Discretion Payments in exceptional circumstances

Discretion • Fast Facts

Discretion • Fast Facts

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 clearerLAO’s annual survey of lawyers confirms

Lack of clarity, uncertaintyLawyers 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.

DissatisfactionSome 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 andpayments

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 ActNote 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

Guidelines for Discretion Requests • Tariff & Billing Handbook

LASA Note C Results Obtained

You may be eligible for a discretion payment

LASA Note C: a) (i) Results obtained Guidelines include:

• Successful refugee claim – IRB success rate of 20% or less

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 claims (eg. Transgender)

•Ministerial intervention

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 includeThe relevant factors such as:

•Minor

•Domestic violence

•Mental illness

•Illiteracy

The Future of Discretion

LASA Note C Contributions of the Applicant

Time set Aside for Trial

NO CHANGE

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

Factors that require existence of other discretion circumstances

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)