An Analysis of Poverty Law Services in Canada

Part One: Poverty law legal aid services (continued)

Part One: Poverty law legal aid services (continued)

Quebec

Structure of legal aid

Delivery of services

In Quebec, the body responsible for administering legal aid is the Commission des services juridiques (CSJ). The CSJ appoints the directors of the 11 regional legal aid centres that co-ordinate the delivery of legal aid services throughout the province. Regional centres establish legal aid offices throughout their assigned areas (there are over 100 offices in 98 locations across Quebec). They also encourage the creation of committees that advise and/or make recommendations to office managers concerning the needs of the economically disadvantaged in their regions. Applications for legal aid assistance are received and processed at both regional centres and the legal aid offices they establish.

Legal aid services are provided through a mixed staff lawyer and private bar lawyer (judicare) model. In most cases, private lawyers are retained if a regional centre lacks sufficient staff, if the case requires a specific area of competence, or if there is a conflict of interest. Both staff and private bar lawyers work on a certificate basis.

Eligibility for legal aid

Financial eligibility is determined on the basis of an evaluation of income and assets (including property, debt, and liquid assets). To obtain legal aid assistance at no cost, the income of the applicant and that of relevant family members must not exceed the amounts set out in the following chart.

Household Size Maximum Annual Income1.*
Single person $8,870
Adult and one child $12,500
Adult and two or more children $15,000
Spouses without children $12,500
Spouses with one child $15,000
Spouses with two or more children $17,500

1.* For certain remote regions, the amounts listed in this table are increased by 20 percent.
Source: Reproduced from materials on the Commission des service juridiques Web site (www.csj.qc.ca).

Assets may not exceed $2,500 for a single person, or $5,000 for a family. The value of property may not exceed $90,000 for an applicant/spouse who is the owner of a residence, or $47,500 for an applicant/spouse who is not the owner of a residence. When the applicant's financial status and that of his or her family exceeds one of the above three ceilings for free legal aid, the applicant may still be eligible for legal aid on a contributory basis.

Persons receiving "last resort assistance" - social assistance, Employment Insurance or workers' compensation benefits - are automatically eligible for free legal aid services.

Provided that clients meet financial eligibility guidelines, legal aid is automatically available for a range of issues: family matters, youth protection, representation of young offenders, prosecution of a criminal act, and benefit claims related to income support or employment assistance, automobile insurance, Employment Insurance, or workers' compensation. Legal aid may also be provided for certain summary procedures or administrative recourses if the legal aid office believes that it is necessary to provide the service requested. For summary procedures, the criteria are: (i) the probability of imprisonment for the accused; (ii) the loss of means of subsistence; and (iii) the best interests of justice given the exceptional circumstances involved in the case (notably its gravity or complexity).

In addition to the above guidelines, an application for legal aid may be refused if:

  1. the applicant cannot establish the probable existence of a right to receive coverage;
  2. the case has little chance of succeeding;
  3. the costs involved would be unreasonable in relation to the possible gain or loss of the applicant;
  4. it is unlikely that the judgment sought by the applicant could be executed; or
  5. the applicant refuses a reasonable proposal for settlement of the case.

Types of services provided for poverty law matters

The following chart describes the types of services available for poverty law in Quebec. 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 provided by legal aid respondents in Quebec is the number of legal aid applications received involving several poverty law issues in 2000-2001. No additional data was provided during the second phase of data collection for this project.

Type of Service Provision of this Service
General advice or assistance No distinction is made between summary and full services in Quebec. All clients who come to legal aid are assigned a lawyer with whom they consult about their case.
Legal advice or assistance See above.
Legal Representation Yes. Staff and private bar lawyers provide legal representation in poverty law matters as part of the services provided in the larger Civil and Administrative area.
Public Legal Education No.
Advice

According to a respondent from Quebec, there is no explicit advice program or service stream provided by legal aid in Quebec. All legal aid applicants are assigned a lawyer with whom they consult about their case, and from whom they may receive information or advice. Given that there is no separate category for advice, the CSJ has no statistical information on the number of clients who receive this kind of more limited service.

Representation

Both staff and private bar lawyers provide poverty law legal aid representation. All legal aid clients have the right to choice of counsel, and, accordingly, may request the services of either a private bar or staff lawyer. If a client does not have a lawyer and does not explicitly request private counsel, they will usually be directed to a staff lawyer.

Paralegals and other professionals do not provide legal representation in legal aid cases in Quebec. Paralegals are involved in assessments of eligibility for legal aid, and in the process of assigning cases to private bar lawyers. Occasionally, paralegals may also provide assistance to staff lawyers.

Given that poverty law cases are included within the larger category of Civil and Administrative Law, there is a limited amount of separate statistical information available on specific issues. However, CSJ respondents provided the following data on certain poverty law matters. As this chart indicates, social assistance is by far the largest category among poverty law cases, following distantly by housing.

Number of Poverty Law Cases by Legal Issue, 2000-2001
Poverty Law Issue Number of Applications Received
Employment Insurance 953
Quebec Pension Plan (QPP) 849
Social Assistance (welfare) 13,744
Rental housing matters 6,284
Workers' Compensation 3,856
TOTAL 25,686

Source: Data collection charts for Quebec.

According to a representative of legal aid, the total of 25,686 applications for legal aid coverage in the above issues constituted approximately half of the total number of applications received in the Civil and Administrative Law category in 2000-2001. Overall, Civil and Administrative Law clients comprised 19 percent of the legal aid caseload in Quebec in 2000-2001. The following general data is available on the sex and age of clients in this category.

Civil and Administrative Law Clients by Sex and Age, 2000-2001
Client Characteristic Percent of All Civil and Administrative Clients
WOMEN Age under 18 0.4
Age 18-25 6.5
Age 26-55 40.2
Age 56 and Over 6.6
MEN Age under 18 0.4
Age 18-25 4.7
Age 26-55 34.7
Age 56 and Over 6.6

Source: Commission des services juridiques 2001 Annual Report.

The above chart indicates that women and men aged 26-55 were the largest groups of recipients of legal aid services for Civil and Administrative Law matters in 2000-2001. Conversely, very little assistance in this area was provided to persons of either sex under age 18.

When the caseloads in all legal issues covered by legal aid are considered, Civil and Administrative Law emerges as the area in which persons aged over 56 most often have legal problems. The chart below illustrates that just over half (51 percent) of the legal problems brought to legal aid by persons aged 56 and over concern Civil and Administrative Law.

Percent of Clients in Each age Group with Civil and Administrative Law Cases, 2000-2001
Age under 18 Age 18-25 Age 26-55 Age 56 and Over
1.0 11.4 23.2 51.0

Source: Commission des services juridiques 2001 Annual Report.

Public legal education

The CSJ respondent did not describe the provision of public legal education materials as a large component of the work of legal aid in Quebec.

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 Quebec. Respondents in Quebec were not as forthcoming with evaluative comments about the poverty law legal aid system as were legal aid plan representatives in some of the other provinces.

Problem areas
Lack of coverage for pre-tribunal matters

A CSJ respondent noted that, while legal aid provides coverage for administrative tribunal review and appeal proceedings, there is no coverage for any problems encountered by clients prior to this stage. In other words, there is no legal support available during the initial stages of a problem. More assistance in this area was available through legal aid in the early 1990s, but the pressures currently being confronted, in terms of human and financial resources, mean that this kind of assistance is no longer available. This representative did go on to note that the government offices responsible for administering the kinds of programs in question often provide some form of assistance at this level, so it is not clear what (if any) role legal aid should be taking on.

Success stories
Comprehensiveness of legal aid

One CSJ respondent noted that the range of issues for which legal aid is available in Quebec - whether in the poverty law or other areas - is very comprehensive. It was suggested that Quebec has one of the most generous systems in Canada in this regard. In addition, this respondent noted that the distribution of services across the province is also effective and does a good job of ensuring that people have access to justice.

Nova Scotia

Structure of legal aid

Delivery of services

The Legal Aid Commission (LAC) is responsible for the administration of legal aid in Nova Scotia. Services are delivered through a network of administrative, regional and sub-offices.

Legal aid is organized around a staff lawyer service delivery model. Private bar lawyers are retained on a fee-for-service basis only in the event of conflict of interest, or in cases where a person facing life imprisonment chooses to be represented by a private bar lawyer (criminal choice of counsel).

Eligibility for legal aid

Legal aid legislation in Nova Scotia does not expressly preclude coverage of any particular civil law issue, and, in fact, the Act implies the availability of coverage of most legal matters.

Merit is the initial criterion for determining legal aid coverage in Nova Scotia. The factors considered in assessing merit include whether or not a successful outcome will result in sufficient benefit to the client, and whether the case has a viable legal foundation. Provided that a case is considered to have merit, monthly income is also a factor in establishing eligibility. Applicants are eligible for legal aid if:

  1. they receive all or part of their income from social assistance;
  2. their income is equal to or less than the income they would receive from social assistance; or
  3. obtaining legal services would reduce their income to the level of eligibility for social assistance or cause undue financial hardship. (A client contribution may be required in these circumstances.)

In addition to merit and income, there are several additional factors that may be addressed in decisions concerning legal aid coverage in Nova Scotia. These include cost, urgency, an applicant's social milieu, the seriousness of legal or economic outcomes, judicial requests for legal services, the area of law, the nature of the case, the exhaustion of other alternatives, and the potential benefit to the individual.

Types of services provided for poverty law matters

Legal aid plan respondents in Nova Scotia noted that poverty law is not a primary area of service delivery. Accordingly, the following chart describes the limited poverty law services available through legal aid in Nova Scotia. 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 was collected on the number of completed summary service and full service cases in the Administrative Tribunal category, as well as the average cost of these cases. Case counts for each legal issue within this general category are unavailable. Data was also provided on the number of applicants refused legal aid coverage for Administrative Tribunal matters, as well as the reasons for coverage refusals. Legal aid respondents in Nova Scotia collected information on the sex and age of clients for all completed summary and full service Administrative Tribunal cases, but the immigration status, ethnicity, and language of clients are not tracked.

Type of Service Provision of this Service
General advice or assistance Yes. Staff lawyers provide basic information and advice to clients in poverty law matters.
Legal advice or assistance Yes. Staff lawyers provide basic information and advice to clients in poverty law matters.
Legal Representation Yes. One staff lawyer provides legal representation exclusively in poverty law cases, while others may occasionally provide assistance in this aree.
Public Legal Education There is no formal program in place for public legal education in the poverty law area.
Advice

Legal aid staff lawyers offer summary services to clients in poverty law matters. These services may include the provision of information, general or legal advice, referrals to another organization or office, and other similar kinds of assistance.

The amount of assistance actually available in poverty law matters is quite limited in Nova Scotia, largely as a result of the very few staff assigned to this area. There is only one staff lawyer who works exclusively in poverty law, and he is located in Halifax. In other parts of the province, staff lawyers may provide some assistance in poverty law issues, but they generally lack expertise in this area.

Poverty law issues are tracked through the broader category of Administrative Tribunals. Cases that may be covered within this category include income assistance, residential tenancy, public housing, Employment Insurance, CPP/OAS, and human rights. As reflected in the chart below, only data for the entire Administrative Tribunal category is available. Separate caseload and cost figures for individual legal issues are not tracked.

Summary Service Cases, 2000-2001
Legal Issue Number of Completed Cases Average Cost per Case
Administrative Tribunals Summary Service: 32 $5,853

Source: Data collection charts for Nova Scotia

Representation

The one staff lawyer specializing in poverty law is the primary provider of legal representation in poverty law cases. According to respondents, this lawyer works primarily in the areas of income assistance and housing. Some Employment Insurance cases may also be handled, but Canada Pension Plan/Old Age Security matters are generally not covered, because positive outcomes do not tend to improve the financial situation of a client. Since many of CPP/OAS recipients also receive provincial income assistance, any increase in federal benefits tends to result in a reduction of income assistance payments. Workers' compensation matters are not covered by legal aid, given that appeals and reviews of benefit levels are addressed internally through the WCB system.

Staff lawyers in other legal aid offices around the province may occasionally represent a client in a poverty law matter. As one respondent reported, however, this is a very rare occurrence that is likely limited to instances in which the client is facing a particularly harsh situation, or in which the lawyer is already acting for the client on another matter.

Given that there is only one staff lawyer working continuously in the poverty law area, time constraints pose a significant obstacle to the delivery of assistance. As a result, the focus of this lawyer's work tends to be on cases the outcome of which could yield broader impacts. In addition, applicants are often initially denied legal aid coverage for poverty law issues, but may receive assistance on appeal.

As noted above, poverty law issues are tracked through the broader category of Administrative Tribunals. Separate caseload and cost data for individual poverty law issues are not available.

Full Service Cases, 2000-2001
Legal Issue Number of Completed Cases Average Cost per Case
Administrative Tribunals Full Service: 15 $17,069

Source: Data collection charts for Nova Scotia

Data on coverage refusals for applicants in Administrative Tribunal matters is also available in Nova Scotia, as listed in the following chart. A respondent reported that the number of appeals of legal aid coverage denials is not separately tracked, though it would likely be very small.

Administrative Tribunal Coverage Refusals, 2000-2001
Legal Issue Applications Received Applications Refused Reason for Refusal
Administrative Tribunals 1012.* 13

Source: Data collection charts for Nova Scotia

The following data was provided on the characteristics of poverty law legal aid clients. Only information on sex and age is collected - clients are not asked about their immigration status or ethnicity. A respondent estimated that the majority of poverty law services would be delivered in English, although no data on language of service is kept.

Sex and Age of Poverty Law Clients, 2000-20013.*
SEX AGE
Women Men Under 18 18-39 40-54 55 and over
20 27 0 18 18 11

3.* The data in this chart is for completed cases in the 2000-2001 fiscal year.
Source: Data collection charts for Nova Scotia

Public legal education

Nova Scotia legal aid generally does not offer public legal education services, largely because such activities are undertaken by a separate organization, the Legal Information Social of Nova Scotia. While there is no formal program in place for public legal education in the poverty law area, a respondent did note that the one poverty law staff lawyer has taken on public speaking engagements related to poverty law issues.

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 key gaps within the current system for delivering poverty law services in their province.

Problem areas
Lack of services

According to one respondent, the key problem with poverty law legal aid in Nova Scotia is the lack of services available to clients in this area. As discussed above, there is only one staff lawyer in Halifax who specializes in poverty law cases, with other staff lawyers working in this area only in rare circumstances. The result is considerable pressures in terms of time and coverage, particularly in areas outside of the capital.

One respondent suggested that, in addition to simply having more resources available for legal aid as a whole, an option for dealing with the shortage of poverty law services, in particular, is the development of a greater role for paralegals. Paralegals can effectively provide assistance in the more administrative, fact-based aspects of poverty law work (for example, dealing with utility shut-offs), in addition to some of the more substantive legal matters under lawyer supervision (for example, appearance at appeals of benefit denials).

A legal aid representative noted that there is not a great deal of co-operation between legal aid and community organizations working in poverty law issues, so the degree to which such groups are filling the gaps left by legal aid is unknown. The fact that there is little legal aid coverage for poverty (or other civil) law matters is likely well known by the network of community organizations - according to this respondent, legal aid is probably "rightly seen as a criminal and family law service." As a result, community groups do not come to legal aid for assistance.

Lack of funding for service expansion

At present, legal aid respondents noted, the expansion into the poverty law area is hindered by the fact that legal aid funding, already limited, is used up in the provision of criminal and family law representation, leaving little room for other kinds of legal issues. The LAC is reluctant to formally assign legal aid coverage to poverty law matters unless services can be extended into this area in a comprehensive manner, in terms of both areas of coverage and the distribution of services across the province. Since it is unlikely that sufficient funds to permit this kind of expansion will be available in the near future, aid for poverty cases will continue to be extended on a more discretionary basis.

Success stories
Test cases

One positive feature of the poverty law services available in Nova Scotia is the work done by the poverty law staff lawyer on test cases. Test cases are cases in which the issue under consideration has the potential to yield broader impacts for a particular group or groups. One respondent characterized the coverage legal aid extends in these cases as a valuable component of available services. However, this person went on to note that test case coverage should be complemented with more opportunities for assistance on the many kinds of "run of the mill" poverty law problems that people encounter.

New Brunswick

Structure of legal aid

Delivery of services

Legal aid in New Brunswick is administered by the Legal Aid Committee (LAC), which is composed of members the Law Society of New Brunswick. Administrative offices in each of the eight regions of the province are responsible for preparing lists of lawyers to serve on legal aid panels and for appointing duty counsel. Private bar lawyers provide all legal aid representation.

The Law Society of New Brunswick is responsible for appointing Area Committees of at least six persons: three from the Society and three from the community. These committees act as appellate tribunals in cases where legal aid certificates have been refused, as well as determining whether certificates will be issued for cases involving appellate courts. If a certificate is denied for an Appeal Court case, the applicant may appeal the decision to the provincial Director of legal aid.

Eligibility for legal aid

Legal aid applicants are subject to a means test that considers all financial circumstances. The criteria for the means test are flexible, but may include assets, income, and the expenses of the applicant, spouse, and any dependent children.

Types of services provided for poverty law matters

There is no legal aid coverage for poverty law in New Brunswick, and no coverage that is available on an ad hoc or discretionary basis. According to one respondent, the mandate of legal aid is limited to criminal and family law matters, as a result of budgetary constraints.

A legal aid representative noted that volunteer clinics operated by private bar lawyers may provide some assistance in poverty law matters. However, access to these clinics is limited by the amount of pro bono time lawyers are willing to donate, and the fact that there are clinics only in the Fredericton area. This respondent noted that legal aid does not have contact with any clinics of this kind, and that legal aid staff don’t know any private bar lawyers who focus specifically on poverty law. The respondent also suggested that some other organizations may assist people with poverty law issues, notably the Rentalsman office and the Department of Justice (public legal education materials). The notion that these limited resources in any way constitute a “system” for delivering poverty law services was rejected - in essence, there is no system in place in New Brunswick, even at the community level.

Newfoundland and Labrador

Structure of legal aid

Delivery of services

Legal aid in Newfoundland and Labrador is administered by the Legal Aid Commission (LAC). Services are delivered through a network of regional offices and Area directors. There are ten regional offices, eight of which have Area directors who are responsible for issuing legal aid certificates.

Newfoundland has a mixed staff lawyer and private bar lawyer (judicare) service delivery model, but staff lawyers deliver the majority of services in the province. In the early 1990s, legal aid switched from a predominantly private bar lawyer service delivery model to a staff lawyer model, although private bar lawyers are still used occasionally for some cases. As with other areas, staff lawyers provide the vast majority of assistance in poverty law cases.

Lawyers deliver all legal aid services in Newfoundland. Paralegals or other legal professionals are not involved in either legal representation or the provision of advice, although intake workers process the financial eligibility component of legal aid applications. Applicants who are refused legal aid coverage may appeal the decision to the provincial Legal Aid Director, and then to an Appeal Board composed of LAC members.

Eligibility for legal aid

Eligibility for legal aid is based on both financial and merit considerations. In terms of financial eligibility, persons receiving social assistance are automatically eligible. Other applicants are considered financially eligible if

  1. they cannot retain private counsel without having to dispose of assets necessary to maintain their livelihood;
  2. they cannot retain private counsel without impairing their ability to keep themselves and any dependents adequately fed, clothed, sheltered, and living as a family; or
  3. they are without funds and require immediate legal assistance to preserve their legal rights.

In civil matters, decisions about legal aid coverage are also consider the merit of a case. Merit is evaluated on

  1. the possibility of success;
  2. the cost of proceeding relative to the anticipated loss or recovery; and
  3. the likelihood of enforcing the judgment.

Types of Services Provided for Poverty Law Matters

The following chart briefly lays out the types of services available for poverty law in Newfoundland. Each of these service types is explored in more detail below, but no data on the number of clients or cost of these services was provided by legal aid respondents. Insofar as no data was submitted, the extent of available information on client numbers, service costs, and client characteristics remains unknown. However, given that poverty law is not a primary service area for legal aid in Newfoundland, respondents did note that cases of this type tend to be tracked only as a part of an "other" category that encompasses a wide range of issues.

Type of Service Provision of this Service
General advice or assistance There is no formal program for the delivery of advice.
Legal advice or assistance There is no formal program for the delivery of advice.
Legal Representation Yes. Staff lawyers provide legal representation in poverty law cases.
Public Legal Education No.
Advice

When applicants are refused legal aid coverage, a respondent noted, staff lawyers may offer some basic advice on other options for pursuing their claim. However, there is no formal program or service stream for the provision of advice in the poverty law area.

Representation

Staff lawyers provide legal representation in poverty law cases.

Public legal education

Legal aid does not provide a great deal of public legal education. There is no established program in place, and legal aid does not produce any written materials or publications. Staff lawyers sometimes speak at schools or at some events, as requested.

Strengths and challenges of the poverty law legal aid system

No information was collected concerning what is working well, what is not working well, and any key gaps within the current system for delivering poverty law services in Newfoundland, as a result of the inability to contact representatives of legal aid during the second phase of this project.

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