An Analysis of Poverty Law Services in Canada

Part One: Poverty law legal aid services (continued)

Part One: Poverty law legal aid services (continued)

Alberta

Structure of legal aid

Delivery of services

The Legal Aid Society (LAS) is responsible for the administration of legal aid in Alberta. Legal aid is delivered through a mixed model of service delivery. Private bar lawyers provide the majority of legal aid services in what is termed the "judicare" model: lawyers willing to act for legal aid recipients are retained on a certificate basis according to established tariff levels. LAS staff lawyers in Edmonton, Calgary, Red Deer, and on the Siksika First Nation also provide some legal aid services. Some staff lawyers work on a certificate basis (rendering shadow accounts based on tariff levels), while others function as full-time duty counsel. In the poverty law area, staff lawyers handle the majority of cases.

At present, there is only one paralegal employed by the LAS, as part of an immigration and refugee law pilot project. The pilot is designed to test the efficacy of a newly established paralegal position: the "immigrant services co-ordinator." The co-ordinator has responsibility for providing procedural and administrative assistance to private bar lawyers, and for such non-tariff matters as referrals, procedural advice, and assistance with filling out forms.

Eligibility for legal aid

Eligibility for legal aid in Alberta is determined on the basis of financial and substantive (merit) considerations.

Financial eligibility is determined on the basis of gross family income (including all monies received by the family before deductions) and accumulated assets. Gross income figures are compared to a fixed set of financial guidelines, as reflected in the chart below.

Number of Persons in the Family Family Annual Allowable Gross Income Monthly Allowable Gross Income Contribution Range
1 $13,900 $1,158 - 1,792
2 $16,800 $1,400 - 2,275
3 $22,600 $1,883 - 2,450
4 $25,200 $2,100 - 2,717
5 $28,900 $2,408 - 2,867
6 $31,500 $2,625 - 3,200
7+ $34,700 $2,892 - 3,500

Source: Legal Aid Society of Alberta 2001 Annual Report.

Applicants whose family income exceeds the relevant financial eligibility cut-off may be extended coverage on a contributory basis. This means that legal aid coverage may be granted on the condition that the applicant pays a certain portion of his or her fees.

If a legal aid applicant is found to be financially eligible, substantive eligibility is considered. LAS provides that applicants:

...may be granted legal aid in a civil matter where that matter is subject to the jurisdiction of the Courts, and has merit or a likelihood of success, or both. The case must also be one which a reasonable person of modest means would commence or defend and the circumstances at the time of application must warrant coverage. The legal costs of commencing or defending the action must be reasonable when compared with the relief sought (LAS 2001 Annual Report).

To assist in the determination of merit or likelihood of success, a legal opinion may be requested. Lawyers are issued opinion certificates for this purpose, usually for up to three hours of work. The lawyer will then report back to the legal aid office regarding action that should be taken (if any). Technically, an applicant has to be financially eligible to receive an opinion, but one respondent noted that, in some cases, an opinion may be provided to persons who are slightly over financial eligibility criteria. This decision is left up to the discretion of the lawyer involved. If a legal aid applicant is confronted by a pressing deadline, a LAS respondent noted that legal aid coverage may also be extended prior to the determination of substantive eligibility.

Types of services provided for poverty law matters

In general, there is very little coverage for poverty law issues in Alberta. Initially, one LAS respondent said that poverty law issues were not technically covered at all, but that some issues in this area might, in fact, be addressed. Another respondent suggested that poverty law cases often are only covered if the case involves an appeal of a decision handed down through a hearing or tribunal process. In general, however, poverty law is not thought of as a separate category for which legal aid coverage is available (as are, for example, criminal law and family law).

The following chart describes the types of services available for poverty law in Alberta. Each of these service types is explored in more detail below, including in charts presenting the data collected from legal aid respondents for the purposes of this project. The only data collected regarding poverty law services in Alberta are the number of legal aid applicants, across a limited range of poverty law issues; the number of applicants granted coverage; and the number refused coverage. General data on the number of civil legal aid certificates issued in the 2000-2001 fiscal year has also been included. No specific information was collected on the number of legal opinions provided on poverty law matters, or the cost of poverty law services. A respondent reported that no data is available on the characteristics of poverty law clients.

Type of Service Provision of this Service
General advice or assistance No.
Legal advice or assistance No. Some advice may be provided at the opinion stage, but there is no formal program in place.
Legal Representation Yes. This is not a primary component of the work done by legal aid in Albertb.
Public Legal Education No.
Advice

There is no formal structure or process through which legal aid applicants or clients can receive general or legal advice on either an informal or formal basis. Some summary advice may be provided during the opinion stage of a case, insofar as the lawyer involved may advise a person regarding how to proceed with an issue. However, this is not an established system that operates consistently for all legal aid applicants. In addition, applicants technically have to be financially eligible to receive a legal opinion, so while some advice may be available through this channel, it is not an option that is open to all persons.

Representation

As noted above, staff lawyers provide legal representation in poverty law issues. LAS employs only a limited number of staff lawyers, since the majority of work is done by private bar lawyers on a certificate basis, according to established tariff levels.

In Alberta, legal aid is typically broken down into three categories: civil, criminal, and young offender. A wide variety of issues fall into the "civil" category, one of which is poverty law. In 2000-2001, 9,412 certificates were issued for civil cases - 28 percent of all legal aid certificates issued for this fiscal year. The percentage of civil certificates has remained relatively constant over the last five years, increasing by only 2 percent since 1996-1997.

There is a limited amount of data available on various sub-components of the civil legal aid category. However, the table below does indicate that poverty law is a very small part of this category, with only 49 applicants being granted coverage in 2000-2001. This constitutes only 0.5 percent of all civil law cases in that fiscal year. Of these 49 successful applicants, more than half concern workers' compensation issues.

Distribution of Cases by Poverty Law Issue, 2000-2001
Poverty Law Issue Number of Applicants Number Granted Coverage Number Refused Coverage
Workers' Compensation 61 30 31
Social Assistance Board 13 4 9
Employment Income Appeals 2 1 1
Open Ended Tribunals1.* 34 14 20
TOTAL 110 49 61

1.* The types of issue that have been covered under the open-ended tribunal code are: appeals of CPP decisions; appeals of Human Rights Commission decisions; appeals of denial of benefits under provincial legislation (AISH); appeals of decisions from the Student Finance Board; appeals of agencies refusing to register certificates for specialty training; appeals to the Crimes Compensation Board; appeals to the Landlord Tenant Board; appeals to the Teacher Certificate Board; and appeals to the School Board. Source: Data Collection charts for Alberta.

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 Alberta.

Problem areas
Need for legal assistance versus social support

According to one respondent, assistance with poverty law issues can be delivered just as effectively - if not more effectively - by social workers than by lawyers. When a problem is legal in nature, legal aid may be the appropriate body to provide assistance (for example, when someone is denied benefits to which they are arguably entitled). However, many poverty law matters have their roots in broader social issues, and in these instances the law is not the right platform on which to seek a resolution (for example, challenging the adequacy of benefit levels). This LAS representative went on to note that the involvement of social workers in the poverty law area is one reason why legal aid does not provide more comprehensive assistance. In short, there are already other agencies and people doing this work.

Coverage for landlord/tenant matters

A representative of legal aid identified the lack of coverage for landlord/tenant disputes as a potential gap in the poverty law system. However, this respondent went on to note that it is not obvious that this is an area that legal aid should cover, given that the legal system may not be the best vehicle through which to deliver assistance to people with housing problems. If someone is facing eviction because they do not have enough money to pay their rent, the respondent suggested that "legal assistance is not really the answer." Even if a lawyer were successful in getting the person back into their apartment temporarily, it would not solve the underlying problem. The law is not the right platform to adjudicate issues like rental costs, the adequacy of benefit levels, and the like.

Visibility of legal aid services

A respondent from legal aid noted that it is difficult to get people to understand that legal aid is a resource to which they can turn. People tend to think that there is nothing they can do about a situation - that there are no resources for assistance. Legal aid needs to be made more visible in the community through the development of a legal education program. The respondent also suggested that community agencies sometimes have "a vested interest" in not informing their clients about the assistance available through legal aid. These organizations want "to make it as easy as possible for their clients, and often think that bringing a lawyer in would complicate the situation." As a result, they do not inform clients about legal aid.

Success stories
Legal aid coverage

Although there is little legal aid coverage provided in the poverty law area, one representative of legal aid maintained that Alberta's poverty law system is functioning fairly effectively. While the legal aid system does not identify poverty law as a separate coverage category, applicants are provided with coverage if their case has merit and they are financially eligible. As this respondent put it, legal aid "just covers the issues that people come in with."

This respondent further noted that legal aid tends to stay away from some poverty law issues because they are just as much social as legal problems, and, accordingly, social workers can provide just as much assistance as lawyers. Since there are community resources in place to provide assistance in these kinds of situations, legal aid has not extended its services. When eligible applicants have issues that are specifically legal in nature, legal aid will extend coverage. If the assistance requested is more a matter of helping people learn about the legal system or apply for a certain benefit, social or community workers are well equipped to handle the matter.

Boyle Street Community Co-operative

In light of the above comments on the social dimension of poverty law, a representative of legal aid suggested that the Boyle Street Community Co-op exemplifies the model that should be pursued for delivering services to low-income people. The Co-op provides assistance in an integrated manner in a wide range of areas, including health care, income assistance, addiction, child care, temporary shelter, and the like. This organization can assist people in a more comprehensive manner, while at the same time referring people to legal aid for actual legal problems.

Saskatchewan

Structure of legal aid

Delivery of services

The Legal Aid Commission (LAC) administers legal aid in Saskatchewan. Staff lawyers deliver the majority of legal aid services, along with legal assistants and support staff. Private bar lawyers may be used if it is determined that private representation would better serve the client, or if a client is charged with an offence punishable by life imprisonment.

Eligibility for legal aid

Eligibility for legal aid is determined on the basis of three criteria: financial, range of services, and professional merit. Both eligibility officers (non-lawyers) and legal aid staff lawyers are responsible for making decisions about the eligibility of applicants.

Applicants are financially eligible for services if they are receiving income from social assistance (from the province or the Department of Indian Affairs and Northern Development), if their financial resources are at social assistance levels, or if the costs of obtaining a private lawyer would reduce their financial resources to social assistance levels. Applicants not receiving social assistance may be asked to contribute to the costs of their legal representation.

The question of range of services pertains to whether or not the legal issue in question is one for which legal aid provides coverage. For example, there is no formal coverage for poverty law or immigration and refugee law issues in Saskatchewan, so applicants with legal issues in these areas would not be considered eligible for legal aid. The only civil law area for which legal aid is provided is family law.

With respect to evaluating the professional merit of an applicant's case, some or all of the following factors may be considered:

  1. Whether it is a case that a reasonable person of modest means would commence or defend;
  2. Whether the legal costs are reasonable compared to the relief sought;
  3. The seriousness of the legal or economic outcomes;
  4. The potential benefits to the client;
  5. Whether there is a possible defence to the charge;
  6. Whether there is a reasonable likelihood of success;
  7. Whether the client has been co-operative (keeping appointments, keeping in touch with the legal aid office after a move, etc.); and
  8. Whether the client has accepted reasonable professional advice from his or her assigned lawyer.

Evaluation of professional merit continues throughout a case. In other words, consideration is given to some or all of the factors listed above as long as the client is receiving representation through legal aid. Staff lawyers are the only persons responsible for making decisions about professional merit. Legal aid applicants who initially meet with an eligibility officer may be accepted on the basis of financial and range of service criteria, with merit to be addressed when the client subsequently meets with a lawyer.

Types of Services Provided for Poverty Law Matters

As previously stated, there is no coverage for poverty law matters in Saskatchewan. Poverty law cases were formerly covered on a discretionary basis, but the scope for such discretion has since been eliminated. In addition, one respondent noted that legal aid staff lawyers are explicitly directed not to provide advice on legal issues outside of their area of expertise. The majority of persons with poverty law problems are, instead, referred to other organizations, including the Rentalsman Office, the Workers' Compensation Board, and the provincial Ministry of Social Services.

One respondent from the Saskatchewan legal aid plan insisted that, with the elimination of any opportunity for discretionary coverage of poverty law matters, there is no opportunity for assistance in this area on an ad hoc basis. However, a different respondent suggested that applicants who appeal a denial of legal aid coverage for a poverty law case may be successful in exceptional circumstances. The nature of the circumstances would depend on the case, but such an occurrence would be a very rare. Overall, there is no system for delivering poverty law legal aid in Saskatchewan.

Manitoba

Structure of legal aid

Delivery of services

In Manitoba, the Legal Aid Services Society (LASS) is responsible for delivering legal aid to provincial residents, through a mixed staff lawyer and private bar lawyer (judicare) model. Both staff and private bar lawyers operate on a certificate basis, and clients are permitted to choose representation from either source. If a legal aid client does not choose a lawyer, one is appointed by LASS area directors. Area directors are also responsible for reviewing legal aid applications, assessing partial payments, and issuing certificates.

In the poverty law area, staff lawyers and paralegals deliver the majority of services, although private bar lawyers do take on some poverty law work. In addition to certificate-based full representation, some clients may receive assistance from staff lawyers on a "certificate-equivalent" basis. This classification permits coverage to be extended to clients known to be eligible for legal aid without the completion of the entire application/eligibility determination process where the legal issue is such that had this person gone to a private bar lawyer, a certificate would have been issued. Legal aid staff lawyers may also provide advice to poverty law clients on an informal or drop-in basis.

The majority of poverty law work is done through the Poverty Law Office in Winnipeg.

Eligibility for legal aid

For certificate cases, eligibility is determined according to financial and merit criteria. There are no eligibility requirements for the informal or drop-in services provided by legal aid.

Financial eligibility guidelines consider family income and household size in the development of income thresholds. However, persons earning more than the guidelines may still be eligible for legal aid based on consideration of other factors. For example, legal aid may extend coverage to persons with income in excess of the financial eligibility guidelines on a deferred repayment basis.

Applicants are eligible for legal aid in one of three ways: without having to pay anything (fully eligible); having to pay an agreed amount (agreement to pay); or having to pay the full cost of the case and a program fee (expanded eligibility). Some expenses - such as maintenance or child care - are deducted from income. Assets are also considered.

Family Size Fully Eligible (annual gross) Agreement to Pay (annual gross) Expanded Eligibility (annual gross)
1 $14,000 $16,000 $23,000
2 $18,000 $20,000 $27,000
3 $23,000 $25,000 $31,000
4 $27,000 $29,000 $34,000
5 $31,000 $33,000 $37,000
6 $34,000 $36,000 $40,000
More than 6 $37,000 $39,000 $43,000

Source: Legal Aid Manitoba Web site (www.legalaid.mb.ca).

Legal Aid Manitoba notes that the figures in the above table are guidelines only. Each case is considered individually and, in general, legal aid is guided by the goal of providing access to affordable legal services to the working poor. Since 1997, a $25 processing fee is also charged to legal aid clients. Several classes of applicants are not required to pay this fee - most notably social assistance recipients.

Types of services provided for poverty law matters

The following chart describes the types of services available for poverty law in Manitoba. Each of these service types is explored in more detail below, including in charts presenting the data collected from legal aid respondents for the purposes of this project. Data collected from respondents in Manitoba includes the number of staff-lawyer and private-lawyer cases in various poverty law issues, as well as the cost of the services delivered in these areas. With respect to informal and certificate-equivalent cases, only the total number of clients receiving assistance in poverty law matters is tracked - there are no breakdowns by individual legal issue. However, cost information for informal and certificate-equivalent cases has been provided. No data is available on the number of people refused legal aid coverage for poverty law matters, or the characteristics of poverty law clients.

Type of Service Provision of this Service
General advice or assistance Yes. Clients are provided with information or general advice on a drop-in basis.
Legal advice or assistance Yes. Informal assistance includes taking some action on behalf of a client with regard to a particular case.
Legal Representation Yes. Staff lawyers provide the majority of legal representation in poverty law matters on a certificate or a certificate-equivalent basis. Private bar lawyers also provide some legal representation in poverty law cases.
Public Legal Education No.
Advice

In addition to full representation, legal aid staff provide two levels of summary service in poverty law issues: drop-in and informal services. There are no eligibility requirements for either of these services.

Drop-in services provide only basic advice or information to clients, whereas informal assistance involves taking some action on behalf of the client (for example, writing letters, making telephone inquiries). No statistical information is kept on the number of clients assisted on a drop-in basis. With respect to informal services, 46 clients were assisted in poverty law matters in 2000-2001. The cost of this service totaled $2,870.

Representation

As noted above, full representation for poverty law cases is provided on a certificate basis by both private bar and staff lawyers, with legal aid staff lawyers handling the majority of cases in this area. The Winnipeg Poverty Law Office is the only legal aid office dedicated to addressing poverty law issues, and the two staff lawyers at this office deliver the majority of the poverty law services available in Manitoba. However, the data provided below includes the limited number of poverty law cases handled through other offices.

Number and Cost of Poverty Law Cases, 2000-2001
Poverty Law Issue Staff Lawyer Cases Private Lawyer Cases
Number Number Closed* Cost (Closed) Number Number Closed2.* Cost (Closed)
Income Assistance 79 22 $1,916 41 33 $3,318
Landlord/tenant 3 2 $135 6 8 $3,166
WCB 6 7 $1,280 9 4 $3,710
Other Administrative2.# 56 51 $22,385 21 34 $18,253
All Poverty Law cases 144 82 $25,716 77 79 $28,447

Source: Data collection charts for Manitoba.*

According to the above chart, the total cost of the 161 poverty law cases closed in 2000-2001 was $54,183. This chart also indicates that staff lawyers not only handle the majority of poverty law cases (65 percent of files opened in 2000-2001). The average cost of a case closed by a staff lawyer was $313, while the average cost of a case closed by a private bar lawyer was $360. These cost comparisons do not include overhead costs for either staff lawyers or private bar lawyers. Income assistance is the issue in which both staff and private bar lawyers have the most poverty law cases, constituting 55 percent of all files opened by staff lawyers, and 53 percent of files opened by private bar lawyers.

Overall, poverty law is a small portion of the legal aid coverage provided in Manitoba. In 2000-2001, legal aid issued 8,599 certificates for civil law cases. The 221 cases opened in the poverty law area in 2000-2001, accordingly, constituted only 2.6 percent of the total civil law caseload.

As noted above, legal aid staff lawyers have the discretion to deliver services on either a certificate or a certificate-equivalent basis. According to one respondent, certificate-equivalent status tends to be extended when a staff lawyer does not want the applicant to have to submit a full application or to incur the $25 application fee. In 2000-2001, there were 12 certificate-equivalent poverty law cases, out of a total of 4,753 certificate-equivalent cases across all legal aid issue areas. The cost of these certificate-equivalent cases was reported as $5,219.

In the poverty law area, a LASS respondent noted that the certificate-equivalent classification emerged in response to a concern that certain kinds of cases would regularly not be covered on merit grounds. One consideration used in merit determinations - namely, whether a prudent person of modest means would pursue a claim given the costs involved and likely outcome - may prevent coverage being extended where the value of the dispute is small (notably, concerning income assistance matters). For persons whose lives are defined by government regulations, however, much can depend on their ability to secure the enforcement of government regulations. In such circumstances, the availability of legal aid may be more pressing, regardless of the quantity of the outcome. The certificate-equivalent classification enables staff lawyers to extend coverage to these people for more than informal advice, while remaining within the certificate paradigm for delivering legal aid.

Public legal education

The LASS respondent noted that there is a great deal of information and educational materials available through the Community Legal Education Association (CLEA), so applicants tend to be referred to this organization for assistance. CLEA also runs the lawyer referral service for Manitoba.

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 Manitoba.

Problem areas
Lack of resources to address the regional distribution of poverty law services

As discussed below, respondents from Legal Aid Manitoba consider the Poverty Law Office to be a success story from the perspective of enhancing the scope and quality of the legal aid services available in this area. However, the fact that there is only one such office, located in Winnipeg, means that other areas of the province do not benefit from the resources available. One respondent in particular pointed out that the same degree of poverty law expertise is unavailable in the northern regions. This respondent suggested that Legal Aid Manitoba would be interested in extending the work of the Poverty Law Office model to areas outside of Winnipeg, but that a lack of resources is preventing this move. In fact, anticipated reductions in the legal aid budget mean that they will likely be considering how to cut back the available poverty law services given that other areas of law would take precedence, from the perspective of maintaining services.

Success stories
Poverty Law Office

The specialized Poverty Law Office in Winnipeg has contributed to the capacity and effectiveness of poverty law legal aid services in Manitoba. First, having this office permits applicants to be streamlined through the application process rather than being "vetted" through the certificate system. This has resulted in more people receiving some kind of assistance through drop-in, informal, or certificate-equivalent services. According to one respondent, the informal services offered through the Poverty Law Office function almost like duty counsel or an advice service. Clients can call at any point for detailed advice or assistance. Second, staff at the Poverty Law Office have specialized knowledge in this area of law, and provide more and better quality assistance than when legal aid lawyers with other specialties took on poverty law issues.

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