The legal community is thrilled the provincial budget is giving legal aid funding a boost but some counsel also say there should be a bigger increase in the tariff paid to lawyers.
The budget allocates $15 million to Legal Aid Ontario in 2007-2008 and a total of $51 million over the next three years. The announcement comes months after LAO said it was $10 million over targeted expenditures after a mid-year review, attributed to additional costs associated with megatrials, large criminal prosecutions, and account payment timelines.
In last year’s business plan, LAO chairwoman Janet Leiper also said its contingency reserve fund would be depleted by this year. In the lead up to the budget, many groups also made pre-budget submissions to the provincial government stressing the urgent need for more legal aid funding.
Ontario Attorney General Michael Bryant told Law Times this “significant surge” in legal aid funding is partly due to the government’s balanced budget.
“In our first three years, although we had increases to legal aid funding every year, we were operating under even more challenging economic times, and so some of this is reflected in the patience that was required in the first three years,” he says.
“I think we achieved success in our first three years and this year, obviously this significant surge will allow for long-term stability and stable increased access to justice,” says Bryant.
Leiper says the announcement is “Good news for the people who provide legal aid services, it’s good news for the people who rely on legal aid services, and we’re very excited that the government has recognized both of these factors in this announcement.”
Budget documents say the additional funding will mean a five-per-cent raise in the hourly legal aid tariff rate for Ontario lawyers - the first raise in four years - increasing it to about $94.50 an hour. In addition, says Leiper, there is mention of funds for assisting families with access to frontline family law services. And she says she expects there will be some flexibility for providing additional resources for clinic services, but more details will be known when the estimates come out.
Although the amount given to legal aid in the budget is less than the $30 million this year and $20 million for each of the next two years that the Ontario Bar Association wanted, OBA president James Morton says the association is satisfied.
“We think that this is sufficient money for legal aid to get over the crisis it was facing and to move forward and expand the coverage somewhat,” he says.
County and District Law Presidents’ Association chairman Paul Kowalyshyn says CDLPA sees more funding as a significant step forward.
“By increasing the amount of money that’s available now, we’re very hopeful that the people, the working poor who weren’t qualifying over the last 10 or 11 years, are now going to be able to qualify,” he says.
“We’re hopeful that this is going to encourage lawyers to continue to be involved in an area of their practice that was becoming unaffordable to continue.”
Louise Botham, president of the Criminal Lawyers’ Association, says the organization is hopeful the new funding will allow LAO to increase the money available for disbursements and to pay lawyers for cases that exceed the standard hours.
With respect to the tariff, Bryant says LAO came up with the five per cent figure independently, and the government accepts it as a minimum increase. Further increases are on the table, he adds.
“We’re committed to an increase of five per cent and whether or not it increases either this year or in future years is something that I do want to talk to people about now that we have the budget in place.”
Leiper says, “When the tariff rate has been increased in the past by five per cent, the number of new lawyers joining the panel increases. We see five per cent as an excellent investment.”
However, criminal lawyer Rosalind Conway says some members of the Ottawa defence bar are disappointed with the increase. She says it seems to be a 2.35-per-cent hike, not five per cent, when taking into account the fact that senior counsel who do legal aid work are now paid $92.34 an hour.
“Even five per cent is disappointing, but it doesn’t look like it’s really five per cent,” she says.
She adds that the previous increase, in 2003, was actually 10.25 per cent, as there was a five-per-cent raise compounded by a further five per cent.
“Given that the last increase was in 2002, inflation has eaten that away, so this is not a real increase. It doesn’t appear to keep pace with inflation,” she says.
Morton says the OBA is glad there has been a tariff increase, as “It’s not a lot of money, but we feel it’s symbolically very important and if that can be repeated over time, it will slowly move the tariff to something that is closer to the economic realities.”
What is more important about the tariff increase, says Morton, is the message that the government is concerned about maintaining lawyers in legal aid and has recognized that the tariff needs adjusting.
Botham says the CLA is still going to press for ongoing review of the tariff and a mechanism to ensure the tariff keeps pace with the cost of living.
“Although we’re glad to see [the increase], it still means that what lawyers are getting for doing legal aid work hasn’t really kept pace with the cost of living,” she says, noting that the tariff has gone up only 15 per cent since 1987.
In another initiative that may impact the tariff, last year the ministry retained Prof. John D. McCamus to update his 1997 Blueprint for Publicly Funded Legal Services, with a focus on examining alternatives to the current tariff process, including regular reviews to set and adjust the hourly rate paid to lawyers doing legal aid work as well as on maximizing effective administration and good governance of the legal aid system.
According to a recent report from Statistics Canada, Canada’s legal aid plans spent $673 million on delivering legal aid services in 2005-2006, up nine per cent from the previous year after inflation. Prior to last year, spending had been relatively stable for three years. Applications for legal aid assistance were also up three per cent to 780,000, with 477,000 of those applicants approved for full legal aid service. Governments are also still responsible for as much as 90 per cent of total revenues for legal aid funding across the country.