighted managements responsibilities
  • reviewed the audit approach and noted that some preliminary work has already been completed
  • inquired if the Board members present were aware of any actual or suspected fraudulent behaviour at LAO, to which all Board members responded in the negative
  • preliminary materiality threshold will be approximately $8.9M, based on 5% of expected expenditures of $466M
  • highlighted specific audit approach areas as required by Canadian Auditing Standards, including:
    • management override
    • risk of fraud in revenue recognition
    • risk of overstatement of certificate expenses
    • risk of overstatement of accounts receivable and valuation of accounts receivable – allowance for doubtful accounts
    • legal services accrual work performed but not yet billed (i.e. test alternative fee arrangements to determine if the reduction to the accrual is appropriate)
    • internally restricted net assets
    • expense and payroll testing controls
  • the audit team will utilize the work completed by LAOs actuaries as well as the internal audit report and LAOs annual report
  • noted PwCs independence for the purposes of performance the audit of LAO
  • notwithstanding a change in accounting firms and auditing standards, process will not change significantly from the prior year
Decision

The Board approved the audit plan covering the fiscal period ending March 31, 2017.

7.1.2 Budget status report (2017/18)

The Vice-President and CAO:

  • reported the budget was presented to the Audit & Finance Committee, however, a decision was made to bring it to the full Board, incorporating slight amendments
  • provided a breakdown, by strategy, to provide a better understanding of the financial situation
  • reported the Audit & Finance Committee had requested more information about the unfunded tariff and its implications on the budget
  • reported that this budget-setting exercise has been a year-long process
  • advised that for the current fiscal year, staff are recommending an $11M deficit
  • the pull-back made to some of the legal eligibility expansion initiatives were approved by the Board in December 2016
  • with respect to the refugee program, until the amount of increased federal funding is announced in the federal budget, if any, LAO cannot take any action
  • LAO assumes that part of the financial pressure will be offset by new federal funding, a reduction in services, or a change in service delivery model
  • reported on other operational pressures, including:
    • unfunded tariff
    • small deficit carried forward
    • $3M transfer payment reduction
  • Board-approved mitigation strategies to reduce this pressure to $7M for the next year and into the future
  • by the end of 2018/19, LAO will have created a surplus in the legal eligibility program sufficient to offset the expenditures from last year and the current year
  • in 2018/19, staff will propose reinstituting some of the withdrawn legal eligibility policies
  • by 2019/20, LAO will balance the program with existing revenues
  • LAOs cash position is under pressure for 2017/18
  • the cash position fluctuates and LAO manages its cash on a day-to-day basis
  • LAO needs to address its accumulated deficit in the range of approximately $36M
  • Possible strategies to eliminate the accumulated deficit include creating operational surpluses, and allocating any increased revenues from the Law Foundation of Ontario arising from Bank of Canada rate increases, over and above what LAO uses for in-year operating costs, to reduce the accumulated deficit

The Board discussed LAOs accumulated deficit and accrued liability on certificates with respect to the cycle of payments, i.e. an amount of cash equal to work done but not billed.

The Vice-President and CAO noted that the projected $7.7M operating surplus for 2018/19 will be used to offset the accumulated deficit in financial eligibility.

The Vice-President and CAO reported staff will prepare an analysis of this issue for presentation to the next meeting of the Audit and Finance Committee

Decision

The Board approved:

  • the budget
  • the financial eligibility funding allocation
  • a letter be drafted to the Deputy Attorney General outlining the impact the unfunded component of the cost of the tariff has had on LAOs financial position

7.1.3 Executive compensation update

The Vice-President and CAO reported LAO is obligated to establish a framework that meets the requirements and is approved under the Broader Public Sector Executive Compensation Act, 2014 (BPSEC).

The Vice-President and CAO reported that a draft executive compensation framework will be brought back to the Board for a decision on what compensation framework the Board will implement before the framework is posted.

Decision

The Board:

  • approved the establishment of an executive compensation framework following the requirements of the Broader Public Sector Executive Compensation Act, 2014 (BPSEC)
  • authorized staff to proceed as outlined

8. Strategic planning and compliance reports<

8.1 Amendments to 2017/18 business plan

The Board discussed amendments to the 2017/18 business plan.

Decision

The Board:

  • approved the changes to the 2017/18 Business Plan
  • authorized the Board Chair and the CEO to approve the final version with the updated financial framework that will be submitted to MAG

8.2 Board retreat theme recommendations

The Acting Vice-President, Strategic Planning and Compliance presented the report on the LAO Board strategic planning retreat scheduled to take place May 12, 2017. He reported:

  • the 2017 retreat will incorporate a strategic planning component to identify key strategic goals over the next five years, and develop a mandate and vision to ensure responsive and meaningful legal aid services, as well as improved access to justice
  • the various proposed phases:
    • planning—identifying a planning team and framework
    • assessment—assessing current state
    • strategy development—define future state
    • aligning the LAO Board Retreat with the Development of a Long Term Strategic Plan
  • a sub-committee of Board members will be struck to suggest general themes/topics, discussion and agenda items and potential speakers.

Decision

The Board approved:

  • recommended theme for the retreat
  • selection of members of the Board to form a sub-committee that will meet in early March

9. Policy, research and external affairs reports

9.1 Potential funding for Gladue report

The Vice-President, Policy, Research and External Relations, reported:

  • LAOs Gladue Report program has been in existence since 2004 and with the support of this Board, the program was expanded substantially in 2014 and now makes Gladue reports available in most communities across the province.
  • he noted that LAO currently spends about $1.8M funding third-party service providers including indigenous agencies to prepare Gladue reports on behalf of LAO clients
  • at the 2017 annual National Symposium on Criminal Justice, LAO was acknowledged as being a leader in Gladue report writing, in large part due to the commitment of those service providers and agencies
  • the Ontario government and MAG, in response to the Truth and Reconciliation Commission recommendation, have made a commitment to create a culturally responsive justice system
  • MAG is committed to doubling the number of Gladue report writers from 20 to 40 in the next fiscal year
  • there are challenges with the current Gladue report program, including the fact that there are multiple funders and different funding agreements, and there exists a lack of standards and quality assurance, etc.
  • there is general misunderstanding about the intent of the Gladue report, i.e., notwithstanding the fact that LAO funds this program, these are not defence reports but are for the benefit of the court, and defence counsel are not permitted to provide input into the content

Decision

The Board received the Report of Gladue Report Funding.

10. Refugee and immigration program status

The President and CEO reported:

  • LAO does not know if any new funding will be forthcoming from the federal government resulting in the development of a number of different scenarios
  • staff have engaged in discussions with the federal government
  • the President and CEO, and Vice-President, Policy, Research and External Relations, have appeared before the Parliamentary Standing Committee on Justice and Human Rights, and staff have also met with the Minister of Immigration
  • LAO is attempting to get a sense of what resources will be available and whether or not LAO will have to make changes in services
  • there is speculation that as many of 40,000 refugees could arrive at the Manitoba and Quebec borders to claim refugee status, and that teams of paralegals are being hired in those provinces to help complete the claim forms
  • there are a number of volunteers providing pro bono services to refugees at airports and other locations
  • LAOs service model is the most extensive in Canada and a review of how it delivers those services will be undertaken
  • LAO met with the Refugee Lawyers Association to discuss ideas and potential internal processes

Decision

The Board received the Refugee and Immigration Program Status Update.

11. Southwest regional report

The Regional Vice-President, Southwest Region and Specialty Clinics, presented an overview of service delivery in the southwest region and specialty clinics.

Decision

The Board received the overview of service delivery in the southwest region and specialty clinics.

12. Committee reports

13.1 Audit and finance committee

Minutes of the Meeting of the Audit and Finance Committee held January 25, 2017.

Decision

The Board adopted the minutes of the meeting of the Audit and Finance Committee held January 25, 2017.

13.2 Clinic committee

Minutes of the meeting of the Clinic Committee held December 13, 2016.

Decision

The Board adopted the minutes of the meeting of the Clinic Committee held December 13, 2016.

13. Conclusion

The meeting adjourned.