by Tracey Tyler, legal affairs reporter
Source: The Toronto Star
URL: [link]
Date: April 9, 2010

Lawyers representing low-income Ontarians found out by chance this week the province’s legal aid plan has stopped funding civil cases and is urging lawyers to take cases for free in the hope their fees will come from any money a court awards to clients.

The development comes during a time of upheaval at Legal Aid Ontario, with tensions also escalating over the future of Ontario’s 80 legal clinics, which serve the disabled, the elderly, immigrants and aboriginals, among others.

A March 30 memo sent to clinics from the Association of Community Legal Clinics of Ontario said Bob Ward, chief executive officer of Legal Aid Ontario, has indicated it would “make more sense” if there were only 40 to 50 clinics and feels the clinic system has grown stale, with too much money spent on administration.

Kristian Justesen, a Legal Aid spokesperson, told the Star Friday there is “no plan or idea” to reduce the number of clinics, but noted mergers of some clinics, including two in northern Ontario, have improved services and reduced costs.
Meanwhile, the association has given the province and Legal Aid Ontario an April 22 deadline to provide clinics with assurances their budgets will not be cut and to include them in any talks about overhauling the system.

The association has also set April 22 as the deadline for giving clinics their share of the $15 million in additional funding Attorney General Chris Bentley promised would be provided in each of the next four years.

According to the March 30 memo, if its requests are not met, the association will launch a media campaign to “preserve and protect the clinic system.”

Clinics, which get about $60 million a year, provide free legal advice for people with problems that could include anything from issues with their landlord to difficulties getting disability payments.

In other cases, legal aid is provided through certificates, which clients use to hire a lawyer. Certificates are issued mainly for criminal and family law cases, but about 600 a year have also been given out for civil cases.

Toronto lawyer Marshall Swadron was surprised when two clients were recently told Legal Aid Ontario does not fund civil cases. Swadron thought people staffing Legal Aid’s new telephone answering service had simply got it wrong.

Turns out they did not. Effective April 1, legal aid coverage was eliminated for lawsuits seeking damages for abuse, claims for reinstatement of disability insurance, malicious prosecution, assault or wrongful detention, mortgage actions and personal injury claims, among others.

Now that Ontario allows lawyers to enter into contingency fee arrangements with clients, there is an alternative to legal aid, Justesen said. Contingency fees are available only if a lawsuit succeeds and are often calculated as a percentage of any damages awarded or an out-of-court settlement.

Toronto lawyer Paul Copeland, a member of the Association for Sustainable Legal Aid, a broad coalition of legal organizations, said contingency fees are no substitute for legal aid.

A low-income client may have a meritorious case, but one that isn’t likely to result in a large monetary award.

“So the possibility of finding somebody willing to do many of these cases on a contingency fee is extremely slim,” Copeland said.

Legal Aid Ontario points out that, in many instances, it only funded disbursements in civil cases, not lawyers’ fees.

But that often made a huge difference for clients, said Swadron, noting if relatives of someone killed by police wanted to launch a lawsuit alleging excessive use of force, they would have to hire an expert witness to support their claim, which could cost between $5,000 and $10,000 — an example of a disbursement legal aid no longer funds.

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