Discretion Payments in exceptional circumstances SimpleClearPredictable

Discretion Fast Facts 90.5% of certificates are completed within tariff9.5% of certificates have discretion payments84% of the Provincial panel requested discretionApproximately $12 million of discretion paid to lawyers in $6.5 million was spent on criminal certificates $4.5 million on family $600,000 on refugee $400,000 on civil 10% of all non-BCM certificate payments are discretion payments$840 represents the average discretion payment per certificate where total fees are less than $10,00070% of certificates have below average ($840) amounts of discretion paid

6.5 hours is the median discretion hourly request per certificate2 hours is the most frequently requested number of discretion hours 1.5 hours represents the median discretion request per certificate where lawyers billed over the tariff and did not request discretion 25% of all discretion requests were for less than 3 hours 15 to 30 minutes is the average time it takes to review and process a discretion request$50 is the average cost to review and process a discretion request15,000 discretion requests are received and processed annually Discretion Fast Facts

To ensure compliance with the Legal Aid Services Act (LASA) To provide greater clarity and certainty for lawyers To enable LAO staff to provide quick, consistent discretion decisions To ensure fairness in payments To ensure stewardship of public funds and effective use of limited resources for clients Why is LAO clarifying the discretion guidelines?

Discretion is requested to enhance the hours allowed under the tariff The Future of Discretion Discretion may be paid in exceptional circumstances pursuant to Legal Aid Services Act, Note C

Lawyers need to know when a discretion request may be made and how much they can expect in discretion payments The Future of Discretion The existing guidelines need to be clearer LAO’s annual survey of lawyers confirms Lack of clarity, uncertainty Lawyers don’t understand why requests for discretion are cut back or denied. Some lawyers say that a lack of clarity leaves them uncertain about how to manage a case. Dissatisfaction Some lawyers do not expect discretionary accounts to be reduced to the extent they are. Some lawyers complain that the reasons given for reductions don’t seem to relate to the account, and they think decisions are sometimes contradictory from one account to another.

Enable LAO staff to provide quick, consistent discretion decisions The Future of Discretion Discretion decisions take 60 days or more to process Existing guidelines subject to wide interpretation – there is a need for principled consistency

Uncertainty in discretion requests and payments The Future of Discretion Discretion is requested on 9% of certificates. Some lawyers exceed the tariff maximums, yet do not request discretion A lawyer’s rate of previous discretion requests substantially increases the likelihood of a future discretion request A lawyer’s inexperience increases the likelihood of a discretion request. Tier 1 lawyers request discretion more frequently. Lawyers with high certificate volumes related to the same type of case request discretion frequently increasing average case costs Discretionary payments divert funds from the most needy of LAO clients and reduce available funds for complex matters

Discretion Legal Aid Service Act Guidelines

Legal Aid Services Act Note C This Schedule is a legal aid tariff reflecting fees customarily paid by a client of modest means and except in exceptional circumstances the fees provided for shall normally apply for the described legal aid services, but, (a)at the written request of the lawyer, the fees may be increased by the legal accounts officer if in his or her opinion an increase is justified, having regard to all the circumstances, including, i.the result obtained, ii.the complexity of the matter, iii.the contributions of the applicant or other contributors, iv.the amount of time realistically set aside in anticipation of a lengthy trial which time was not otherwise filled by the lawyer, and v.any other relevant factor that would warrant an increased fee; and (b)the fees may be decreased by the legal accounts officer if in his or her opinion a decrease is appropriate, i.under subsection 44 (2) of Ontario Regulation 106/99, or ii.where and to the extent that the fees charged exceed the amount of fees that would be allowed if the fees of the lawyer were assessed under the Solicitors Act. The Future of Discretion

Seriousness of the matter Number of parties involved Other Party self- represented Complexity Length of hearing Number of charges Disclosure volume Forensic / Expert evidence Client’s special needs Court Time Saved Importance of matter to client Savings to LAO via early resolution Guidelines for Discretion Requests Tariff & Billing Handbook

Proposed Clarifications to Discretion Guidelines Criminal

LASA Note C Results Obtained You may be eligible for a discretion payment LASA Note C: a) (i) Results obtained Guidelines Include: Discharge of all charges at preliminary hearing as a result of a lawyer’s actions Acquittal of all charges at trial as a result of a lawyer’s actions Sentence significantly reduced as a result of a lawyer’s actions Material contribution to an outcome that is precedent-setting, that affects the administration of justice in favour of the defendant The Future of Discretion

LASA Note C Complexity of the Matter You may be eligible for a discretion payment LASA Note C: a) (ii) Complexity Guidelines Include: One or more factors Novel legal issue (e.g. attempt aggravated assault by HIV transmission) Rare motion (e.g. Third party records, recusal motion, mistrial) Forensic/expert evidence Client’s special needs – e.g. mental illness (unique proceedings) Characteristics of witness– e.g. child witness (testamentary capacity) The Future of Discretion

LASA Note C Other Relevant Factors You may be eligible for a discretion payment LASA Note C: a) (v) Any other relevant factor that may warrant an increased fee. Guidelines Include Relevant factors such as: Defence facing exceptional Crown resources Unusual and inaccessible disclosure – hard drives of statistical info/cell phone tower records Extended sentencing hearing Timeliness/reduction in appearances – JOT criteria High profile case The Future of Discretion

LASA Note C: a) (iii) Contributions of the applicant or other contributors LASA Note C: a) (iv) The amount of time realistically set aside in anticipation of a lengthy trial which time was not otherwise filled by the lawyer. The Future of Discretion LASA Note C Contributions of the Applicant Time set Aside for Trial N O C HANGE

Factors that require existence of other discretion circumstances Mere volume of disclosure Lawyer’s degree of skill and competence Number of co-accused only Parity between Counsel Client out of jurisdiction Mere young offender

DAD Overriding Discretion Authority The Future of Discretion A discretion request with factors not contained in the guidelines will be assessed in consultation with the District Area Director (DAD)