Block fees: Frequently asked questions
Block fee basics
- What is the Legal Aid Ontario (LAO) block fee program?
- Block fees are fixed fees paid to lawyers for their work on specific activities or stages of an eligible criminal case. Unlike LAO’s current hourly tariff, block fees do not rely on hours to compensate lawyers.
LAO’s block fee program works in conjunction with our existing hourly tariff. LAO will pay routine criminal matters by block fees, and complicated matters by the hourly tariff. The result is a “hybrid billing and payment model,” in which a certificate can be paid either by block fees or the hourly tariff depending on the charges, the type of proceeding, or the progress of the case.
The block fee program is a key provision of the January 2010 Memorandum of Understanding (MOU) signed by the Ministry of the Attorney General (MAG), the Criminal Lawyers’ Association (CLA), and Legal Aid Ontario.
This payment structure accounts for a variety of charges, client needs, and proceedings in criminal defence work in Ontario.
- Why has LAO introduced block fees?
- Block fees represent the most significant reform to the criminal tariff in the last 18 years. The basic rules and policies governing payments to lawyers have not been reviewed or amended since 1995.
The objectives of the block fee program are to:
- promote high-quality client services and systemic efficiency;
- reduce administrative red tape;
- ensure that complicated cases and trials, and cases with vulnerable clients are funded appropriately;
- create greater accountability for the use of public funds.
- Are these the same as Ontario Legal Aid Plan (OLAP) block fees?
- No. The OLAP block fee program for criminal matters was replaced by the current hourly tariff in 1995. LAO’s block fee program differs in several important respects from OLAP-era block fees. Most importantly, LAO’s block fee program includes crucial quality assurance tools, and more protection against the risks of inappropriate volume billing and financial overruns.
- Can any criminal lawyer accept block fee certificates?
- Yes, any criminal lawyer on LAO’s criminal panel can accept block fee-eligible certificates, assuming they have met the appropriate panel standards.
Block fee charges and proceedings
- Do block fees apply to all criminal certificates?
- No. Not all criminal certificates are included in block fees. Some matters are automatically excluded if they are inherently complex, serious, or have highly variable costs. Other matters may be excluded based on the circumstances of an individual case.
For example, all Big Case Management/Complex Case Rate and Young Offender (YCJA) cases are automatically excluded.
The most serious indictable charges are also automatically excluded, including:
- homicide charges;
- manslaughter charges;
- attempted murder charges;
- criminal negligence causing death charges;
- conspiracy charges;
- kidnapping charges;
- arson charges;
- armed robbery charges;
- aggravated assault charges;
- the most serious drug charges
- [the most serious] robbery and sexual assault charges.
- What proceedings are excluded from the block fee program?
- A wide range of complex criminal proceedings are automatically excluded, including:
- dangerous offender applications
- Youth Criminal Justice Act matters
- faint hope applications
- extraordinary remedies
- miscarriage of justice reviews
- extradition proceedings
View the complete list of exclusions.
Some matters may be excluded from the block fee program by the Director General, depending on the individual circumstances of the case.
Most importantly, all cases that proceed to trial or are set for trial are excluded from block fees, irrespective of whether the case is a summary conviction or indictable matter.
- What about trials and matters set for trial?
- If the most serious charge on a certificate is included in the block fee program, the determining issue is whether the matter has been set for trial. If the matter has been resolved prior to being set for trial, LAO will pay block fees. Once the matter has been set down for trial, the certificate will be paid by the hourly tariff, irrespective of whether the matter eventually resolves by way of plea, withdrawal, or contested trial.
- Are youth, refugee or family cases included?
- No. Block fees only apply to adult criminal matters.
Block fees and rates
- What block fees rates are available?
- LAO has established a sequential and cumulative set of fees that match a lawyer’s work on a criminal case, including a limited number of fees for specialized proceedings such as bail, motions, and judicial pre-trials. LAO has also established three types of block fees that address the needs of specific client groups :
- Resolution fees, including block fees for:
- Pre-trial proceeding fees, including block fees for:
- bail hearings
- bail reviews
- second bail hearing
- bail variation
- judicial pre-trials
- Charter motions
- Vulnerable client fees, including block fees for:
- Gladue matters
- mental health matters
The rate paid in any particular case depends on the severity of the most serious charge on the certificate. The fee is determined by the most serious charge on certificate. More information about these fee types and a full block fee rate list is available.
- Resolution fees, including block fees for:
- What are the block fees case categories?
- LAO has established three block fee case categories. Each level –summary I, summary II, and indictable – includes a range of criminal charges. View the complete list of charges in each category.
- What is the mental health enhancement?
- A mental health block compensates for the extra time that may be needed to provide legal services to clients with serious mental health issues. This block fee will be available to lawyers if:
- An appointment is made under section 85 of the Legal Aid Services Act
- The client has a prior s. 85, CCB or ORB certificate
- Client appears in Mental Health Court
- Treatment order is in place
- Court has signed Form 48
- Contested fitness hearing
The mental health block can only be billed on the final block fee resolution account.
- How was the fee calculated?
- Block fee rates are consistent with the MOU and LAO’s historic case costs for cases and charges within the block fee program. LAO has adjusted the block fee rates to account for all current tariff increases, including the most recent block fee schedule. Read more about how LAO calculated block fee rates.
- Will block fees be adjusted for experience or tiers?
- No. LAO concluded that tiering block fee rates would have a disproportionately negative impact on younger criminal lawyers. As a result, LAO will not pay differential fees based on experience on block fee matters.
LAO rates remain tiered for all criminal matters paid by the hourly tariff.
- Is the tariff increase included?
- Yes. As noted above, the block fee rates are based on LAO’s current costs for these cases and have been adjusted upwards to account for all current tariff increases.
The block fee rates are updated in accordance with the January 2010 Memorandum of Understanding between the Ministry of the Attorney General, the Criminal Lawyers’ Association and Legal Aid Ontario.
- Will discretion be available?
- No. Discretion is not available on block fee matters. Discretion remains available for all matters paid by way of the hourly tariff.
- What about disbursements?
- Block fees have been calculated to include payments for the three most common and low-cost disbursements, including:
- fax charges
- in-office photocopying
- process servers
All other disbursements (excluded disbursements) will be paid in accordance with the current disbursement handbook. LAO’s policies regarding disbursements on hourly tariff accounts remain the same.
- Is LAO still paying for DNA applications?
- There will be no block fee for DNA applications for cases that remain within the block fees program. Recent case law and legislative developments have decreased the likelihood of success for challenges to post-conviction court orders for the taking of DNA samples. On the tariff side, LAO will continue to fund counsel to respond to DNA applications for the time being, although that policy is undergoing review in light of recent developments.
- Will LAO continue to pay Northern Incentives and the Guaranteed Daily Rate?
- Yes. At this time, LAO’s Northern Incentive and Guaranteed Daily Rate will continue to apply to block fee matters. However, this is under review, as LAO is considering the impact of block fees on Northern Incentives and the Guaranteed Daily Rate. LAO will consult with stakeholders in Northern Ontario on these issues.
- Will lawyers have to submit records or dockets?
- Lawyers have the ability to attach dockets when submitting block fee accounts or other documents. Lawyers must maintain dockets and provide them upon request as they may be needed to support hourly tariff accounts or for audit/investigation purposes.
Dockets and the written confirmation from the Crown are required for block fee accounts if an articling student attended at a resolution for a negotiated withdrawal or stay.
- Does the annual billing limit (hard cap) apply?
- Yes. LAO’s annual billing limit (or hard cap) policy applies to block fee billings and accounts based on the dollar value paid to the lawyer.
For hard cap purposes, block fee billings are attributed to the lawyer who appeared at the pre-trial proceeding and or final appearance of a block fee matter. Please ensure the correct lawyer panel number is entered in the applicable fields when submitting your block fee account.
- Does the daily cap apply?
- No, the daily cap does not apply to block fee matters.
- What happens if a block fee matter is not resolved, such as a change of solicitor or if the client fails to appear?
- Certificates that are “not resolved” will be paid by the hourly tariff in accordance with LAO’s existing rules for these matters
- Can individual certificates be excluded from the block fee program?
- LAO is automatically excluding several complex charges and proceedings from the block fee program. These matters will continue to be paid by the hourly tariff. LAO may also exclude individual certificates within the block fee program on a case-by-case basis if certain criteria are met and lawyers apply in writing to their Director General before the account is submitted. This exception will be granted only in exceptional circumstances. Director Generals will consider such factors as exceptional Crown resources devoted to the prosecution, exceptional disclosure, an exceptional number of charges, the likelihood of multiple proceedings, novel facts or legal arguments, and/or lengthy sentencing proceedings.
- How did LAO decide which “enhancements” to include? For example, why did LAO include block fees for matters such as Charter motions and bail reviews? These will be very infrequent in block fee matters.
- LAO wanted to establish block fees for the most common enhancements available under the regular criminal tariff. LAO also wanted the enhancements available under block fees to be largely consistent with the enhancements available under the hourly tariff, even if they are billed infrequently. This approach promotes consistency between the block fee program and the hourly tariff program and makes it easier for lawyers to understand what fees/hours are available under each program.
LAO will be assessing the block fee schedule on an ongoing basis. This assessment will include consideration of whether to maintain block fees that are paid infrequently, whether to create new block fees, etc.
Block fee benefits and quality assurance
- What are the benefits for lawyers?
- Block fees benefit lawyers by:
- giving lawyers the financial certainty of a fixed fee;
- rewarding efficient, effective lawyers;
- reducing billing administration;
- providing more clarity and certainty to LAO’s billing rules;
- providing payment of legal aid accounts within 21-25 days for accounts that meet all billing guidelines and procedures.
- Will block fees help lawyers’ earnings?
- Block fees assume that not all cases take the same amount of time, but that the differences will average out over time. In other words, block fees assume that lawyers “win some and lose some.” Nevertheless, block fees have the potential to improve lawyers’ earnings on legal aid work in several ways:
- block fees will reward lawyers who resolve cases appropriately and efficiently
- LAO will not require lawyers to submit dockets for their block fee accounts on submission
- block fees will speed up account payment
- What are the benefits for clients?
- Block fees will help lawyers assist LAO clients in the most expeditious and cost effective manner. For example, clients should be subject to fewer dates in set date courts, and clients who wish to resolve their matters quickly should benefit from an earlier resolution of charges that would inevitably be resolved.
- How does LAO ensure high-quality services?
- LAO has developed a strategy for ensuring high-quality services in the block fee program.
This strategy involves the block fees for the most vulnerable clients, ongoing consultations with the bar and others regarding quality issues, establishing requirements that lawyers report on the outcomes or dispositions of their cases, and undertaking an independent third party review of block fee quality issues. LAO will also be reviewing its panel standards and panel management in criminal matters to ensure they appropriately account for block fee quality issues. Quality will be monitored very closely.
- How will LAO ensure lawyers are accountable and reduce the risk of inappropriate billings?
- LAO has developed several new accountability tools to ensure that lawyers are still accountable to LAO for the use of public funds:
- Lawyers must provide information about outcomes and appearances when submitting block fee accounts, to demonstrate accountability.
- Legal Aid Online has system controls and prohibitions to prevent or deter questionable billing practices, such as capturing a solicitor’s service dates.
- LAO has developed new audit, compliance, and panel management practices to ensure lawyers comply with applicable LAO policies and procedures, including information verification through icons.
Finally, LAO will work with the Criminal Lawyers’ Association to monitor block fee billing practices to ensure that lawyers continue to provide quality service to legally aided clients under the block fee structure.