Legal Aid Act, R.S.O. 1990, c. L.9"

Legal Aid Act, R.S.O. 1990, c. L.9, Legal Aid Act

Legal Aid Act

R.S.O. 1990, CHAPTER L.9

Note: This Act was repealed on April 1, 1999. See: 1998, c. 26, ss. 109 (1), 110 (2).

Amended by: 1993, c. 16, s. 1; 1993, c. 27, Sched.; 1994, c. 38, s. 37; 1998, c. 26, ss. 98-100; 1998, c. 26, s. 109.

Definitions

1. In this Act,

“area” means a part of Ontario designated by the regulations as an area for the purposes of this Act; (“région”)

“area director” means an area director appointed under this Act; (“directeur régional”)

“assessable administrative expenses” means the total of the expenses of the Law Society attributable to the administration of this Act and the regulations less,

(a) all expenses relating to community legal aid clinics, research facilities and salaried duty counsel, and

(b) all sums spent to support student legal aid societies; (“frais d’administration évaluables”)

“assessment officer” means a person designated by the Director as an assessment officer for the purposes of this Act; (“agent d’évaluation”)

“barrister and solicitor” means a member of the Law Society other than an honorary member or a student member thereof; (“avocat”)

“certificate” means a legal aid certificate or a provisional legal aid certificate issued under this Act; (“certificat”)

“Director” means the Director of Legal Aid appointed under this Act; (“directeur”)

“Fund” means the Legal Aid Fund under this Act; (“Fonds”)

“Law Society” means The Law Society of Upper Canada; (“Barreau”)

“legal aid” means professional services provided under this Act and the regulations; (“aide juridique”)

“person” means an individual; (“personne”)

“regulations” means the regulations made under this Act; (“règlements”)

“student” means a person enrolled in the Bar Admission Course or in any law course approved by the Law Society; (“étudiant”)

“student legal aid society” means a student legal aid society established in accordance with the regulations; (“Société étudiante d’aide juridique”)

“Treasurer” means the Treasurer of the Law Society. (“trésorier”) R.S.O. 1990, c. L.9, s. 1; 1993, c. 16, s. 1 (1).

Operation of plan

2. Subject to the approval of the Attorney General, the Law Society is hereby empowered to establish and administer a legal aid plan in accordance with this Act and the regulations. R.S.O. 1990, c. L.9, s. 2.

Appointment of Director, area directors, and staff

3. (1) Subject to the approval of the Attorney General, the Law Society shall,

(a) appoint a Director of Legal Aid;

(b) appoint an area director for each area; and

Accommodation, etc.

(2) The Law Society shall provide such office accommodation, furniture, equipment and supplies as it considers necessary. R.S.O. 1990, c. L.9, s. 3.

Area legal aid committees

4. (1) The Law Society may appoint a legal aid committee for an area.

Composition, etc.

(2) Each committee shall be composed of such number of members, shall be organized, and shall perform such functions, as the regulations prescribe.

Secretary

(3) The area director shall act as secretary of the area committee. R.S.O. 1990, c. L.9, s. 4.

Legal Aid Fund, payments in

5. (1) The Law Society shall,

(a) establish and maintain a fund, to be known as the Legal Aid Fund in English and as Fonds d’aide juridique in French, into which shall be paid all money appropriated by the Legislature for the Fund, all money payable by The Law Foundation of Ontario, all costs awarded to recipients of legal aid, and all contributions made by recipients of legal aid who are required to pay any part of its cost; and

(b) keep such accounts and records of the transactions of the Fund as the regulations prescribe.

payments out

(2) The Law Society shall, subject to the regulations, pay out of the Fund,

(a) its expenses attributable to the administration of this Act and the regulations, including,

(i) the expenses of the Treasurer and benchers and the expenses and allowances of members of committees,

(ii) the cost of office accommodation, furniture, equipment and supplies,

(iii) the salaries and expenses of the Director, area directors and other persons employed by the Law Society in the administration of this Act, and

(iv) the employer’s contributions to any superannuation or pension plan that benefits the persons employed by the Law Society in the administration of this Act or to which such persons may contribute;

(b) the fees and proper out-of-pocket disbursements of barristers and solicitors for legal aid;

(d) the fees and proper out-of-pocket disbursements of duty counsel; and

(e) audit fees. R.S.O. 1990, c. L.9, s. 5.

Estimates

6. The Law Society shall, at least once in every fiscal year of the Government of Ontario at such time as the Attorney General directs, submit to the Attorney General an estimate of the sum required to meet the payments out of the Fund during the next succeeding fiscal year of the Government of Ontario after making allowance for the money that it is estimated will be received from other sources. R.S.O. 1990, c. L.9, s. 6.

Money

7. (1) The money required for the purposes of this Act shall be paid out of money appropriated by the Legislature for the purposes of this Act.

Payment of appropriated money

(2) The money required for the purposes of this Act shall be paid to the Law Society by the Treasurer of Ontario and Minister of Economics from time to time upon the requisition of the Law Society. R.S.O. 1990, c. L.9, s. 7.

Auditor

8. The Provincial Auditor shall examine and report upon the accounts and financial transactions of the Fund. R.S.O. 1990, c. L.9, s. 8.

Advisory committee

9. (1) There shall be an advisory committee on legal aid appointed by the Attorney General and composed of,

(a) two judges of the Ontario Court (General Division);

(b) a provincial judge;

(d) a person holding a responsible position in the field of public welfare; and

(e) such other persons as the Attorney General may select.

Term of office

(2) Each member of the committee shall serve for a term of one, two or three years and may be reappointed on the expiry of the period for which he or she was appointed.

Report

(3) The committee shall report at least once in every year to the Attorney General,

(a) on the operation of the legal aid plan; and

(b) on the annual report of the Law Society to the Attorney General mentioned in section 10. R.S.O. 1990, c. L.9, s. 9.

Annual report

10. The Law Society shall make a report annually to the Attorney General for the twelve months ending on the 31st day of March of the year in which the report is made containing,

(a) a statement of the nature and amount of legal aid given during the year;

(b) a statement of the receipts and disbursements of the Fund during the year;

(d) general information as to the working of this Act and the regulations; and

(e) such other information as the Attorney General requests. R.S.O. 1990, c. L.9, s. 10.

Annual report

11. The Attorney General shall submit the reports mentioned in sections 9 and 10 to the Lieutenant Governor in Council and shall then lay such reports before the Assembly if it is in session or, if not, at the next session. R.S.O. 1990, c. L.9, s. 11.

Where legal aid may be given

12. (1) Except as otherwise provided in this Act or the regulations, a certificate shall be issued to a person otherwise entitled thereto in respect of any proceeding or proposed proceeding,

(a) in the Ontario Court (General Division);

(b) where the applicant is charged with an indictable offence or where an application is made for a sentence of preventive detention under Part XXI of the Criminal Code (Canada);

(d) in the Federal Court of Canada.

Assumption

(2) For the purpose of clause (1) (b), an offence that may be tried on indictment or on summary conviction shall be deemed to be an offence triable on summary conviction until such time as the prosecution elects to proceed on indictment. R.S.O. 1990, c. L.9, s. 12.

Certificate, subject to discretion of area director

13. Subject to the discretion of the area director, a certificate may be issued to a person otherwise entitled thereto,

(a) in any summary conviction proceeding under an Act of the Parliament of Canada, if upon conviction there is likelihood of imprisonment or loss of means of earning a livelihood;

(b) in any proceeding under the Provincial Offences Act, if upon conviction there is likelihood of imprisonment or loss of means of earning a livelihood;

(i) in the Ontario Court (Provincial Division) in respect of proceedings under statutory provisions set out in the Schedule to Part III of the Courts of Justice Act,

(ii) in the Small Claims Court,

(iii) before a quasi-judicial or administrative board or commission otherwise than in an appeal thereto,

(iv) in bankruptcy subsequent to a receiving order or an authorized assignment, or

(v) for contempt of court; or

(d) for drawing documents, negotiating settlements or giving legal advice wherever the subject-matter or nature thereof is properly or customarily within the scope of the professional duties of a barrister and solicitor. R.S.O. 1990, c. L.9, s. 13.

Certificate, with approval of area legal aid committee

14. (1) Subject to the approval of the area legal aid committee, a certificate may be issued to a person otherwise entitled thereto,

(a) in an appeal,

(i) to the Supreme Court of Canada,

(ii) to the Federal Court of Canada,

(iii) to the Court of Appeal for Ontario,

(iv) to the Divisional Court,

(v) to a judge sitting in court,

(vi) under Part XXIV of the Criminal Code (Canada) or the Provincial Offences Act,

(vii) to the Assessment Review Board from a municipal assessment of a property that is the residence of the applicant and by way of appeal from the decision of the Assessment Review Board thereon to a judge of the Ontario Court (General Division) and by way of appeal from the decision of such judge to the Ontario Municipal Board, or

(viii) to a quasi-judicial or administrative board or commission; or

(b) in a proceeding by way of mandamus, quo warranto, certiorari, motion to quash, habeas corpus, or prohibition; and

Procedure

(2) An application for legal aid in a proceeding under this section shall be made to the area director in the prescribed form, and the area director shall submit the application and supporting material to the area legal aid committee.

Idem

(3) The area legal aid committee shall consider the application and the supporting material and provide legal aid only if in the opinion of the committee the issue of a certificate is justified.

Appeal

(4) An appeal lies to the Director from a decision of the area legal aid committee dismissing an application under this section.

Later applications not barred

(5) Failure to apply for legal aid in the first instance does not bar an application for legal aid under this section. R.S.O. 1990, c. L.9, s. 14.

Where legal aid not to be given

15. A certificate shall not be issued to a person,

(a) in proceedings wholly or partly in respect of a defamation;

(b) in relator actions;

(c) in proceedings for the recovery of a penalty where the proceedings may be taken by any person and the penalty in whole or in part may be payable to the person instituting the proceedings; or

(d) in proceedings relating to any election. R.S.O. 1990, c. L.9, s. 15.

Applications

16. (1) Every application for legal aid shall be made in the prescribed form addressed to the area director of the area in which the applicant resides at the time the application is made or in which the occurrence for which legal aid is required took place.

Reference to assessment officer

(2) Except where the legal aid for which an application is made is estimated by the area director to whom the application is made to cost not more than $60 and he or she after investigation is satisfied that the applicant can pay no part thereof, every application for legal aid shall be referred by the area director to an assessment officer for a report as to whether the applicant can pay no part, some part, or the whole of the cost of the legal aid applied for.

Function of assessment officer

(3) The assessment officer to whom an application is referred shall consider the income, disposable capital, indebtedness, requirements of persons dependent on the applicant, and such other circumstances as he or she considers to be relevant that are disclosed in the application or that he or she ascertains after investigation, and shall report to the area director as to whether the applicant can pay no part, some part or the whole of the cost of the legal aid applied for and the sum, if any, the applicant is able to contribute towards the cost thereof.

Oaths

(4) Every assessment officer is in the performance of his or her duties under this Act a commissioner for taking affidavits within the meaning of the Commissioners for taking Affidavits Act.

When certificate may issue

(5) Subject to subsections (2) and (6) and whether or not a provisional certificate has been issued, the area director may issue a certificate only when he or she has received the report of the assessment officer and only where in the opinion of the area director the issue of a certificate is justified.

Provisional certificate in exceptional cases

(6) Where in the opinion of the area director the circumstances of an application require the issue of a certificate immediately, he or she may issue a provisional certificate without having first received the report of the assessment officer.

Terms and conditions

(7) An area director in issuing a certificate or provisional certificate may impose such terms and conditions as he or she deems proper.

Cancellation

(8) An area director may at any time cancel any certificate or provisional certificate he or she has issued.

Applications of non-residents

(9) An application for legal aid by a person not ordinarily resident in Ontario shall be disposed of by the Director.

Appeals

(10) An appeal lies to the area committee from the refusal of the area director to issue a certificate or from a cancellation of a certificate and a further appeal lies to the Director at the instance of the area director from the decision of the area committee allowing an appeal under this subsection.

Certificate upon request of court

(11) The Director may issue a certificate to an appellant or respondent in a criminal appeal where the Supreme Court of Canada or the Court of Appeal for Ontario is of the opinion that it is desirable in the interests of justice that the appellant or respondent should be represented and has requested that counsel be appointed and the Director is satisfied that the appellant or respondent has not sufficient means to employ counsel. R.S.O. 1990, c. L.9, s. 16.

Recovery of contributions

17. (1) The sum that a person is able to contribute towards the cost of legal aid given to the person as set out in his or her certificate shall be paid by the person and is a debt owing to the Law Society and may be recovered in any court of competent jurisdiction.

Charge on sum recovered

(2) Where a person who has been given legal aid in any matter recovers any sum in respect of such matter under a judgment, order, settlement or otherwise, the costs payable under this Act and the regulations are a charge against the sum so recovered and shall be deducted therefrom and paid into the Fund.

Charge on property recovered

(3) Where a person who has been given legal aid in any matter recovers property other than money, the Law Society has a charge against the property so recovered for the costs payable under this Act and the regulations and may enforce such charge.

Refunds

(4) A person who has been given legal aid in any matter shall be refunded any money received or recovered by the Fund for costs in excess of such costs. R.S.O. 1990, c. L.9, s. 17.

Delivery of certificate of lien to sheriff

18. (1) Where a person who owns or has any interest in any land in Ontario has agreed to contribute towards the cost of legal aid given to the person as set out in his or her certificate, the area director who issued the certificate may deliver or transmit a certificate of lien in duplicate in the form prescribed by the regulations to the sheriff for the area in which the land mentioned therein is situate and, if the area director does so, he or she shall also deliver or transmit a copy thereof to the Director.

Endorsement and entry in index book

(2) Upon receipt of a certificate of lien under subsection (1), the sheriff shall, without fee, endorse thereon the day of the year, the month, the hour and the minute of its receipt and shall enter in an alphabetically-arranged index book kept for the purpose the name of the contributor shown on the certificate.

Lien on land, registry system

(3) As soon as the endorsement and entry have been made under subsection (2) and the land mentioned in the certificate is in the registry system, the Law Society on behalf of the Fund has a lien against the contributor’s land mentioned in the certificate for an amount equal to the amount that he or she agreed to contribute towards the cost of the legal aid as shown in the certificate, to the extent that such amount remains unpaid from time to time.

Delivery of copy to land registrar

(4) As soon as the endorsement and entry have been made under subsection (2) and the land mentioned in the certificate is in the land titles system, the sheriff shall deliver or transmit to the proper land registrar a copy of the certificate, and the land registrar, upon receipt of the copy of the certificate, shall, without fee, endorse thereon the day of the year, the month, the hour and the minute of its receipt and shall enter in an alphabetically-arranged index book kept for the purpose the name of the contributor shown on the certificate.

Lien on land, land titles system

(5) As soon as the endorsement and entry have been made under subsection (4), the Law Society on behalf of the Fund has a lien against the contributor’s land mentioned in the certificate for an amount equal to the amount that the contributor agreed to contribute towards the cost of the legal aid given to him or her as shown in the certificate, to the extent that such amount remains unpaid from time to time.

Execution certificates

(6) Where a certificate respecting execution against land is required from a sheriff or land registrar, the sheriff shall, without additional fee, include in the execution certificate a statement as to whether there is a name shown in the index book mentioned in subsection (2) or (4), as the case may be, that is the same as the name shown on the certificate.

Discharge of lien

(7) As soon as a contributor has discharged his or her obligation to contribute towards the cost of the legal aid given to him or her, the lien mentioned in this section is discharged, and the Director shall deliver or transmit a certificate of discharge in duplicate in the form prescribed by the regulations to the sheriff to whom the certificate of lien was delivered or transmitted.

Duty of sheriff

(8) Upon receipt of a certificate of discharge, the sheriff shall attach the certificate of discharge to the proper certificate of lien and strike the name of the contributor from the index book kept pursuant to subsection (2).

Duty of land registrar

(9) Where the land mentioned in a certificate of discharge is under the land titles system, the sheriff, upon receipt of a certificate of discharge, shall deliver or transmit to the proper land registrar a copy of the certificate of discharge and, upon receipt of the copy of the certificate of discharge, the land registrar shall attach the copy of the certificate of discharge to the proper certificate of lien and strike the name of the contributor from the index book kept pursuant to subsection (4). R.S.O. 1990, c. L.9, s. 18.

Costs

19. The costs awarded in any order heretofore or hereafter made in favour of a person to whom legal aid has been given are recoverable in the same manner and to the same extent as though awarded to a person to whom legal aid has not been given despite the fact that no amount has been paid or is or will be payable for costs by such legally-aided person in whose favour the order is made or that costs so ordered are in excess of the total amount paid or payable for costs by such legally-aided person, and all costs paid or payable to such legally-aided person pursuant to any such order are the property of the Law Society and shall be paid into the Fund. R.S.O. 1990, c. L.9, s. 19.

No legal aid without certificate

20. Except as to the professional services provided by duty counsel, no person is entitled to legal aid in any matter unless the person holds a certificate or a provisional certificate respecting such matter that has been issued to him or her in accordance with this Act and the regulations. R.S.O. 1990, c. L.9, s. 20.

Legal panels

21. There may be established in accordance with the regulations,

(a) panels of barristers and solicitors who agree to give legal aid;

(b) panels of barristers and solicitors who agree to provide professional services as duty counsel;

(d) student legal aid societies. R.S.O. 1990, c. L.9, s. 21.

Payment for professional services

22. (1) Every barrister and solicitor who provides legal aid shall be paid out of the Fund,

(a) for legal aid provided pursuant to a certificate issued before the 1st day of July, 1986, or provided as duty counsel before that date, an amount equal to 75 per cent of the fees for services rendered as determined under the regulations;

(b) for legal aid provided pursuant to a certificate issued after the 30th day of June, 1986, and before the 1st day of April, 1988, or provided as duty counsel between those dates, an amount equal to 95 per cent of the fees for services determined under the regulations;

(c) for legal aid provided pursuant to a certificate issued after March 31, 1988 and before April 1, 1996, or provided as duty counsel between those dates, an amount equal to the fees for services rendered as determined under the regulations less the reduction, if any, under subsection 26 (2) or (3);

(c.1) for legal aid provided pursuant to a certificate issued after March 31, 1996, or provided as duty counsel after that date, an amount equal to the fees for services rendered as determined under the regulations; and

(d) subject to the regulations, an amount equal to the proper out-of-pocket disbursements in the matter in which the legal aid was given. R.S.O. 1990, c. L.9, s. 22 (1); 1998, c. 26, s. 98.

Appeals

(2) An appeal lies in accordance with the regulations to an assessment officer under section 90 of the Courts of Justice Act from the certificate of a person designated for the purposes of clause 27 (1) (n). R.S.O. 1990, c. L.9, s. 22 (2); 1993, c. 27, Sched.

Further appeal

(3) A further appeal lies in accordance with the regulations to a judge of the Ontario Court (General Division) from the decision of the assessment officer and the order of the judge disposing of the appeal is final. R.S.O. 1990, c. L.9, s. 22 (3).

Authorized payments only

23. (1) Except in accordance with this Act and the regulations, no barrister and solicitor or student shall take or receive any payment or other benefit in respect of any professional services provided by him or her under this Act or the regulations. R.S.O. 1990, c. L.9, s. 23 (1).

(2) REPEALED: 1994, c. 38, s. 37.

Law Society not liable

24. The Law Society is not liable for any act or omission of any barrister and solicitor who provides professional services under this Act or the regulations. R.S.O. 1990, c. L.9, s. 24.

Privileged communications

25. All communications between the Director, an area director, a member of an area legal aid committee or an assessment officer, on the one hand, and an applicant for or a recipient of legal aid, on the other hand, are privileged for the purposes of the rules of evidence in the same manner and to the same extent as solicitor-client communications. R.S.O. 1990, c. L.9, s. 25.

Contribution by Law Society

26. (1) The Law Society shall contribute to the Fund such percentage of the assessable administrative expenses as is set out in the regulations. R.S.O. 1990, c. L.9, s. 26 (1).

(2)-(4) REPEALED: 1998, c. 26, s. 99 (1).

Note: Subsections (2) to (4) and any regulations applicable to those subsections continue to apply for the purpose of the determination and payment of accounts for professional services rendered pursuant to a certificate issued before April 1, 1996. See: 1998, c. 26, s. 99 (2).

Regulations

27. (1) Subject to the approval of the Lieutenant Governor in Council, the Law Society may make regulations respecting the establishment and administration of a legal aid plan and, without limiting the generality of the foregoing, may make regulations,

(a) prescribing the functions of the Director, the area directors and other persons employed for the purposes of this Act;

(b) prescribing the accounts and records that shall be kept of the transactions of the Fund;

(c) respecting the payment out of the Fund of the expenses of the Law Society attributable to the administration of this Act and the regulations;

(d) designating parts of Ontario as areas for the purposes of this Act;

(e) providing for committees, their composition and organization, and prescribing their functions;

(f) respecting the establishment and functions of the panels and societies mentioned in section 21;

(g) respecting the participation of students in legal aid;

(h) respecting applications for legal aid;

(i) respecting entitlement to legal aid;

(j) respecting certificates and provisional certificates;

(k) respecting the fees and disbursements to be paid to barristers and solicitors for legal aid, including a reduction of up to 5 per cent as described in subsection 26 (2) or (3);

. . . . .

(m) providing for the monitoring and making of recommendations on the fees payable to barristers and solicitors providing legal aid;

(n) providing for the settlement of accounts for professional services under this Act or the regulations;

(o) respecting appeals under sections 14, 16 and 22;

(p) prescribing oaths of office and secrecy and requiring persons, or any class thereof, engaged in the administration of this Act to take and subscribe such oaths or either of them;

(q) respecting the non-disclosure of information furnished by or about an applicant for or recipient of legal aid;

(r) providing for the settlement, recovery and payment into the Fund of costs and other money due to the Fund;

(s) providing for the payment out of the Fund of costs awarded against a person to whom legal aid has been given;

(t) prescribing forms and providing for their use. R.S.O. 1990, c. L.9, s. 27 (1); 1998, c. 26, s. 100.

Designation by Attorney General

(2) The Attorney General may designate persons for the purposes of clause (1) (n).

Application of regulation

(3) A regulation may be limited in its scope and may be retroactive in its operation. R.S.O. 1990, c. L.9, s. 27 (2, 3).

Note: Except for the purposes of the Statutes of Ontario, 1998, chapter 26, section 18, any reference in a statute, regulation or document to “legal aid”, “student legal aid society” or “Clinic Funding Committee” shall be deemed to be a reference to “legal aid services”, “student legal aid services society” and “clinic committee of the board of directors of the Corporation”, respectively. See: 1998, c. 26, ss. 109 (2), 110 (2).

Note: Except for the purposes of the Statutes of Ontario, 1998, chapter 26, section 18, any reference in a statute, regulation or document to the “legal aid plan” or to the “Legal Aid Fund” shall be deemed to be a reference to the system of providing legal aid services under the Legal Aid Services Act, 1998 and to the Corporation, respectively. See: 1998, c. 26, ss. 109 (3), 110 (2).

Note: Subsection 26 (1) of the Act and any regulations applicable to that subsection continue to apply for the purpose of the determination and payment of the amounts owed by the Law Society under subsection 26 (1) in respect of a period ending before April 1, 1999. See: 1998, c. 26, ss. 109 (4), 110 (2).