LAO cash crunch could mean cuts

Members of the legal community are hoping to see balance across the justice sector in next week’s provincial budget, following a tough year for legal aid.

Last fall, Legal Aid Ontario announced that it was $10 million over targeted expenditures after a mid-year review of its financial situation, attributed mainly to additional costs associated with mega-trials and large criminal prosecutions and account payment timelines. In last year’s business plan, LAO chairwoman Janet Leiper also said the organization had used its contingency reserve fund in the past to pay for increased operating costs and it would be depleted by this year.

On March 1, LAO put into place caps on expenditures for defence counsel in mega-trials that were announced last November. Demand within LAO’s Big Case Management (BCM) program has grown by more than 400 per cent in the past six years.

Lenny Abramowicz, executive director of the Association of Community Legal Clinics of Ontario, says while the association is supporting an increase of $28-29 million to legal aid this fiscal year, his recent presentation to the province’s pre-budget committees did not focus on a specific dollar amount, but rather the general point that more funding is urgently needed.

“The bottom line from our perspective is that the provincial government has to kick in more money for legal aid and for the clinics and they have to do it now, this year,” he says.

He adds that last year, there was money in the budget for health care, education, and many other sectors of the justice system, including government lawyers, judges, tribunals, and courthouses, but none for legal aid.
Abramowicz says he does not begrudge the money to any of the other areas, but balance needs to be achieved in the March 22 budget.

“The bottom line is we’re really just asking them to do the right thing, to acknowledge that legal aid is as important a part of the justice sector in Ontario as the other parts are.
“We’ve been told by Legal Aid Ontario that unless money is available this year, we’re not looking at cutting and pruning, we’re talking about service cuts,” he says.

An increase this year would allow the clinics to retain the lawyers that they have been losing, says Abramowicz, as well as attract new lawyers and offer improved services to clients.

At the recent Ontario Bar Association Institute, Ontario Attorney General Michael Bryant said, “It is the upcoming 2007 budget that has understandably captured the attention of many and I can only say, until the budget comes out, stay tuned.”

Bryant noted the provincial government has contributed $25 million to legal aid in the last three years. However, Abramowicz says this has been tied to specific programs and no new money has been directed towards the day-to-day operation of the clinics.

While legal aid says it has not specified the amount of funding that it needs this year from the budget, LAO and the Ministry of the Attorney General formed a working group last year aimed at addressing LAO’s financial situation. The group is working towards developing a financial plan and a strategy to address LAO’s financial pressures for this fiscal year, and over the next two years (2007 to 2009). The goal of the plan is to strengthen legal aid’s financial position and provide the predictable funding it needs to deliver the range of services to meet the needs of low-income Ontarians.

In its submission to the pre-budget committee last month, the OBA also called for a $30-million increase to legal aid’s budget for the 2007-2008 year, and $20 million for each of the two following years.
James Morton, president of the OBA, told Law Times that those amounts are not what they want, but what are needed.

“It’s money that will allow, in our view, legal aid to deal with the big cases and hopefully relax the eligibility criteria so more people can access legal aid,” he says.
He adds that it is a modest request and is consistent with the sort of number that they have been hearing is possible from the attorney general and the government.

He says that the OBA is trying to emphasize that as the provincial government has to deal with the three pillars of education, health care and justice, they are not asking for as much as the other two areas, but simply a reasonable amount of funding.

A $30-million increase in LAO’s budget for next year, for example, would only amount to about one per cent of the increase to the Ministry of Health budget last year, says the OBA.
“It really is a situation where we’re looking for modest amounts to address critical problems,” says Morton. “We think that the government’s listening to it and we think we have a pretty good shot.”

The OBA also brought up the issue of extending non-holding shares in legal corporations to family members with the pre-budget committee, which Morton says ties in with the issue of legal aid.
“Even with the funding that we’re seeking, the legal aid tariff is not going to go up a lot. This is a way that will allow lawyers to make their practices more financially practical even if the legal aid monies don’t go up,” he says.

He adds that if the $30 million in funding doesn’t come in, it does not mean that the sky will fall, but that there will be a slow erosion of the legal aid system, as less counsel take on legal aid cases.

While pro bono can help in the short term, he says it is not an alternative to legal aid or a long-term solution.
“Without this increase or something like it . . . there’s going to be increasing, ongoing systemic problems and eventually that’s going to lead to a real crisis in the system,” says Morton.

“But again, we’re pretty confident the government will come through. They’ve been very responsive to listening to us and they understand that there’s a problem that needs fixing. The trouble is, there’s a lot of people looking for the same money.”

In addition to the working group and the possibility of a funding increase from the budget, other initiatives are also already underway to help address legal aid’s financial situation. Late last year, the government announced it had retained Osgoode law professor John McCamus to update his 1997 Blueprint for Publicly Funded Legal Services study. McCamus will look at regulations, tools to maximize effective administration, good governance of the legal aid system, and alternatives to the current tariff process.

Law Society of Upper Canada Treasurer Gavin MacKenzie released a statement recently, voicing support for sustainable legal aid. The law society noted in particular that it supports McCamus’ appointment and the establishment of the working group as important steps to develop strategies for improving legal aid.

“The law society has recognized that legal aid should be considered a right, not a charitable gift, and that individuals are equal before the law only if they are assured the option of legal representation.

“More than a million Ontarians benefit from Legal Aid Ontario every year, many of them through our excellent clinic system,” said MacKenzie. “But there are still many thousands of individuals in Ontario who cannot afford legal services and do not qualify for support from the system. The income threshold is far too low - if you earn just over $13,000 a year you are too rich to qualify for legal aid.”

While LSUC has not specified how much of an increase legal aid should receive, it notes that the government and legal aid’s cost-saving initiatives, such as using duty counsel more often, have not put the organization on a sound financial footing.

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