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Representation - Lawyers - Legal Aid. Berger v. Legal Aid Ontario
In Berger v. Legal Aid Ontario (Div Court, 2021) the Divisional Court sets out some basics of the legal aid system, and exemplifies it's administration in a case of billing-dispute:Legislative background
[3] LAO is established by the Legal Aid Services Act, 1998, S.O. 1998, c. 26 (the “Act”). Pursuant to s. 23, LAO area directors may establish panels of lawyers in a specific practice area. Lawyers appointed to those panels are eligible to accept certificates to provide legal aid services.
[4] O. Reg. 106/99 (Administration of System for Providing Legal Aid Services) is a regulation made under the Act (the “Regulation”). Sections 27-37 of the Regulation set out the process for being added to a panel and being removed from a panel. Section 32(1) provides that the president of LAO may remove a lawyer from a panel in three scenarios: (i) where they have reasonable cause to do so; (ii) where the lawyer has been found guilty of professional misconduct or conduct unbecoming; or (iii) where the lawyer has been found guilty of a criminal offence. Where the president decides to remove a lawyer, s. 32(3) requires the lawyer to be given notice and an opportunity for a hearing. LAO’s internal policy for panel removals specifies that a hearing under s. 32 shall be in writing only. Finally, s. 5 of the Regulation allows the president to designate an employee of LAO to exercise any of the president’s powers or duties under the regulation.
Procedural history
[5] On October 20, 2015, LAO notified the applicant that his representation of a legally aided client was under investigation (the “first investigation”). In the letter giving notice, LAO alleged that he had billed for hearings that he had not attended and had improperly billed for travel time between his office and the Immigration and Refugee Board (“IRB”).
[6] On December 2, 2015, the applicant responded in detail to the allegations. He explained that while the IRB’s decision indicated two hearing days, the five days that he had docketed included adjournments. However, he acknowledged that his billing had improperly included 36 minutes of travel time. He said that this billing had been inadvertent and agreed to reimburse LAO.
[7] On May 19, 2016, the LAO investigator issued a report on the first investigation (the “first report”). The investigator acknowledged that the applicant had, throughout the investigation, replied promptly and endeavoured to provide a full response to LAO’s enquiries. In the report, the investigator concluded that the applicant had inflated his billing by entering time spent for adjournments as contested hearing time. With respect to the dockets for travel time, the applicant was advised that the matter would be referred to LAO’s audit and compliance unit.
[8] In the meantime, LAO had begun an investigation into the applicant’s practice of billing for his law clerk, a licenced member of the Immigration Consultants of Canada Regulatory Council, to attend refugee claim hearings (the “second investigation”). The investigator requested information from the applicant concerning a number of files to which the law clerk’s time had been billed. The applicant complied with the investigator’s request by letters dated November 25 and December 8, 2015. In response to the allegations, he explained that because the law clerk had representation rights at the IRB, he believed she was permitted to attend on behalf of legally aided clients under his supervision. He also noted that he had ceased the practice at least a year prior to the investigation.
[9] On July 26, 2016, LAO issued a further report (the “second report”). In similar fashion to the first report, the investigator acknowledged and thanked the applicant for replying promptly, completely and courteously to all requests for information. The investigator made no finding about whether the applicant knew, or did not know, that he was not entitled to use the services of a non-lawyer to conduct refugee hearings on behalf of legally aided clients. The report advised that LAO would seek recovery of the fees paid for the law clerk’s services.
[10] The applicant requested and was granted reconsideration of both reports. In each case, the reconsideration requests contained substantial responses to the allegations contained in the reports.
[11] On August 15, 2017, Victor Matanovic, the manager of the LAO investigations department, sent the applicant a 230-page report (the “third report”) in which he confirmed the findings in the first and second reports.
[12] The third report also contained a new analysis of the applicant’s billing practices based upon a sample of his accounts between 2011 and 2016. It identified over 70 additional examples of docket entries where the applicant had failed to account for travel time or where the billing was continuous (no allowance for breaks or the time required to transition between one client file and another), as well as a number of other billing irregularities. Mr. Matanovic concluded that the applicant’s billing was “not credible, reliable and realistic and appears to be false and inflated billing for financial gain.” He said that he was recommending that the applicant be removed from the panel, and that LAO staff would manually review his accounts going forward.
[13] On December 29, 2017, the applicant wrote to LAO enclosing a detailed “reply submission” with three volumes of supporting documents. He denied that he had deliberately inflated his billings and provided explanations of how the various errors identified in the report were a result of inattentiveness.
[14] On January 9, 2018, the applicant wrote again to LAO expressing concern over the conclusory nature of the third report and requesting the involvement of a new investigator. In response, LAO’s Director Audit and Compliance Services wrote to the applicant denying his request on the basis that Mr. Matanovic “acted fairly, without bias and in accordance with the Investigations Policy.” He also advised that the reconsideration of the first and second reports (contained in the third report) was final.
[15] On September 14, 2018, LAO advised that a new investigator would be assigned to the applicant’s file because Mr. Matanovic had retired. In a six-page report dated November 5, 2018 (the “final report”), the new investigator confirmed the findings of the third report.
[16] The applicant protested by letter dated November 20, 2018. He stressed that he had provided 62 pages of detailed submissions together with three volumes and hundreds of pages of supporting documents, and that after 10 months, he had expected a similarly detailed reply. He requested that “a properly detailed review of [his] request for reconsideration be conducted, preferably by a panel of [his] peers, i.e. practising refugee lawyers.” This request was denied.
[17] On October 30, 2019, the president’s delegate (the “decision maker”) notified the applicant that she proposed to remove his name from the panel pursuant to s. 32 of the Regulation. The notice referred to the investigations and the findings of a number of problems and concerns relating to breaches of LAO billing rules. The reasons for the proposal were set out in detail along with LAO's grounds for proposing reasonable cause for removal. The notice included a sample form for a request for a hearing, as well as a list of the materials relied upon in support of the notice. . Cornish v. Legal Aid Ontario
In Cornish v. Legal Aid Ontario (Div Court, 2022) the Divisional Court considered the legal aid statute in the context of a suit by a lawyer for unpaid fees:[41] LASA and its regulations provide a system for legal aid services. Section 25 of LASA provides that an LAO area director may issue a legal aid certificate to individuals requiring legal services provided certain requirements are met. Section 29 provides that an area director may cancel a certificate. Section 30 provides for an appeal of a decision to cancel a certificate to an LAO area committee, and a further appeal to an officer or employee designated by the board of directors of LAO.
[42] Section 31 of LASA provides that LAO shall pay every lawyer who provides legal aid services pursuant to a certificate “a fee for the services rendered, determined in accordance with the regulations, and an amount for proper disbursements, determined in accordance with the regulations.” This section further provides that “A lawyer or service-provider who provides legal aid services pursuant to a certificate may appeal the Corporation’s determination of the lawyer’s or service-provider’s account in the manner set out in the regulations.”
[43] Sections 46 and 47 of the applicable regulation under LASA (O. Reg. 106/99), provide that a lawyer who is dissatisfied with the amount paid for an account submitted to LAO may request a review, and if still dissatisfied may appeal to an assessment officer appointed under s. 90 of the Courts of Justice Act.
[44] Section 83 of LASA provides that the Statutory Powers Procedure Act does not apply to any decisions made or proceedings conducted under LASA. It further provides that, “Except as specifically provided in this Act, every decision of the Corporation, its employees or a committee of its board of directors, and every decision of an area director or area committee is final and shall not be subject to appeal or judicial review.”
[45] It is apparent that the small claims court does not have jurisdiction to hear fee disputes or to address the concern raised by Mr. Cornish arising from the cancellation of the certificate of one of his clients. LASA contains a complete code for fee disputes.
[46] Mr. Cornish points to his own experience of bringing small claims court actions over fee disputes. In two cases, LAO settled the matters and did not insist that the small claims court lacked jurisdiction. He also submits that waiting for a review by an assessment officer is not practical. Mr. Cornish did not provide me with any jurisprudence that supports his submissions on this point. His arguments do not persuade me that the small claims court has jurisdiction to hear fee disputes. The procedure required in LASA appears sensible given the need for a simple and expeditious way to resolve fee disputes, which often involve modest amounts.
[47] The plea that LAO acted with malice and in bad faith towards Mr. Cornish does not, in the circumstances here, change anything. The issues described in paragraph 19 and 20 of the Claim are fee disputes. They are issues that the fee dispute resolution system mandated by LASA would be well-suited to resolve. Mr. Cornish cannot avoid the fee dispute resolution system by alleging bias, malice, or bad faith, or with his plea that he is entitled to be paid on a quantum meruit basis.
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