An Analysis of Poverty Law Services in Canada
Structure of legal aid
Delivery of services
P.E.I. has no legal aid legislation - the Legal Aid Program (LAP) is administered by the provincial Department of Justice. P.E.I. is the only province that administers legal aid directly through a government department.
In the criminal and family law areas, four staff lawyers provide legal services from two different offices, including both full representation and summary advice. These lawyers travel to other locations if there are requests for assistance. Private bar lawyers are only retained for legal aid cases in the event of a scheduling problem or a conflict of interest.
Eligibility for legal aid
Eligibility for legal aid is determined by a flexible means test. Staff lawyers weigh the seriousness of the legal proceeding, and then consider whether an applicant's present means should be sufficient to obtain private counsel within the time required. Applicants may be considered financially eligible if they are without funds and require immediate assistance to preserve their legal rights, or if they cannot afford a lawyer without impairing their ability to keep themselves and their dependents fed, clothed, sheltered, and living as a family. There is no prescribed procedure for appeals on eligibility issues.
Types of services provided for poverty law matters
There is no legal aid coverage for poverty law in Prince Edward Island, whether on a formal or informal basis. One respondent noted that staff lawyers may occasionally provide some very limited advice in this area, or refer persons to the Lawyer Referral service for a half-hour free consultation with a private bar lawyer. Given that poverty law is not a primary area of service provision, however, there is no documentation of the frequency with which people come to legal aid with inquiries on poverty law matters.
Overall, the legal aid system in P.E.I. is very small, with only four staff lawyers in two offices for the entire island. The only areas in which legal aid coverage is available are criminal law, family law, and mental health law. While legal aid respondents were able to suggest some community organizations that provide assistance in the poverty law area, the range of services available was not considered to be very comprehensive.
Structure of legal aid
Delivery of services
The Legal Services Board (LSB) administers legal aid in the Northwest Territories through a model that is a mix of judicare, clinics and staff lawyers. In general, legal aid offices are mandated to serve the needs of the communities in which they are located, and they try to fill the resulting diverse range of needs. However, the LSB employs only a few staff lawyers, and their work is concentrated in the criminal and family law areas. Consequently, the legal aid system also relies on private bar lawyers and Native Court workers. Legal aid maintains a panel of (between 30 and 40) private bar lawyers who are assigned to eligible legal aid applicants on a certificate basis, according to their areas of expertise. As with paralegals, the Native Court worker program is based on a paraprofessional model. They perform the same functions as lawyers, up to and including the representation of clients in tribunals and courts. Court workers often provide the "first line of defence" for people with legal problems, particularly given the lack of lawyers in remote northern communities. As with staff lawyers, Court workers are employees of the LSB and do not function on a certificate basis.
The regional legal aid offices through which services are delivered are called clinics, and they have a community focus. These clinics perform all kinds of legal work required by the community, but the focus of staff remains on criminal and family law. A respondent from the legal aid plan commented that an important aspect of legal aid programming in the Northwest Territories is that it affects a lot more people in this jurisdiction than in many others. This is remarkable given the high cost of obtaining a lawyer in isolated areas.
Eligibility for legal aid
Legal aid applications are prepared by employees of regional legal aid clinics and by private bar lawyers on the legal aid panel. The Executive Director of the LSB is responsible for approving coverage for legal aid applicants. A person who is denied legal aid coverage may appeal this decision to the Board of the LSB. Legal aid coverage is available for the purposes of an appeal, provided that an opinion demonstrates that there is merit and that the person is otherwise eligible for legal aid.
The LSB adopted a system of presumed eligibility in 1997, and it continues to form an integral part of the provision of legal services. Presumed eligibility works on the assumption that all persons shall be presumed to be financially eligible for circuit court counsel and duty counsel services, thereby allowing all persons access to legal aid services. Although the presumed eligibility model originated under the criminal system, it now extends to other matters, including poverty law. Cases that are covered on the basis of presumed eligibility are not processed by way of a formal application for legal aid.
Types of services provided for poverty law matters
The following chart describes the types of services available for poverty law in the Northwest Territories. 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. Respondents submitted data on the number of clients receiving advice and legal representation on a limited range of poverty law issues. In addition, data was supplied on the total number of applicants and the number refused coverage. A very limited amount of information is available on the activities of Court workers. At present, the only type of poverty law matter for which separate Court worker data is collected is landlord/tenant. Some data on the sex and age of poverty law clients has also been provided, but this information is available only for those full service cases that have been entered into the data management system. Immigration status, ethnicity and language are not tracked by legal aid, and no information is available on the cost of poverty law services.
|Type of Service||Provision of this Service|
|General advice or assistance||Court workers provide general advice and assistance.|
|Legal advice or assistance||Legal advice is available through certificates for consultations of up to three hours.|
|Legal Representation||Poverty law representation is provided by staff lawyers, private bar lawyers, and Court workers (although staff lawyers work primarily in criminal and family law cases).|
|Public Legal Education||Little.|
Certificates can be issued to private bar legal aid lawyers for up to three hours of advice or consultation. This kind of certificate tends to be provided when a case does not fit into an established legal aid category, or if it is questionable whether legal aid should be covering the specific work, but it is known that the applicant would not otherwise receive assistance.
As chart below indicates, debtor/creditor matters are clearly the most common poverty law issue on which inquiries are received, followed by landlord/tenant matters.
|Poverty Law Issue||Number of Advice Cases|
Source: Data collection charts for the Northwest Territories
In addition to advice provided by lawyers on certificates, the Court workers responsible for legal aid service delivery in a given region are expected to provide both general and legal advice and assistance to members of their communities. Statistical information is not provided separately on the number of people assisted by Court workers through the provision of advice versus through representation by lawyers. As well, the only poverty law issue for which there is separate data on Court worker cases is landlord/tenant matters. Although Court workers likely provide services on a wide range of other poverty law issues, data on the assistance provided in these areas is not currently broken out.4 Accordingly, the only information available on the poverty law activities of Court worker in 2000-2001 is that they assisted in some capacity in 93 landlord/tenant cases.
A respondent from legal aid reported that some advice may also be provided in poverty law matters by duty counsel. Although, technically, they cover criminal proceedings, duty counsel lawyers may in fact assist people who are referred to them with poverty law questions, especially if they have any knowledge or experience in this area. However, given that the provision of such advice is not a formal duty counsel function, there is no data on the number of people receiving assistance through this channel.
In addition to the advice provided by private bar lawyers, Court workers, and duty counsel, the LSB operates a Law Line inquiry and referral service. Volunteer lawyers staff this line, providing summary legal advice of a general nature. This service is provided outside regular office hours and is available to any member of the public.
As noted above, staff lawyers, private bar lawyers, and Court workers all provide legal representation in poverty law cases.
In general, the work of staff lawyers is concentrated on criminal and family law matters. Since staff lawyers tend to lack expertise in the poverty law area, they take on only such cases that are particularly noteworthy in some way (for example, test cases, important precedents, and so on). A respondent from legal aid noted that staff lawyers probably
"do not think of themselves as doing poverty law work. If someone asked about services in this area, the answer would likely be that there are none."
Since staff lawyers do not provide a significant amount of representation in poverty law matters, as many cases as possible are referred out to private bar lawyers. According to a legal aid respondent, private bar lawyers have varying degrees of expertise with poverty law issues.
With respect to Court workers, a legal aid respondent commented that they are
"essentially like mini-lawyers" in terms of the work they do. They tend to be thought of as staff lawyers, and do provide representation in legal proceedings. As noted above, however, the only data available on Court workers' poverty law activities in 2000-2001 is that they provided some manner of assistance in 93 landlord/tenant cases.
In the Northwest Territories, legal aid incorporates the doctrine of "presumed eligibility" into its service delivery structure. This doctrine means that, in some circumstances, legal aid applicants may be "presumed" to be eligible for legal aid coverage in the absence of a complete application. The presumed eligibility approach originally emerged for criminal matters, but has since been extended to include the poverty law area. However, the number of poverty law cases covered on a presumed eligibility basis is not tracked, since the data management system currently in use relies on formal legal aid applications to monitor cases. As a result, the data presented below on the number of poverty law cases handled by staff and private lawyers is not an entirely accurate count of the total number of poverty law cases in which legal aid assistance was provided.
|Poverty Law Issue||Number of Cases|
|Staff Lawyer||Private Bar Lawyer||TOTAL|
Legal aid respondents from the Northwest Territories provided the following data on the number of people refused coverage for poverty law legal aid, and the reasons for these refusals. As the chart below indicates, one quarter of the applicants were denied coverage.
|Poverty Law Issue||Number of Applications||Number Refused Coverage||Reason(s) for Coverage Refusal|
|Landlord/tenant||10||3||2 - Financial eligibility 1 - Insufficient case|
|WCB||2||1||Failed to provide information|
Source: Data collection charts for the Northwest Territories.
Some data on the characteristics of poverty law clients is available, but only for those full service cases that have been received and entered into the data management system. Accordingly, the information presented in the table below may not accurately reflect the composition of the clients who receive legal representation from staff lawyers, private bar lawyers, or Court workers. According to available data, however, women aged 18-39 constitute the majority of poverty law legal aid clients.
|Women||Men||Under 18||18-39||40-54||55 and over|
Source: Data collection charts for the Northwest Territories.
Legal aid respondents were unable to estimate the percentage of poverty law clients with a particular mother tongue, but First Nations persons with the mother tongue Dogrib were mentioned as a key client group. However, respondents also noted that all legal aid clients access services in English. The immigration status of poverty law clients is not tracked.
Public legal education
Legal aid is responsible for providing public legal education, although in reality the amount offered is limited, given that there is no funding in this area. Most public legal education services are focussed on the primary service areas for legal aid, namely criminal and family law.
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 the Northwest Territories.
Lack of funding
A respondent from legal aid noted that there is too little funding overall for legal aid in the Northwest Territories, and, correspondingly, too little funding in the poverty law area in particular. The lack of funding for poverty law is exacerbated by what this representative characterized as a
"complete lack of communication" between the N.W.T. government departments involved in poverty issues (Justice, Education, Culture and Employment). As a result, there is little focus in the funding approach, and a lack of co-ordination in the use of funds.
Lack of general legal aid coverage
One respondent noted that legal aid only has a really significant presence in two parts of the Northwest Territories: Yellowknife and the Beaufort delta area. In other regions, there is not a wide range of legal aid services available, although the Court worker program does provide a key link to many communities. Ensuring an adequate geographic distribution of services is complicated by the large area and small population of the Northwest Territories.
Lack of poverty law coverage
In addition to the general lack of legal aid presence in many parts of the Northwest Territories, poverty law coverage in itself is limited. Since poverty law is not a primary area of service delivery, available assistance tends to be informal and provided under the guide of a "catch-all." According to one legal aid respondent, more comprehensive poverty law services are unavailable because of a lack of funding. Criminal and family law issues are prioritized, and there is not enough funding to adequately extend services into other areas.
Relationships with other community organizations
A respondent from legal aid noted that staff have a good relationship with other groups in the community, particularly those providing services in the family law area. (Family law issues are often related to poverty law issues). This representative suggested that a great deal of trust has been built up between legal aid offices and these community organizations, which results in effective cross-referrals, collaboration, and the prompt provision of assistance in cases where it is needed. One example highlighted in particular is the Women's Centre in Yellowknife, one of two areas in the N.W.T. where legal aid has a significant presence.
Services provided by private bar lawyers
A legal aid representative noted that the services being provided by some private bar lawyers are of high quality, despite the fact that they earn far less working for legal aid than they would in private practice. These lawyers are committed to providing people access to justice, and are a valuable resource for legal aid.
Legal aid provides coverage for poverty law matters in eight of the jurisdictions reviewed in this report: B.C., Alberta, Manitoba, Ontario, Quebec, Nova Scotia, Newfoundland, and the Northwest Territories. No poverty law legal aid coverage is available in Saskatchewan, New Brunswick or Prince Edward Island.
All those jurisdictions that provide poverty law coverage also offer legal representation to clients. The most comprehensive systems for the provision of representation are found in B.C., Ontario and Quebec, each of which has a wide network of community offices that extend coverage in a comprehensive range of issues. The legal representation available in Alberta, Manitoba, Nova Scotia and the Northwest Territories is more limited, given the small number of staff regularly providing services in the poverty law area, and the uneven distribution of service across regions. The extent of the representation offered by legal aid in Newfoundland is unknown, due to the fact that respondents did not submit any data. However, it was acknowledged that poverty law is not a primary service area for legal aid in this province. All jurisdictions tend to rely on legal aid staff to provide poverty law representation, and, in B.C., Ontario and the Northwest Territories, this staff includes paraprofessionals as well as lawyers. Manitoba, Quebec and the Northwest Territories are the only jurisdictions that reported regularly relying on private bar lawyers to provide legal representation in poverty law matters.
The picture is similar with respect to the provision of general or legal advice in poverty law matters. B.C., Ontario and Quebec have the most established systems, although in Quebec no distinction is made between advice and full representation cases. Unlike B.C. and Ontario, which have developed separate codes for advice cases, all legal aid clients in Quebec are simply assigned a lawyer with whom they consult about their case. The networks of community offices in these three provinces provide an effective venue for the provision of non-tariff services like advice, insofar as they have a local presence and are able to respond to community needs. In B.C. and Ontario, community offices also employ paralegals and community legal workers with specific expertise in the poverty law area. The Northwest Territories has developed a somewhat similar - if not nearly as comprehensive - community dimension to its legal aid system through the development of a small number of local clinics and the use of Native Court workers in remote locations. In addition, private bar lawyers in the N.W.T. also provide advice to poverty law clients on a certificate basis, as do staff duty counsel lawyers.
Other jurisdictions with specific programs through which advice is available in poverty law issues are Manitoba and Nova Scotia. As with legal representation, however, the services available in these provinces are more limited. Manitoba has only one Poverty Law Office, in Winnipeg, while Nova Scotia has one poverty law staff lawyer, in Halifax. Alberta and Newfoundland do not have any established service stream for the provision of poverty law advice.
The amount of detailed information available on the individual poverty law issues in which legal representation and advice is limited in most jurisdictions. Insofar as poverty law is not a primary legal aid service area for most jurisdictions, available data in poverty law cases tends to be grouped into other categories, rendering the compilation of separate case counts difficult. In some instances, poverty law cases are not distinguished from other civil law matters, or are grouped into an “Other” category along with various non-criminal and non-family law matters. An additional complication is that the data collection categories used by legal aid plans are not consistent across jurisdictions, making it difficult to compare caseload information.
Given the above limitations, the conclusions that can be drawn regarding areas of concentration for poverty law services are not exhaustive. Of the six specific poverty law issues on which data requests were centred (Employment Insurance, CPP/QPP/OAS, income assistance, landlord/tenant-housing, WCB, and debtor/creditor), available data suggests that income assistance and housing are key issues in which there is a demand for legal assistance. These are also issues on which separate caseload information is most frequently available - likely due in part to the fact that higher case volumes lead to the development of separate data coding. Additional poverty law issues under provincial responsibility, in which legal aid caseloads are much lower, include workers’ compensation and debtor/creditor, although the latter is an issue on which very little separate data was available.
Compared to income assistance and housing, there also tend to be fewer poverty law advice and full representation cases pertaining to the federal issues of Employment Insurance and CPP/QPP/OAS. As with debtor/creditor matters, however, it is also the case that jurisdictions are less likely to have separate caseload data on these matters - they are frequently combined into a single category, or included with other issues in an even broader classification. However, the number of cases in these combined categories still remains relatively low compared to income assistance and housing. Despite the limited availability of separate data, then, it is likely the case that fewer people are receiving assistance through legal aid in Employment Insurance and CPP/QPP/OAS matters.
With respect to the comments of legal aid staff on the strengths and weaknesses of the current poverty law system, several themes emerge. The key problems areas identified by respondents are funding levels and coverage. Comments on these issues most often pertained to the limited funding available for poverty law specifically (or legal aid in general), and the limited or non-existent legal aid coverage available for certain poverty law issues. These issues are linked to some degree, insofar as several respondents noted that coverage cannot be expanded without additional financial support. The other problem area mentioned by some respondents is the lack of visibility of legal aid, and the corresponding need to cultivate more awareness of available services among potential client groups.
In terms of success stories, the theme mentioned most often concerns service delivery models. Many respondents commented on particular aspects of their approach to delivering poverty law services that are working well. These included the expertise of staff, the use of a specialized Poverty Law Office, and collaboration across various legal aid structures. Other positive elements noted by some respondents are the community-based approach that certain jurisdictions have adopted in the poverty law area, and the comprehensiveness of available legal aid coverage. This latter theme is interesting, in light of the fact that several respondents said the opposite and raised “comprehensiveness” as a problem.
 A respondent from the Northwest Territories noted that they are currently considering an expansion of the data collection categories for Court workers so that separate data will be available for more issue areas in which these paraprofessionals provide services.
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