Changes to policies and certificate coverage

In 2019, LAO changed the way we fund, provide and manage legal services. For a recap of those changes, please review: Reminder: Changes to LAO policies and certificate coverage in criminal, family and mental health law, effective June 12, June 26 and July 7, 2019 – Legal Aid Ontario

The following are questions and answers for the changes made to the certificate programs.

Q&A for changes to criminal certificate services

Billing

If counsel has a tariff certificate paid hourly and the client is re‑arrested on a new charge, can counsel have the charge added to the hourly certificate to bill for the bail hearing?

Whether a new certificate is to be issued or added to the current certificate depends on if the matters will be heard separately or together with the outstanding charges. In the former situation, a new certificate is issued. In the latter, or if unknown, the charge will be added to the current certificate.

If the new charge is added to the original hourly (tariff) certificate, counsel can bill for either an initial bail hearing on that certificate, or, bill for a second bail hearing if the Crown brings a s.524 application. If the charge is issued on a new block fee certificate, counsel can bill for a second bail hearing on the original hourly (tariff) certificate if the Crown brings a s.524 application, but cannot bill for an initial bail hearing on the block certificate, and the bail hearing can be referred to duty counsel.

Can a client pay privately for a bail hearing matter if it is not covered under a certificate without being disqualified from getting a certificate to deal with the substantive charges?

For the bail hearing: Lawyers can represent a client privately on the bail hearing if it is conducted prior to the effective date of the certificate and fees are not unreasonable. Privately paid amounts up to $1,000 prior to the effective date of the certificate will be deemed “reasonable” and will not be subject to deduction or set off. Amounts paid for bail greater than $1,000 will be reviewed for reasonableness and may be subject to deduction or set off. The amount of any private retainer will also be considered along with other financial information in determining the client’s eligibility for legal aid.

Please refer to the Private retainer for bail practice memo for more information.

Once a lawyer acknowledges a legal aid certificate, they are prohibited from requesting or accepting any payment or gift from the client in addition to the fees and disbursements authorized in connection with the proceedings covered by the certificate.

If the client is Indigenous and counsel wants to privately bill for the bail hearing and make Gladue submissions with a Gladue Report, can counsel charge the client privately for the bail, but bill the certificate for the Gladue submissions?

No. If the client is paying privately for counsel to do a bail hearing, then this retainer should be inclusive of any Gladue submissions. Counsel is not permitted to bill a certificate for Gladue submissions if bail services are being provided by way of private retainer. If, however, counsel ends up making Gladue submissions at sentencing using a publicly‑funded Gladue Report, counsel can then bill the certificate for these services.

When will the change to duty counsel appearance fees go into effect?

The change to appearance fees goes into effect on June 26, 2019 and is based on the service date. If services were provided prior to June 26, 2019, but billed after that date, appearance fees will be paid.

Does the cancelation of acknowledgement fees affect block fees?

Yes. Block resolution fees have been reduced by $54.57, equal to half an hour at the Tier‑1 lawyer rate.

Are 90-day reviews in Superior Court covered?

There is no additional coverage for the 90‑day review. Services are covered with the base tariff/block fee.

In regards to certificate payments, if an account is submitted before June 26, 2019, is it still payable in 14 days?

Yes, accounts submitted on or after June 26, 2019 will be paid in 28 days.

When can I conduct a bail hearing for my client and receive payment from LAO?

If the matter is set down for trial, the certificate will be paid hourly and counsel will be able to bill for the bail hearing. In addition, counsel can bill for bail hearings on all excluded charges and processes.

Excluded charge categories

Homicides and other offences involving loss of life (including attempted murder and counseling offences)
Offences involving use of firearms–mandatory minimum sentences
Offences with complex issues or stigma attached, ex. sexual assault
Conspiracy to commit indictable offences
Offences against children
Criminal organization offences
Terrorism offences
Historical offences

For a complete list of excluded charges, counsel should refer to LAO’s website.

Excluded processes

BCM/CCR cases
Appeals
YCJA matters
Dangerous offender proceedings
Extraordinary remedies/prerogative writs
ORB hearings
Miscarriage of justice reviews
Protocol Case Unit cases
Long‑term offender applications
Breach of conditional sentences
Extradition proceedings

Changes to current practice

Are youth bail hearings still covered after July 7?

Yes. Youth matters are excluded from block fees and are billed hourly, so bail hearings will continue to be covered.

What is the new process for receiving authorization for a bail review?

As of July 7, LAO is returning to the bail review authorization process that was in place before the guaranteed authorization pilot. Counsel must apply for authorization through Legal Aid Online and show why the review has merit before authorization is given. Refer to the new Merit test for bail review guidelines for details on what counsel should submit for LAO to consider merit and provide authorization.

In extenuating circumstances, will counsel be compensated to do a bail in a block fee matter?

The general rule is that counsel will not be compensated for block fee bails. If there are extenuating circumstances requiring that retained counsel conduct a bail hearing in a block fee matter, please contact the local manager of legal services (MLS) or supervisory duty counsel for more information.

Many duty counsel offices have already committed to representing clients at JPT hearings scheduled after July 8. Will LAO be honouring these commitments?

LAO will honour existing commitments, but will not make any new ones as of July 8.

When duty counsel starts doing block fee bails, what will duty counsel do when counsel has acknowledged the certificate?

Duty counsel take their instructions from the accused. If a private bar lawyer has acknowledged the certificate, duty counsel will contact counsel for direction. If duty counsel reaches counsel, counsel can direct duty counsel to proceed. If counsel cannot be reached within a reasonable period of time, duty counsel should follow current local protocol. If duty counsel forms the opinion that they cannot or should not do a bail hearing for whatever/any reason, duty counsel will raise this with their manager who may escalate the issue to the director general, if necessary.

Once duty counsel decides to proceed on a bail hearing, duty counsel is retained for the limited purpose of proceeding with the bail and will take instructions from the accused, even if duty counsel’s approach to the matter differs from that of private counsel.

If there are matters in remand court that have counsel on record, but there is no counsel or client in attendance and the court asks duty counsel to contact the lawyer for instructions, will duty counsel do this?

This decision will be made on a local level by managers in consultation with the directors general. Please speak to the local manager or supervisory duty counsel about local process.

Bail variations are no longer being covered for block fee matters. Are duty counsel going to provide this assistance to certificate clients?

No. If counsel has acknowledged the certificate, duty counsel will not do the bail variation on behalf of counsel.

When will duty counsel do agency work for certificate clients?

Agency work will be done for certificate clients on routine/administrative matters or matters where travel requirements warrant agency work. Speak to your local manager of legal services (MLS) or supervisory duty counsel for local practices.

Timing of service changes

Can counsel bill for a block fee bail for attendance at Weekend and Statutory Holiday (WASH) court on Sunday, July 7?

Yes. Bail service changes will take place on July 8.

When do changes come into effect?

The acknowledgement fee change came into effect for certificates issued on or after June 12, 2019.

The 28‑day payment cycle and the appearance fee came into effect June 26, 2019.

Most other changes, including bail, come into effect for certificates issued on or after July 7, 2019. Previous rules apply to certificates issued before July 7.

Block fee certificates issued prior to July 7 will be able to bill for bail hearings. Block fee certificates issued on or after July 7 will no longer be eligible for bail hearing coverage.

There are two exceptions to the general “pre‑July 7/post‑July 7” rule:

Bail reviews
Regardless of certificate issuance date, if the request for bail review coverage is on or after July 7, coverage will be reduced to five hours ($455.81 block fee) and applications will be subject to a merit test.
Gladue
Regardless of certificate issuance date, if the client did not self‑identify as Indigenous when the certificate was issued, and if the request for Gladue coverage is on or after July&nbp;7, the coverage is reduced to three hours ($273.49 block fee).

Information about Gladue‑related service changes

LAO recognizes Gladue Reports are an essential, frontline service that improve outcomes for Indigenous clients. LAO, through its Aboriginal Justice Strategy, will continue to fund Gladue Reports across the province through agreements with Indigenous organizations (Aboriginal Legal Services, Nishnawbe‑Aski Legal Services Corp., and Grand Council Treaty 3).

In̽depth Gladue Reports are prepared by Indigenous writers and provide information on the unique circumstances of Indigenous people accused of criminal offences, as well as alternatives to incarceration, including restorative justice principles and processes.

LAO does not determine the policies that address the demand on their resources.

Lawyers using a publicly‑funded Gladue Report in connection with a certificate are now eligible to receive a three‑hour Gladue Report “enhancement” or a $273 Gladue Report Block instead of the previous five‑hour “enhancement” or $455.81 Gladue Block.

Gladue Reports are usually ordered for complex matters that require extra time and work. LAO recognizes this through this new approach. The Gladue Report Enhancement does not require a new report for every matter, but may require some details about when the report that is being used was prepared and by who.

LAO acknowledges that sentencing circles are be a meaningful way for clients to have their matter addressed. There has never been an extra fee for service for sentencing circles and it will continue to be covered under the block or tariff.

LAO continues to cover bail hearings for tariff matters. Certificate lawyers may no longer bill for bail hearings on block fees. On these matters, duty counsel will continue to be available to provide bail services. Duty counsel are provided with training on the Gladue principles and continue to be able to make appropriate submissions. In fact, in many jurisdictions where there are Gladue/Indigenous Peoples Courts, duty counsel have extensive knowledge of the practices of the court, the historical and contemporary issues impacting local Indigenous communities, as well as the culturally relevant resources that are available.

Q&A for changes to family certificate services

Case conferences

Does the maximum of two (2) billable conferences apply to domestic violence cases?: No.
My client and I have used the two billable conferences that are available on the certificate. We have now been asked to participate in an LAO settlement conference. Is this permitted? Will I receive payment for my work in preparing for and attending at the LAO settlement conference?: Yes, you may participate in an LAO settlement conference. You can now request a specific authorization for an LAO settlement Conference (FA033), which will allow you to bill for 2 hours preparation and actual attendance time at the LAO Settlement Conference. This authorization is separate from the case conference authorization.
Does the conference limit apply only to certificates issued after July 7, 2019?: The case conference limit only applies to certificates issued after July 7, 2019. It will not apply retroactively to certificates issued before July 7, 2019.

Independent legal advice & separation agreement certificates

I have a family law certificate for a client who is interested in participating in mediation. Can I help the client with this, now that there are no longer independent legal advice or separation agreement certificates?: Yes, you can use the hours available under your initial allotment to assist a client who is interested in mediation or in negotiating a separation agreement. The time spent in mediation or in negotiating a separation agreement will be billed against the regular allotment, however, and additional hours are not available specific to providing independent legal advice on a mediation or negotiating a separation agreement.

Motion to Change/Variations

I understand that LAO is no longer issuing certificates for variations/motions to change where there is no DV flag. I am helping a client who has a certificate for a motion to change/variation that does not include a DV flag that was issued before July 7, 2019. Are there any changes to that certificate?: No, if the motion to change/variation certificate was issued before July 7 2019, you may continue to assist the client in the same way as you historically have. If additional authorizations are needed (for example, for an LAO settlement conference), you may also continue to request these on these certificates in the same way that you previously have.

Refugee services

Starting September 23, 2019, RPD hearing preparation authorizations for most claims will again be available after a claim has been referred to the IRB and when lawyers need to begin preparation work: