An Analysis of Poverty Law Services in Canada

Part One: Poverty law legal aid services

PART ONE: POVERTY LAW LEGAL AID SERVICES

Introduction

Part One of this report presents a descriptive account of the poverty law services provided by legal aid plans in each of the provinces and territories that provide coverage in this area, namely: British Columbia, Alberta, Manitoba, Ontario, Quebec, Nova Scotia, Newfoundland, and the Northwest Territories. Included in this discussion are the structure of legal aid, eligibility criteria, and the types of services offered (public legal education, advice, and legal representation). Legal aid respondents were also asked to consider the strengths and weaknesses of the current system for delivering poverty law legal aid services, notably in terms of what is working well, what is not working well, and any major gaps.

In addition to descriptive information, Part One also presents available quantitative data submitted by legal aid plan representatives on the number and type of poverty law legal aid cases, the cost of services in this area, and the characteristics of poverty law clients. The amount of data included was determined by what respondents were willing or able to collect for the purposes of this project. For example, some provinces do not disaggregate poverty law cases by legal issue, while other jurisdictions can provide some detail on the number of cases dealt with by specific subject. The amount of information available on coverage refusals and client characteristics (sex, age, ethnicity and language) is generally very limited, since most provinces do not track such information. Overall, the data limitations encountered mean that there is considerable inconsistency in what is reported by jurisdictions.

For the provinces in which there is no poverty law legal aid coverage - Saskatchewan, New Brunswick and Prince Edward Island - descriptive information about the structure of legal aid and eligibility criteria is presented. Also included are any comments made by respondents concerning the availability of community resources in the area of poverty law.

British Columbia

Prior to recently announced changes, B.C. had one of the most comprehensive networks of poverty law legal aid services in Canada. Through a network of branch, community, and Native community offices, clients were able to access information, referrals, advice, and legal representation on a wide range of poverty law matters. In the last year, however, the Liberal government has announced a 39 percent funding cut to legal aid over three years, as well as a significant restructuring of the way in which services are delivered. These changes will have a significant impact on available poverty law services (as well as the services delivered in other areas). Indeed, according to some respondents interviewed for this project, "little or no poverty law coverage" will remain in B.C. once the changes have been fully implemented. These individuals predict that, while private bar lawyers and community advocacy organizations may be able to fill some of the gaps that will be left by the withdrawal of legal aid, it is unlikely that this will be sufficient. Private bar lawyers generally lack expertise in poverty law matters, and community groups face staff and funding constraints of their own that have also been worsened by the recent funding cuts.

As a result of the changes to legal aid in B.C., legal aid plan staff members were all very busy with restructuring and service delivery planning. This significantly complicated efforts to access information for the purposes of this project, as staff members lacked the time to provide as much assistance as may have otherwise been offered. In addition, the following discussion provides an overview of the kinds of services and coverage available for poverty law matters in B.C. prior to the recent changes to legal aid. It should be noted that an accurate assessment of the situation confronting low-income residents of B.C. will require further review of the poverty law services that remain after all of the cuts and program changes have been implemented.

Structure of legal aid

Delivery of services

Legal aid is the responsibility of the Legal Services Society (LSS) of B.C. Prior to the recent changes, legal aid services were delivered through a network of branch offices, Community Law Offices, Native Community Law Offices, and Area Directors:

  • Branch offices: Staffed by LSS employees, including lawyers, paralegals, secretaries and intake legal assistants. These offices ensure ongoing community involvement through local advisory committees and/or public planning days.
  • Community law offices (CLOs) and Native community law offices (NCLOs): Independent bodies governed by their own boards of directors drawn from the local community.
  • Area Directors: Private bar lawyers who take family and criminal legal aid applications and refer eligible applicants to lawyers.

The changes to legal aid include the development of a new service delivery model. All offices previously operated and funded by LSS have been replaced by seven regional centres and 24 local agents. In addition, a toll-free call centre serving the entire province is planned for location in the Vancouver region. Applications for legal aid will be accepted at regional centres, by local agents, and through the call centre. The locations of regional centres and local agents were selected on the basis of application and referral volumes, accessibility, cost-efficiency, and proximity to courthouses.

The table below outlines the new structure of legal aid in B.C.

Service Number Function(s)
Regional Centres 7 Take applications and refer eligible clients to lawyers. Provide liaison between LSS and advocacy groups, courts, and the private bar. Co-ordinate regional duty counsel. Direct clients to legal information services. Provide field operations from Vancouver (including tariff processing and legal information services)
Local Agents 24 Take applications and refer eligible clients to lawyers. Provide liaison between LSS, the community, and the private bar. Direct clients to legal information services.
Provincial Call Centre 1 Take applications and refer eligible clients to lawyers. Support and provide backup for regional centres and local agents. Redirect calls to legal information services.

Source: LSS Restructuring Backgrounder, March 8, 2002.

In the past, staff lawyers, paralegals, and private bar lawyers were all involved in the delivery of legal aid services in B.C. In the poverty law area, however, staff lawyers and paralegals delivered the vast majority of assistance. Under the new restructuring plan, only a minimal number of staff lawyers will be employed at regional centres "to provide services in areas where LSS has difficulty making referrals to the private bar."[3]

Also prior to the changes, there were four levels of poverty law services in B.C.: mandatory services, Board-mandated services, community discretionary services, and non-funded services (Draft coverage policy, Dec. 2000).

Mandatory services are those required by section 3(2) of the Legal Services Society Act. For the purposes of poverty law, the most relevant section is 3(2)(d), which states that legal services must be available to qualifying individuals with a legal problem that threatens

  1. the physical or mental safety or health of the applicant's family;
  2. the applicant's ability to feed, clothe, and provide shelter for himself or herself and his or her dependents; or
  3. the applicant's livelihood.

Board-mandated services are those that fit within the objectives of section 3(1)(a) of the Act, and are therefore provided at the discretion of the Board of Directors. Section 3(1)(a) states that the objects of the LSS are to ensure that "services ordinarily provided by a lawyer are afforded to individuals who would not otherwise receive them because of financial or other reasons."

Community discretionary services are services that may be provided if funding permits and if the services are in keeping with the poverty service needs of the community as set out by the Community Board of Advisory Committee. According to a draft 2000 policy statement on coverage, community discretionary services should constitute no more than 10 percent of the time of poverty law advocates.

Non-funded services includes all other services not discussed above, for both individuals and groups. Since there is no funding for these services, they are generally considered to be uncovered.

Eligibility for legal aid

For all areas of legal aid, applicants must have a net household income and assets below established limits to be financially eligible for assistance. Intake workers assess an applicant's financial status to determine net household income. Some income sources are excluded (e.g., the Child Tax Benefit), and some expenses are deducted (e.g., child care costs). There are five asset categories: family home, other real property, vehicles, business assets, and personal property.

  MONTHLY INCOME ASSETS
Household Size All Non-criminal Cases1.* (including appeals) Personal Property Exemption (all cases)
1 $1,002 $2,000
2 $1,504 $4,000
3 $1,755 $4,500
4 $1,941 $5,000
5 $2,140 $5,500
6 $2,326 $6,000
7 or more $2,486 $6,000

1.* Income limits are slightly lower for criminal cases (including appeals).
Source: LSS 2000-2001 Annual Report.

Applicants who meet the financial eligibility criteria must also have a legal issue for which there is legal aid coverage available (the range of coverage criterion). In general, legal aid coverage will always be provided if there is a risk of imprisonment, confinement, or removal.

In addition to financial eligibility and range of coverage criteria, poverty law applicants are evaluated on the basis of merit. The intent of this merit testing procedure is "to ensure that poverty law resources are being utilized effectively and are being appropriately directed to meritorious cases likely to result in a substantial benefit for a client or an identifiable group of disadvantaged people" (Merit Testing Policy, Nov. 2000).

Intake staff usually make initial decisions concerning merit as part of the coverage assessment process. Cases that obviously lack merit at the outset are refused, and the applicant may be referred to another agency or given summary information. Intake staff are instructed to use a liberal interpretation of merit, and to err on the side of the client by issuing a referral to poverty law staff for more in-depth merit testing. It may not always be possible to make a firm decision about merit after a single interview with a client. Several hours of work may be necessary before a final merit determination is made. It is also possible for merit to be re-assessed as work on a case progresses, particularly if circumstances affecting merit change.

Several tests are used in assessing the merits of poverty law cases.

Reasonable likelihood test
Given the fact and the law, there must be a reasonable likelihood that the client will be successful.
Substantial benefit test
There must be a reason to think that a successful resolution will result in a substantial benefit for the client or for an identifiable disadvantaged group. Cases may offer a substantial benefit even if there is no monetary gain.
Public policy grounds
Services may be provided even if no benefit for the client is anticipated, if the service is intended to curb abusive power by government or person in authority, or to "keep the system honest."
Last resort test
Clients are to be diverted to other appropriate agencies that are willing to assist.
Limited referrals and re-assessment of merit
If a firm decision about merit has not been reached, a referral is accepted on a limited basis only. If a full referral is appropriate, merit is re-assessed on a regular basis to confirm the level and range of service provided.

Types of services provided for poverty law matters

The following chart describes the types of services available for poverty law in B.C. prior to the recently announced changes. Each of these service types are explored in more detail below, including charts presenting the data collected from legal aid respondents for the purposes of this project. Data for B.C. covers the number of full representation and intake cases across a range of poverty law issues, as well as the total number of summary advice clients. In addition to being broken down by legal issue, full representation cases are also disaggregated by service delivery mechanism (staff lawyers versus paralegals). A limited amount of data was provided on the cost of full representation and intake services, but separate cost figures are not available by legal issue. No data is available on the number of people refused coverage for poverty law matters in B.C., or the personal characteristics of poverty law clients.

Type of Service Provision of this Service
General advice or assistance Yes. This may include referring clients to other organizations or providing them with self-help or educational materials.
Legal advice or assistance Yes. This may include advice on relevant legal processes/ options or direction on a specific client case.
Legal Representation Yes. Staff lawyers and paralegals provide the majority of legal representation in poverty law issues.
Public Legal Education Yes. Legal aid produces a wide range of public legal education documents, hosts workshops and other educational sessions, provides grants to community organizations, and runs the Law Line information service.
Advice

There are two levels of advice available to poverty law legal aid clients in B.C.: intake cases and summary advice.

Intake cases include the provision of self-help remedies, public legal education documents, and referrals to other agencies. Applicants do not have to be financially eligible to receive this assistance. According to a December 2000 draft policy statement on "Levels and Range of Service Delivery" in the poverty law area, it is recommended that clients be "encouraged and required to use self-help remedies as long as doing so will not substantially prejudice their prospects of success." The factors used in assessing whether self-help remedies are appropriate for a particular client include: the type of legal proceeding; the complexity of the case; the client's education, experience, vulnerability, and fluency in English; whether the opposing side is represented or experienced in court matters; and the potential benefit to be derived from the proceeding or the risk to the client of not proceeding.

Summary advice involves up to three hours of assistance, and may be provided by intake staff or poverty staff (paralegals and lawyers). The draft policy statement on levels and range of service delivery states that when intake staff are unable to provide summary advice, they must seek the opinion of poverty staff lawyers by completing a referral or by requesting that summary advice be delivered by a lawyer. The draft policy also states that summary advice should normally be restricted to situations where:

  • The client is extremely vulnerable (in rare cases, such clients may be given summary advice even if they are financially ineligible).
  • The legal problem will likely be prevented, substantially reduced or solved by allotting less than three hours of poverty law advocates' time to it.
  • The community has indicated that such clients be assisted to the greatest extent possible.
  • Staff are familiar with the legal issue and can assist with minimum preparation or research time.

In circumstances where it appears that a case will require more than three hours of assistance to resolve, a referral is issued. Referrals should only be issued if the client is financially eligible, the issue is covered by legal aid, the case appears to have merit, and staff are available to take the case. The minimum level of service offered through a referral is summary advice (including a review of facts and legal issues, advice and an opinion about the merits of the case, and information about LSS coverage criteria and appeal procedures).

Number of Summary Advice and Intake Cases in B.C.
Fiscal Year Applications for Legal Representation Intake Cases Summary Advice Cases
2000-01 9,383 22,806 2,142
1999-00 9,704 21,136 2,123

Source: LSS 2000-2001 and 1999-2000 annual reports.

As the above table makes clear, intake cases are a key component of the work done by legal aid in the poverty law area, far exceeding the number of summary advice cases and the number of applications for full representation (as will be outlined further below). Unlike the number of legal aid applications, which declined between 1999-2000 and 2000-2001, the numbers of intake and summary advice cases have increased.

The following table illustrates that non-tariff family law, non-tariff criminal law, and administrative issues made up almost half of poverty law intake cases in 2000-2001. After these three areas, income assistance, income tax and GST, debtor/creditor, housing, and wills/estates, made up 28 percent of the intake caseload.

Distribution of Intake Cases by Type of Poverty Law Issue, 2000-2001
Poverty Law Issue Number of Intake Cases Percent
Family: non-tariff 4,370 19.2
Administration3.* 3,608 15.8
Criminal: non-tariff 2,819 12.4
Income Assistance 1,495 6.6
Income tax and GST 1,325 5.8
Debtor/Creditor 1,315 5.8
Housing 1,166 5.1
Wills/estates 665 5.1
Notarizing 648 2.8
Contract/consumer 606 2.7
Torts/negligence 534 2.3
Employment 488 2.1
CPP/OAS 465 2.0
Prisoners' law 379 1.7
Mental health, adult guardianship 318 1.4
Workers' Compensation 292 1.3
Immigration: non-tariff 231 1.0
Criminal injury compensation, victim assistance 207 0.9
Employment Insurance 206 0.9
Bankruptcy 179 0.8
Native rights 177 0.8
Human rights: non-tariff 160 0.7
Professional services complaints 111 0.5
Insurance 102 0.4
Other 530 2.3

3.* Administration includes a variety of services, including the provision of information about legal aid to potential applicants, recording a change of counsel on a file opened at another office, or swearing an affidavit for a client whose file was opened at another office.
Source: 2000-2001 LSS Annual Report.

The cost of providing intake services in the poverty law area in 2000-2001 was $785,357. This constituted 8.4 percent of the total cost of all poverty law services ($9.335 million).

Representation

Legal representation is available in a wide range of poverty law matters. As noted above, both staff lawyers and paralegals provide legal representation in poverty law matters in B.C. Private bar lawyers tend not to be involved in poverty law, so there is no legal aid tariff for this kind of work. Occasionally, private bar lawyers may provide some poverty law assistance on a pro bono basis.

According to the draft policy statement on levels and range of service delivery, clients requiring more than the three hours of assistance are referred to poverty law staff on either a full representation or less-than-full representation basis. The kinds of activities provided for full representation include research, written submissions, negotiation, interviewing witnesses, and oral advocacy at hearings. The rationale for the provision of full representation is to "level the playing field" among poverty law clients and the other parties to a dispute, insofar as the former are less likely to be able to independently access legal counsel than the latter. Full representation is offered when a case has merit, there is a substantial benefit at stake, and the prospects for success will be significantly prejudiced in the event of self-representation. Prejudice is assumed where the client has special needs that impede communication, where there is an imbalance of power, or where an important principle is raised that may promote remedies for other members of a disadvantaged group. As a general rule, the appropriate question to ask when determining whether representation is needed is: "Would a reasonable person of modest means pay for representation, and take similar steps to protect their own interests, if he/she were in the client's shoes?"

Less-than-full representation may be extended when, after intake, new circumstances arise that make it inappropriate to spend more than a few hours on a case. In these circumstances, a client could be offered self-help materials, summary advice, and procedural assistance that may be necessary for them to address the problem themselves.

The following table outlines the number of full representation poverty law cases (referrals) handled through different service delivery mechanisms for the last two fiscal years. This table indicates that paralegals, by far, take on the most poverty law cases, followed by staff lawyers. Private bar lawyers are only minimally involved in delivering services in the poverty law area.

Demand for Poverty Law Legal Aid Representation
Fiscal Year Poverty Law Applications Number of Referrals to:
Staff Lawyers Private bar lawyers Paralegals Total
Number Percent Number Percent Number Percent
00-01 9,383 1,659 27.9 305 5.1 3,984 67.0 5,948
99-00 9,704 1,659 27.2 262 4.3 4,181 68.5 6,102

Source: LSS 2000-2001 and 1999-2000 annual reports.

In 2000-2001, 11.8 percent of all cases referred to legal aid staff or private bar lawyers were for poverty law matters. This is unchanged from the previous year. According to the table below, the two largest issues within the poverty law legal representation caseload in 2000-2001 were income assistance (B.C. Benefits) and housing, at 1,816 and 713 cases respectively. The majority of legal issues within the poverty law field had 250 or fewer cases in 2000-2001.

Distribution of Referrals by Type of Poverty Law Issue, 2000-2001
Issue Number of Intake Cases Percent
B.C. Benefits 1,816 1,816
Housing 713 713
Disciplinary Charge4.* 466 466
Debt and Collections 440 440
Workers' Compensation 250 250
Referrals4.* 229 229
CPP/OAS 224 224
Mental health/adult guardianship 214 214
Torts/Negligence 213 213
Employment Insurance 192 192
Family: non-tariff 167 167
Parole suspension/revocation4.* 133 133
Administrative segregation4.* 130 130
Wills/Estates 126 126
Employment 119 119
Other 1,574 1,574
Total4.$ 7,006

Source: LSS 2000-2001 Annual Report.

The chart below indicates that, for all of the issues listed except Workers' Compensation, paralegals take on the majority of full representation cases. This is particularly noticeable with respect to income assistance, CPP/OAS, and housing matters, where paralegals handled 70 percent or more of the full representation cases in 2000-2001.

Poverty Law Cases by Issue and Service Delivery Mechanism, 2000-2001
Poverty Law Issue Number of Full Representation Cases Service Delivery Mechanism5.*
Staff Lawyers Paralegals
Number Percent Number Percent
Income Assistance 1,816 393 22 1,439 79
Housing 713 216 30 498 70
Debt and collections 440 190 43 256 58
Workers' Compensation 250 154 62 97 39
CPP/OAS 224 64 29 161 72
Employment Insurance 192 78 41 117 61

5.* The number of full representation cases for each legal issue as broken down by service delivery mechanism does not add up to the same totals indicated in the "Number of Full Representation Cases" column. However, this is the information reported in the data collection charts distributed to legal aid.
Source: Data collection charts for B.C. and the author's calculations.

The only information collected on the cost of delivering full representation poverty law services is overall figures. In 2000-2001, legal aid representatives reported that the cost of providing full representation in poverty law cases was $8,550,381. This constituted 91.6 percent of the total cost of delivering poverty law services in B.C. ($9.335 million).

Public legal education

Ensuring that "education, advice and information about the law are provided for the people of British Columbia" is an objective in the mandate of the LSS. Accordingly, LSS staff in the Legal Resource Centre, the Public Legal Education and Publishing programs, and the Native Programs Department provide a wide variety of services that improve public access to and education about the law. These include the publication and distribution of education and self-help materials, hosting workshops and training sessions, and assisting people with legal questions.

LSS notes that the public legal education materials and activities of staff fill a number of key needs. In particular, they provide staff with updated legal information and resources to use in the provision of services; they provide the public with information and/or self-help materials that assist individuals with their legal problems; and they help new arrivals to Canada to learn about the legal system and access legal aid services.

Program Description of Activities Cost Percent of Total LSS Expenditures
Publishing Produce plain language materials in a variety of languages and operate a distribution system for all LSS publications. $435,612 0.5
Public Legal Education Give small grants to community groups, legal aid offices, and LSS-funded agencies to develop projects and materials that explain the law and legal system. $571,361 0.7
Native Programs Public Legal Education Provide public legal education services - primarily in the form of publications and small grants - in areas reflecting the unique needs of B.C.'s Aboriginal peoples. $417,249 0.5
Library Programs (Legal Resource Centre) Librarians provide research and reference services to LSS staff and the public, and alert others about legal changes. The Law Line - a telephone information and referral service - is also run through the Legal Resource Centre. $693.063 0.8

Strengths and Challenges of the Poverty Law Legal Aid System

The following section presents respondents' comments concerning what is working well, what is not working well, and any key gaps, within the current system for delivering poverty law services in B.C.

Problem areas
Cuts to legal aid

The overarching theme in the respondents' comments about problem area for the poverty law system in B.C. was the cuts recently announced. Representatives of both LSS and the Association of Community Law Offices noted that these changes will essentially eliminate poverty law advocacy services at the local level, whether in the form of summary advice, brief services, or formal representation. In their words, after the cuts there will be "nothing left" of the poverty law system.

The respondents predicted that the minimal amount of poverty law funding that remains will likely be targeted to producing public legal education and self-help materials. However, the availability of such materials - even when they are accessible and in plain language - was identified as insufficient. As a LSS respondent put it, people capable of helping themselves were already doing so, and therefore remaining outside of the legal aid system. Legal aid largely provides services only to those individuals unable to navigate the system on their own.

Private bar lawyer involvement in poverty law

Prior to the cuts, many Community and Native Community Law offices organized pro bono clinics as an additional avenue for people to access summary advice and brief services in poverty law matters. The LSS respondent noted that this is a function that may be taken up by private bar lawyers, insofar as the LSS and the Bar Association are trying to establish a "pro bono society." This society would encourage private bar lawyers to do pro bono work in poverty law (and other issues), while at the same time ensuring some level of quality assurance. However, the LSS representative noted that it is uncertain whether such an initiative would be enough to "take up the slack" that will be left by the decrease in legal aid resources. This is particularly the case in the poverty law area, given that private bar lawyers tend to have little interest in, or knowledge of, these legal issues.

Success stories
Improvements to the legal aid system prior to the announced changes

Prior to the announced changes to legal aid, a LSS respondent commented that the quality of the poverty law system in B.C. had been "getting better all the time." Poverty law staff had produced a poverty law manual to provide guidance on decisions about merit and coverage, in order to ensure that those most in need of help would be assisted first - a key consideration when operating on a limited budget. According to respondents, opportunities had been developed for in-house training for poverty law advocates and staff, and legal aid had developed a unique resource in its "paralegal practitioners" in area and community offices. Despite the fact that these paralegals' skills and knowledge in the area of poverty law are considerable, they will likely have a difficult time finding work once poverty law legal aid services have been eliminated. The private bar simply does not provide many services in poverty law cases, given the limited opportunity to make money from this work. With respect to the poverty law system as a whole, however, the elimination of paralegal positions will be a "huge loss" of resources.

Community orientation

A respondent from LSS noted that the community orientation of legal aid's Community and Native Community Law offices has been a success story. The community-based boards fulfil a networking function, help in the formation of advisory bodies to address service gaps and strategies, and assist in bringing the resources of the community together to address the needs of the community. In this respect, the community boards not only play a key role in the effective delivery of legal aid services, but have also contributed to general community development.


[3] Legal Services Society news release. "Legal Services Society Announces New Office Locations," March 8, 2002.

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