LEGAL AID SERVICES ACT, 1998 LOI DE 1998 SUR LES SERVICES D'AIDE JURIDIQUE
CANADIAN ENVIRONMENTAL LAW ASSOCIATION
CANADIAN MENTAL HEALTH ASSOCIATION, ONTARIO DIVISION
ST LEONARD'S SOCIETY OF CANADA
LAWRENCE HEIGHTS COMMUNITY HEALTH CENTRE
AFRICAN CANADIAN LEGAL CLINIC BLACK LAW STUDENTS' ASSOCIATION OF CANADA
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 525
CONTENTS
Thursday 19 November 1998
Legal Aid Services Act, 1998, Bill 68, Mr Harnick /
Loi de 1998 sur les services d'aide juridique, projet de loi 68, M. Harnick
Canadian Environmental Law Association
Ms Cathy Spoel
Ms Grace Patterson
Mr Paul Muldoon
Mr Graham Rempe
Ms Stasha Novak
Law Society of Upper Canada
Mr Harvey Strosberg
Canadian Mental Health Association, Ontario division
Ms Ruth Stoddart
St Leonard's Society of Canada
Ms Elizabeth White
Osgoode Hall Law School
Mr John McCamus
Mr Fred Zemans
Ms Sheila McKenna
Lawrence Heights Community Health Centre
Ms Sherry Phillips
African Canadian Legal Clinic;
Black Law Students' Association of Canada
Ms Michelle Williams
Ms Margaret Parsons
Ontario Public Service Employees Union, local 525
Mr Bart Poesiat
Family Lawyers' Association
Ms Mary Reilly
Ms Elizabeth Ennis
Ms Susan Switch
Injured Workers' Consultants
Ms Constanza Duran
Mr Peter Bird
M. Richard Hudon
Mr John McKinnon
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président
Mr Jerry J. Ouellette (Oshawa PC)
Vice-Chair / Vice-Président
Mr E.J. Douglas Rollins (Quinte PC)
Mr Dave Boushy (Sarnia PC)
Mr Bruce Crozier (Essex South / -Sud L)
Mr Peter Kormos (Welland-Thorold ND)
Mr Gerry Martiniuk (Cambridge PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr David Ramsay (Timiskaming L)
Mr E.J. Douglas Rollins (Quinte PC)
Mr R. Gary Stewart (Peterborough PC)
Mr Bob Wood (London South / -Sud PC)
Substitutions / Membres remplaçants
Ms Annamarie Castrilli (Downsview L)
Mr Joseph Spina (Brampton North / -Nord PC)
Mr Wayne Wettlaufer (Kitchener PC)
Also taking part / Autres participants et participantes
Ms Marilyn Churley (Riverdale ND)
Clerk / Greffière
Ms Tonia Grannum
Staff / Personnel
Mr Avrum Fenson, research officer, Legislative Research Service
The committee met at 1032 in room 151.
LEGAL AID SERVICES ACT, 1998 LOI DE 1998 SUR LES SERVICES D'AIDE JURIDIQUE
Consideration of Bill 68, An Act to incorporate Legal Aid Ontario and to create the framework for the provision of legal aid services in Ontario, to amend the Legal Aid Act and to make consequential amendments to other Acts / Projet de loi 68, Loi constituant en personne morale Aide juridique Ontario, établissant le cadre de la prestation des services d'aide juridique en Ontario, modifiant la Loi sur l'aide juridique et apportant des modifications corrélatives à d'autres lois.
The Chair (Mr Jerry J. Ouellette): We call this committee to order today on the last day of hearings here in Toronto of the standing committee on administration of justice discussing Bill 68, the Legal Aid Services Act.
Prior to hearing from our first presenters this morning, I would like to bring forward the information that's been distributed regarding the issue the official opposition brought forward, the issuing of permits for the use of paralegals. The information just follows up the verification of the parliamentary assistant's comments regarding that.
Mr Peter Kormos (Welland-Thorold): On a point of order, please, Mr Chair: I note there's been a substitution slip or notice provided substituting Jim Brown for Mr Rollins. Mr Brown isn't here yet. I'm wondering if we could perhaps wait for Mr Brown to come in view of the fact that he's a substitute --
The Chair: No, we have presenters here, Mr Kormos, and I don't think we'll keep them waiting any longer.
Mr Kormos: Mr Chair, if I may. I am prepared to sit through lunchtime to accommodate the presenters. It's not fair to Mr Brown, who as we know is very active in the community, has some considerable insights into the activities in this community involving various legal matters. He expressed them recently. I think it's unfair to Mr Brown for us not to wait until he at least comes here.
The Chair: We have no detailed information as to his whereabouts. Should something occur on the way here, if he is in a car accident or something, I have no intention of determining that we will wait. We will continue.
Mr Kormos: At least we know the Santa Claus parade isn't on today, so we know he's not there.
Ms Annamarie Castrilli (Downsview): Mr Chair, before the presenters come forward, perhaps I could ask you about the status of the other request we made with respect to convention and treaty obligations and charter obligations with respect to refugee laws.
Mr Avrum Fenson: That'll be here early this afternoon.
Ms Castrilli: Thank you very much.
CANADIAN ENVIRONMENTAL LAW ASSOCIATION
The Chair: I call the Canadian Environmental Law Association, if you could come forward, please. There's a total time allocated of 20 minutes. At the conclusion of any presentation you may have, your time is divided equally between the three caucuses for questions and answers. Just before beginning, if you could identify yourselves for Hansard, we would appreciate it. Thank you for coming.
Ms Cathy Spoel: My name is Cathy Spoel. I am the chair of the board of the Canadian Environmental Law Association. Graham Rempe is one of our board members and a former president of the association. Grace Patterson is a board member and the treasurer of the association this year. Paul Muldoon is the executive director of the clinic. I will be starting our formal presentation and Ms Patterson will participate. We're all here in the event there are questions following that.
The Canadian Environmental Law Association was founded in 1970 and has been funded and operated as a specialty legal aid clinic under the Ontario legal aid plan since 1978. As a specialty clinic within the clinic system, CELA represents poor individuals and non-profit, low-income citizens' organizations. CELA also provides public legal education regarding environmental law and law reform for the protection of human health and the environment and for increased access to justice for Ontario citizens.
CELA is generally supportive of Bill 68, the Legal Aid Services Act. CELA fully supports the submission of the Association of Community Legal Aid Clinics of Ontario, of which we are a member, which has been presented to this committee and, as such, our comments will not include comments outlined in that submission.
Our submission relates to one important issue which pertains to the absence of the term "environment" in the definition of "clinic law" in section 2 of the bill. Although the absence of the term does not impede CELA from carrying out its current mandate and work, either now or in the longer term, the inclusion of the term is fundamentally important since it would clarify and reaffirm the vital connection between poverty law and environmental issues.
To further this issue, it is necessary to provide some background to CELA and its work, to review the fact that "environment" is not expressly included in the definition of "clinic law," to give some further elaboration as to the link between environment and poverty law issues, and then we'll have a proposed amendment to present.
CELA is governed, as are all clinics in Ontario, by a volunteer board of directors. Our board includes lawyers, past chairs of provincial administrative tribunals and representatives of CELA's client community. We receive numerous requests for representation by eligible individuals, groups and families every month, and we accept as many of them as our resources permit.
We provide services to the public in many forms. In the year ending December 31, 1997, we directly served over 1,919 individuals with summary advice, brief services or referrals. We often assist individuals and groups on a self-help basis when we cannot assist by accepting the case for full representation. We assist our clients with a wide range of environmental issues. Matters under the Environmental Bill of Rights, proceedings before the Ontario Environmental Appeal Board, the Ontario Environmental Assessment Board, the Ontario Municipal Board and other tribunals. We also appear before the Ontario Court (General Division) on applications and actions, in the Federal Court and have appeared at appellate levels in the Ontario and Federal courts, including the Supreme Court of Canada.
In addition to the legal representation I've outlined, we also provide, as is our mandate, public legal education and training in environmental law to the general public and to other clinics, community outreach and law reform.
Bill 68, the Legal Aid Services Act, proposes to transfer legal aid services from the current Ontario legal aid plan system run by the Law Society of Upper Canada to a new corporation called Legal Aid Ontario. As noted, we have overall support for the bill. However, we have a concern about the definition of "clinic law." Clinic law is defined in section 2 as follows: "'clinic law' means the areas of law which particularly affect low-income individuals or disadvantaged communities, including legal matters related to,
"(a) housing and shelter, income maintenance, social assistance and other similar government programs, and
"(b) human rights, health, employment and education."
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Our concern is that clause (b) of the definition does not include the term "environment." Any reasonable interpretation of the proposed legislation suggests that these areas of law are not exhaustive but permissive in that other areas, such as environment, may be offered in addition to those areas listed. On this view the definition of "clinic law" provides the minimum content, but does not constrain additional services.
Despite this view, a concern nevertheless remains for CELA in that environment is not included in the core clinic services definitions. Therefore, even though such services may now be offered, they are subject to modification over time. If a decision is made by Legal Aid Ontario at some date in the future to restrict its funding to those areas described in the "clinic law" definition on the basis that those areas are its core service delivery areas, then a specialty clinic dealing with any topic beyond those listed may be at risk.
Although we provide services in the areas listed in the definition of "clinic law," such as environmental health and human rights, reliance on those other terms to encompass the services required by CELA's clients would be inadequate, in our view.
Ms Grace Patterson: We submit that the absence of the term "environment" from Bill 68 is a critical omission and we have three basic points to make to substantiate that argument.
The first is that there is an intimate link between poverty and environment. Section 2 relates clinic law to those areas of law which particularly affect low-income individuals or disadvantaged communities. There is ample literature demonstrating that low-income individuals and disadvantaged communities experience disproportionately high impacts from environmental problems. Poor people are exposed to multiple sources of pollution since they often work in polluting industries. Inner-city poor often reside in city neighbourhoods of mixed industrial and residential housing, while rural poor people are more likely to reside near power stations, transmission lines, landfill sites and other areas of environmental stress.
There is also clear evidence that because poor people are exposed more to multiple sources of pollution, adverse health effects follow hand in hand. There are of course fewer financial resources for those people to use to avoid the impacts of pollution, less preventive information in current terms and relatively less access to health care. In a background paper that we submitted along with this submission we talk more about the connection between environment and poverty law. Certainly in the last 20 years, which is the length of time CELA has been a funded legal aid clinic, that connection has been made more often in the literature.
The second basis for our argument that environment should be included is that it does meet the general objectives of the bill. Bill 68 is intended to provide legal services, whether by private bar certificates or by clinic services, in those areas that cannot be appropriately or adequately served by the private law bar. The private bar, however, is generally unable to provide legal services in environmental matters to those without financial resources.
Private bar legal aid certificates for environmental matters have not been provided for many years. One of the primary reasons for the discontinuance of certificates for environmental issues is that the provision of environmental services through the clinic system is more efficient and less expensive than provision of these services by the private bar, even under legal aid certificates.
The backgrounder notes that the quality assurance review found that CELA is highly effective in serving the client community. I know that the association of legal clinics made submissions about the quality assurance review. We certainly had experience with that this year and CELA came out very well in the review process.
Also, poor people do not have access to intervenor funding for those issues where it was previously available, and hence there is no way to have the legal fees reimbursed. In many environmental hearings, cost awards are not made with the result that there's no opportunity for a private lawyer to carry a client's case and achieve any financial recovery at the end of the day. Since most environmental matters are not matters in which CELA's clients have a direct pecuniary interest or recovery, there's no opportunity, again, to use the proceeds recovered in the matter to reimburse the private bar.
In cases where CELA does deal with a matter where cost awards are available and it receives a cost award, the cost award is used to reimburse disbursements and then the balance is paid back to the legal aid plan.
Our third basis for saying that environment should be included in the definition of clinic law is that it would add certainty. It would also add continuity. As I said, CELA has been funded for 20 years as a clinic law service. Since environmental issues do affect low-income individuals and disadvantaged communities, and providing these services through the clinic regime is the most expedient manner of provision, the inclusion of the term would serve to formalize the relationship and ensure the furtherance of that relationship over the long term.
On the issue of CELA's servicing of the community, the Environmental Bill of Rights has been an access point for people of low income as well as others. CELA has been one of the users of the system that actually, on a regular basis, checks the registry and has represented clients effectively under the Environmental Bill of Rights.
Lastly, our recommendations for amending Bill 68: Basically, in the definition of "clinic law," clause (b), we don't suggest any changes other than adding the word "environment" under (b), which includes human rights, health, employment and education. We would insert "environment" before education.
Although these changes would not affect the ability of Legal Aid Ontario to fund environmental issues and clinics practising environmental law, because we do think that is still provided for to some extent, the inclusion is warranted and justified and would certainly provide some assurance to people who are concerned about the continued provision of environmental law services in the clinic context.
The Chair: Thank you very much. That allows us two minutes per caucus for questions. We'll begin with the official opposition.
Ms Castrilli: Thank you very much for being here. Thank you for giving us a copy of your brief in advance.
I think you make a very compelling case. I think your requests are very modest and I can't imagine that the government might not want to include them. I would like to think it's an oversight.
I want to ask you about funding under this legislation because I think that's where the real trick is. It doesn't matter what you include under the definition of "clinic," if you're not prepared to fund those clinics adequately, the rights you may have under the legislation are in fact meaningless. As you know, at the moment, there is certainly in the act something that says clinics may be funded for up to three years. I wonder what advice you could give us in order to make that funding more stable.
Mr Paul Muldoon: I can respond.
One of the things about clinic funding, it seems to me, is that in order to serve our constituency, which is disadvantaged communities and low-income people, there needs to be continuity. Part of that continuity is expertise on the issues.
A three-year funding window is a positive step, it's more than we have now, but one of the things that's very clear, in my view, is that clinic funding is below budget. We need more money to deliver the services. There's been basically a freeze within the clinic system since 1992. There should be some commitment to permanent funding in the clinic system to allow that continuity to happen. There's already, in my view, checks and balances in the system to ensure it's delivering effectively. I think, like any other government program that's essential, there should be some long-term continuity to that program.
Ms Castrilli: Would you be in favour, as has been suggested by one previous presenter, of a rolling three-year budget? You'd never get to the end of a three-year mandate. You're always setting a new budget as you go forward.
Mr Muldoon: It's certainly better than the system we have now.
The Chair: Thank you. We move to the third party.
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Ms Marilyn Churley (Riverdale): Thank you for your presentation this morning.
Let me say first off that the NDP caucus will be preparing an amendment to section 2 which will have "environment" listed in the definition of "clinic law." So we will be presenting that amendment.
Both of you pointed out that because of intervenor funding now gone, and I would add that environmental assessment process really gutted, and other laws, it's all the more important for communities or individuals who don't have the money to have access to environmental lawyers.
My question is around this: I have heard out in the community that environment was part of the definition of "clinic law" originally in the draft proposal -- I can't prove it today but I'm working on it -- and that it was taken out, which really concerns me. I can't imagine why. If it were there, it makes imminent sense that it be listed. I'm just wondering if you've heard this and if there's perhaps something going on we don't know about. Have you heard the same rumour?
Mr Graham Rempe: Certainly, given the tone of the McCamus report and given the extensive informal consultation process that took place prior to this, it was our expectation, certainly our hope, that we were going to see environment included in the core areas with matters such as health and education that are there. Of course, we're very disappointed that we don't see it at this time.
For the reasons my colleagues have referred to, our submission is that it should be there; it's very important that it's there to ensure three things: first, the recognition of the disproportionate effect of environmental impact on poor people; second, given the absence of other areas as you've indicated, that access be assured; and finally and perhaps most important, to provide some certainty and continuity in that area.
The Chair: Thank you. We'll now move to the government members.
Mr Wayne Wettlaufer (Kitchener): Thank you very much for your presentation this morning. I have a question around your subsection on the environment. I was wondering, for my own information, if you could give me some of the literature that demonstrates the incidence of low-income individuals and the disadvantages of communities suffering from environmental problems. I have a reason for asking this, and Hansard will record it, if you can.
I know of a particular rural area in Huron county that is not what you would call low-income, yet there's a relatively high incidence of cancer in that agricultural community. I wonder if you could give me, for my own information, the list of literature.
Ms Spoel: Sure. If you look at the backgrounder that we filed as an addendum to our submission, on the back page, footnote 1 lists a number of articles in support of that proposition. I would like to say, however, that simply because low-income communities have a disproportionate share of environmental problems, it doesn't mean that communities that aren't low-income don't have environmental problems as well. We just don't act for those communities because they're not eligible for our services under the legal aid plan. It's not to suggest that low-income communities have all the problems, simply that they more frequently have problems. There are certainly problems in more affluent areas as well.
Ms Patterson: Most of the references here are to Canadian articles, but there is a large body of American publications as well. If you were interested, we could provide a list of those as well.
Mr Wettlaufer: I would appreciate that.
The Chair: Thank you very much for coming forward today with your presentation. We very much appreciate that.
STASHA NOVAK
The Chair: I call upon the next presenter, Stasha Novak, if you could come forward, please.
Ms Stasha Novak: Thank you, Mr Chairman. My name is Stasha Novak. I've applied for legal aid several times. I will follow from the presentation that just left.
My health and my life were affected in 1986, when my fifth-floor apartment was flooded with sewage three times in a year and a half. That was the famous Cadillac apartment block in High Park which immediately sold. The government I believe took receivership, and management and maintenance deteriorated. My fifth-floor apartment was flooded with sewage three times. When I got home, all my belongings were damaged. Overnight, I didn't have a place to live. I thought the landlord would be responsible and take care of me, but I was left destitute with no shoes, no bed, no nothing, on the streets.
I immigrated to Canada when I was 25 years old. I worked from the day I arrived, and until 1990 I worked at the Canadian Imperial Bank of Commerce.
As a result of the sewage flood my health deteriorated, as I said. I applied for legal aid. I had to go to court about 11 times. I received only some rent abatement and no additional accommodation. While I was paying full rent, I was living at the Salvation Army at 419 Dundas St East, at my friends', in about 11 different places.
The result from the legal aid was that I was like a nuisance. It wasn't something that people even liked to talk about. Finally, after several years I went to Small Claims Court because I was out of statute of limitations. The judge gave me punitive damages. I was able to claim $6,000, but my life was gone.
There was more to it. I didn't have much money and I went to the dentist, who sensed that I was vulnerable, and he did dentistry on me for which he was not qualified. This is my biggest problem.
I had been dealing with legal aid and this has been in legal hands since 1989. It's now 1998. I've submitted many medical reports, particularly numbers 6, 9, 11, 12, 13 and 14, which explain my medical condition in great detail. I would request that perhaps your members would at least read number 6. It was written by a neurologist to my then lawyer, that I had stabbing jaw pains, that I had a brain scan and that it was not normal, and that I suffer from memory impairment.
Why, when my doctor sends letters to lawyers and legal aid, are they not responding? Where do I go as a disabled person? It brings me no pleasure, and extreme humiliation. I have to tell you I could not remember my name.
At that time my employer, the Canadian Imperial Bank of Commerce, had dismissed me without drug or dental coverage, nothing. My neurologist applied for disability through the government of Canada.
I had to move to subsidized housing, where I was promptly assaulted. That took another three years. Now I'm living with my friend.
I'm sorry I got ahead of my story. I put something in writing and I would like to read it to you.
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The legal professional, the custodian of social order, has been looking after my interests for over 10 years, since 1988, but because I'm not a criminal, automatic access to legal representation not apply to me. Common criminals, the bullies who assaulted me, a hit-and-run driver, a fraud artist, all have an automatic right to legal representation, but as someone in my situation who's been left destitute by the incompetence of dental and medical practitioners and a negligent lawyer and has had her ability to earn a livelihood destroyed, I have no automatic right to legal representation. I have to beg. I have to justify. I have to plead. I have to explain my dental pain and sexual assault by my former dentist to some anonymous, four-member legal aid committee, but my voice and my visible pain are not enough.
Second-hand information supplied by yet another lawyer, doctor or even psychiatrist is needed with all details of my life, as if I, a human being, am not worthy to listen to. I was working in a responsible position for 25 years. The moment I became a victim, I lost all credibility. I'm treated differently by most professionals, save some exceptional people. There were some very, very caring professionals. I can't paint all with the same brush.
I had legal aid for the flood at my apartment, as the landlord was negligent. I had it for the assault and the housing, for dental malpractice and sexual assault by the same dentist, and a surprise, what we have here: two negligent professionals, my second dentist and my second lawyer, according to one of my lawyers. The law firm has four legal certificates at the same time, on my name, on my problems. None of them were solved and they left me in worse shape than before. The billings to legal aid were huge. A victim is a good meal for many. This case and the people involved -- there is more circus here in this case than in any figure skating competition.
I would like to tell you what chronic dental pain and TMJ and 400 dental appointments in 10 years mean to someone. One is particularly vulnerable in a dental chair while the dentist is examining and working in your mouth. You cannot see it for yourself, so you have to rely on a dentist's honour, and in my experience, integrity and honour are lacking in the dental profession. I noticed some dentists have difficulty deciding the treatment plan and the fee for it and putting it in writing in a legible form.
Dental work is not covered by OHIP. If I have no money, I have to suffer in pain. If I have a prescription for Tylenol 3 painkillers, and if I don't have money, I have to suffer in pain. The dentist who put the crowns on my teeth was not qualified to do the dental work on me. The Royal College of Dental Surgeons of Ontario reprimanded him and asked him to take some more courses in dentistry after they examined his dental work on my teeth. The college decided that all dental work by Dr Vojnovik would have to be replaced by another practitioner.
My second dentist was also reprimanded, and the third dentist lost his licence with the same college. So what happens to the patient who receives poor dental work if your dental work is in a "holding pattern"? What happens to your teeth when your dentist loses your dental records when the royal college has the opportunity to look at them?
When the dentist messes up your teeth, you also develop medical problems. The medical profession offers very little help for dental problems. Some family physicians are unwilling or unable to recognize medical consequences of dental disasters. You can go back to the dental profession, provided you have a lot of money, and the dental profession can correct the mistakes of the first dentist. Often, the dental profession cannot do much for you. Some dentists would not treat you. Some would further mistreat you.
In the last 10 years, I had over 400 dental appointments. I was treated by 41 dentists, 32 of them at the Mount Sinai dental clinic. Some of my dentists were exceptional, caring professionals. One I would like to include is Dr Barzilay, whose report is included in here. But it takes only one dentist to mess up your teeth. Because of this chronic pain, facial neuralgia, horizontal loss of bone, months of x-rays, Panorex, TMJ, painkillers, Tylenol 3, I recently had soft tissue cut from the top of my roof and sewn on the bottom. Infections, abscesses, inability to chew or speak properly and earn a living, then you become a psychiatric patient, provided your psychiatrist can understand chronic dental pain and the psychological response to it.
The cost to society of this incompetent dental profession is enormous, but there is very little help for the patient. Because of my faulty dental work, I lost my employment at CIBC, my employment of 19 years, my life insurance, my drug plan, my dental plan, my dignity, my purpose in life, my work, my health and most of my teeth. Because of dental work, my face is disfigured and I will suffer till the day I die.
It is about time that this government directly held the governing profession accountable for their actions, including the Royal College of Dental Surgeons of Ontario and their liability insurance and the lawyers who are involved with it. I don't think they could do without the legal profession. My psychologist put it so succinctly: "You have a man-made disaster. Had your dentist been competent and then your lawyers, you would be doing this instead." Instead, this is what I am.
I include a document relating to my employment, medical, legal and dental reports, legal correspondence that insurance or the lawyers did not answer, Criminal Injuries Compensation Board and the latest dental case. It's been 10 years. Why?
The Chair: Does that end your presentation? Thank you very much. That allows us a little over two minutes per caucus. We begin with the third party.
Mr Kormos: Ms Novak, I've been reading the contents of this file and listening to you at the same time. I hope you understand that I've been doing both. There's a lot of material here. We just got it. You've been screwed royally. I have no hesitation to tell you that.
There was a letter from Swadron that talked about an offer to settle. What happened with that? Very quickly; we haven't got a lot of time.
Ms Novak: I was injured on my knee --
Mr Kormos: No. What happened with this offer to settle?
Ms Novak: I couldn't take it.
Mr Kormos: OK.
Ms Novak: They sent it in the mail and I didn't even speak to them.
Mr Kormos: Who's representing you now?
Ms Novak: I spoke to --
Mr Kormos: Is anybody representing you now?
Ms Novak: No.
Mr Kormos: OK. That gentleman right there is Harvey Strosberg. He's the treasurer of the Law Society of Upper Canada. He's the top lawyer in all of the province.
Ms Novak: Yes, I'm aware of it.
Mr Kormos: You've gone through a whole whack of lawyers, right? You need somebody who's going to look at your case and deal with it once and for all. Do you know what I'm saying?
Ms Novak: Yes.
Mr Kormos: So it's done and dealt with. I would suggest that you talk to Mr Strosberg before you leave here today. He's got staff with him. You may need a lawyer who's going to go out of his or her way and do a pro bono. But you've been screwed over enough times that somebody should take up the ball and carry it for you. So talk to Mr Strosberg before you leave here. He's the treasurer of the Law Society of Upper Canada. He's got staff here. He's got another one of his law society members here who would be pleased to talk to you as well.
Ms Novak: I would like to tell you, members of the committee, I'm not here to bad-mouth anybody. Please forgive my language.
Mr Kormos: Don't worry about it.
Ms Novak: I just want to tell you what happened. This should not happen to anyone.
Mr Kormos: You're right.
Ms Novak: No one. My life is not worth more than any one of you and I respect everyone's life. That's all. I thank you for listening.
The Chair: Thank you very much. Any questions from the government members? From the official opposition?
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Ms Castrilli: Thank you very much for coming. I can only imagine the pain you're in and how courageous you are to be here and I do want to thank you.
I don't want to ask a lot of questions because I know it's very difficult for you. What appears to me from this file, and like Mr Kormos, I have been trying to read it as you talked, is that there hasn't been a consistent standard of service with respect to you by either the dental profession or, as you allege, the legal profession.
Ms Novak: It repeats, just on and on.
Ms Castrilli: Yes. As we struggle to try and make a legal aid bill that would help people like you, the question I have for you is, what kind of minimum standards do you think we should include? Can you give us some advice as to what you think should be in this legislation so that what happened to you won't happen to others?
Ms Novak: I don't think we have to legislate. I think we have to raise the standard of our consciousness and behaviour. You can build court houses and legal aid from here to Thunder Bay, if everybody can lie and deny in court. How many are being denied? Do you know how painful it is to hear, "It's not true," when you have solid evidence? Unless we raise the consciousness, we will not go anywhere. It's just more masking and painting over.
Also, legal aid did send me to a collection agency, page 50 of my documents. I had a broken wrist, my apartment was flooded, I had dental pain and I came to legal aid, "How much do you make?" That was the only criterion. They asked me to pay $60 a month, which was very hard for me at that time. But they didn't ask. "Just pay." When I couldn't pay, "You promised to pay; why you didn't pay?" and they sent me to collection agency. This judgement is good for 20 years. That is insane. That is insanity.
Ms Castrilli: Thank you for raising the conscience of this committee.
The Chair: Thank you very much for coming forward today.
LAW SOCIETY OF UPPER CANADA
The Chair: We call our next presenters, the representatives of the Law Society of Upper Canada. If you could come forward and identify yourselves for Hansard, we would appreciate it.
Mr Harvey Strosberg: Thank you, Chair and members of the committee. My name is Harvey Strosberg. My friend Bob Armstrong is with me. I'm the treasurer of the law society. If I may, I'd like to make a few opening remarks.
From about 1967 to 1994, the law society administered the legal aid plan and the government of the day was required to pay the costs, whatever they were. In 1994, the government imposed capped funding upon the legal aid plan. This required the law society, as the administrator of the plan, to make difficult policy choices. Some very deserving people were denied legal aid when they desperately needed it. There was simply not enough money to provide legal services to all those who were deserving. A divergence of opinion developed within the bar. The criminal lawyers wanted the law society to end its involvement in legal aid; family lawyers and immigration and refugee lawyers wanted the law society to continue as the administrator of the legal aid plan.
In June 1997, when I became treasurer, Professor McCamus was doing his report and in August 1997, he delivered his report. Ultimately, convocation, which is the governing body of the law society, decided it was not prepared to make the policy decisions that were fundamentally inherent in operating a legal aid plan under capped funding. The result was Bill 68. I can tell you that the law society supports the bill and that I too support the bill.
This bill has the benefit of establishing a board of directors that is as independent as it can be from government in a practical sense. The society, however, suggests that there are a few amendments that may be considered as improvements to the bill. I'd like to deal with those briefly.
The first is the definition of "service provider" in section 2 and subsection 14(4). The society says that those definitions should be changed to delete references to "paralegal" and "mediator." The reason for that is that there is no definition of "paralegal" or "mediator" in the act. The questions inherent in those definitions are best left for another day. The current practice is that legal services under the act are provided by persons who are lawyers and by persons who are not lawyers under the direct supervision of lawyers.
The second suggested amendment relates to section 91 and deals with the audit program. The society's position is that it would be preferable for Legal Aid Ontario, the new corporation, to request and direct the society to do the audit. The society is in the business of doing audits of lawyers. In this way, legal aid lawyers will not be disadvantaged and clinic lawyers will not be disadvantaged by being subject to two audits.
The third is a technical issue, and that deals with section 18. The society has on hand substantial dollars and those dollars are being turned over to Legal Aid Ontario. It should be clear under section 18 that the law society is released from all the liabilities. That is what the intent of the section is, but our lawyers tell us it could be done a little clearer and we ask that that be amended also.
Those, I believe, may not be contentious changes; I hope they're not. But there certainly is one contentious issue here in the bill and that deals with the question of immigration and refugee lawyers relating to subsection 13(1). There is in the act a provision that talks about immigration and refugee law, the funding being guaranteed for two years. There is no doubt that the obligation for refugee law is a federal obligation. There is also no doubt that more money could be paid by the federal government for refugee law.
I directly raised this issue with the Minister of Justice in August 1998. In the society's opinion and in the society's view, it is wrong to have disadvantaged people, immigrants and refugee people, not guaranteed legal aid under subsection 13(1). The society's view is that immigration and refugee law should be included.
Having said that, I recognize the political problem that is inherent in ingraining that in the statute, because the minute that it's ingrained is the minute the federal government may say: "By statute you have to provide it. Why should we provide more money?" So I understand the political problems, but the society's position is that the moral responsibility and the right thing to do is to ingrain it under 13(1).
Those are my comments. I'd be delighted to answer any questions if I'm able to do so.
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The Chair: That allows us four minutes per caucus. We begin with the government members.
Mr R. Gary Stewart (Peterborough): I have just a couple of questions. It may not be fair for me to ask you this question. It came out at the hearings yesterday, from the Canadian Bar Association. One of the objections they had yesterday was on appointment to the board or to the corporation, that benchers of the law society are not necessarily representative of the lawyers providing legal aid services.
It's my understanding that benchers, and I stand to be corrected, are those who in some way make sure that the lawyers are conducting themselves in a favourable manner etc. Please correct me if I'm wrong. That could be a broad interpretation. But when they came and made this recommendation and objection, I didn't have a chance to ask them why, so I'm going to ask you why. You don't have to answer this if you don't wish to, sir.
Mr Strosberg: No, I'd be delighted to try. The law society governs the profession in the public interest. Every lawyer must be a member of the law society. The Canadian Bar Association is a voluntary organization. Every lawyer does not have to belong to the Canadian Bar Association. The Canadian Bar Association plays a different role. It's interested in things that are good for lawyers. As treasurer of the law society, I say that the treasurer and convocation benchers govern the profession in the public interest. Because we govern in the public interest, there is often tension between the law society on the one hand and the Canadian Bar Association on the other.
I come here and say there are some things that may not be good for lawyers but they're good in the public interest, and I see the Canadian Bar Association disagreeing with me because they say it's too hard on lawyers. I believe benchers who are elected by the profession at large are best suited to make the decisions that relate to what is best in the governing of the profession in the public interest.
In the establishment of this corporation, I was concerned about having a corporation that was providing legal services to people who were effectively, in large measure, fighting with government, because if a person's accused of a crime, it's the Attorney General that is prosecuting. What I thought and what convocation thought was wrong was to have a legal aid corporation that would be controlled by the very Attorney General who would be prosecuting a large number of these people. So this is a delicate balance.
The law society, which governs the profession in the public interest, will put forward a list of five people, and the Attorney General five. You have a balanced board that is as close as you can get to having a board that's independent. It doesn't say there has to be three benchers on the board; it says there can be no more than three benchers. A person shouldn't be disqualified from being on the board because she or he is a bencher. It's simply saying no more than three.
Mr Stewart: You don't have any great objection to having up to three on that board.
Mr Strosberg: It creates an appropriate balance. If the CBAO or some other organization was saying that they'd like to have a nominee on the board, I think that's simply wrong. The law society governs the profession in the public interest. These other organizations are interested in criminal lawyers, or in immigration lawyers, or the Canadian Bar Association in the legal profession, in their own interests. Those are appropriate interests to be represented, but not I believe on a board such as Legal Aid Ontario.
The Chair: We now move to the official opposition.
Ms Castrilli: Thank you very much for being here. Everyone's been talking about the law society in the last three days of hearings. It's great to hear it from the horse's mouth.
Mr Strosberg: I'd like to be called a lot of things but not a horse.
Ms Castrilli: Well, the mouth is better than other parts. If I may, I'd like to make a comment because you brought up the issue of immigration-refugee. I think it's very important to focus on that for just a moment, although I really want to ask you some other questions.
We had a very thorough presentation our first day of hearings from the Roman Catholic diocese of Thunder Bay, which has a reputation for doing groundbreaking work with refugees in the north. They addressed this issue of whose responsibility it is, the federal government or the provincial government, to provide for refugees.
They advanced some very interesting arguments. First, that there are certainly some conventions out there that Canada is a party to. I've asked the researcher to follow up on that because it's very important. I've been assured we'll receive that information this afternoon. The comments they also made are that you can't say that we're not going to provide assistance at the provincial level for refugee and immigration because it's federal jurisdiction, because if you say that, then you're actually saying that you won't provide it for criminal law either because that's also a federal jurisdiction. If you have an opportunity to read that brief, I'd be interested in your comments because it's clearly not what you're saying.
Mr Strosberg: I haven't seen that brief.
Ms Castrilli: We will get research this afternoon. I'd be interested in some of your comments.
Mr Strosberg: I think there's a difference. The administration of justice in the province is a provincial responsibility. That's the distinction between criminal law. I agree that Canada is a party to the fourth Geneva convention which was enacted in August 1949 and the protocol under the Geneva convention. That's why refugee law is different. There's a different tension relating to refugee law than immigration or criminal law.
Ms Castrilli: Absolutely, but you also know that the federal government and the provincial governments enter into negotiations in all kinds of matters, that this is an issue that could be dealt with, should be dealt with under the general transfer of funds. I don't think it's just as easy to say it's a federal responsibility and we shouldn't deal with it.
I want to ask you, how much say did the law society have in the drafting of this bill?
Mr Strosberg: I think it's fair to say that the law society was involved in close consultation with the Attorney General's department and was very concerned about ensuring there was an appropriate balance. What I was very concerned about is ensuring there is, as much as possible, an independent corporation for the reasons I've said in response to your friend's questions.
Ms Castrilli: That's fine. We've had a lot of evidence here over the last three days from all kinds of groups that have said, "Look, under the current legislation, environmental law is there, immigration law is there." We've had aboriginal groups saying: "There is an aboriginal law clinic. We'd like those things protected in the legislation." How vigorously did you pursue the inclusion of groups such as those and the continuation of the legislation as it exists?
Mr Strosberg: Ms Castrilli, I didn't because I think it would be wrong to ingrain it, just as 15 or 20 years ago there was no aboriginal clinic. There may have been a need for it. Ten or 15 years from now, there may not be a need for a particular clinic for a variety of reasons. When there's capped funding, policy decisions have to be made. Some worthy areas and some people who are entitled to legal aid services are not going to get legal aid services once you decide you're going to go into capped funding.
The board is going to have to make policy decisions. This committee isn't in a position, I say respectfully, to be able to weigh forever in the future. That's the reason the definition of "clinic" talks simply about clinics. I think it's quite right to be in that fashion because the board, which will be a representative board and which will have the benefit of subcommittees and advisory boards, will make decisions. As I read the legislation and the intent, $32 million is intended to be earmarked for clinics, which is precisely the same amount. As I understand it, there are no plans to change existing clinics.
People who have clinics have an interest to say, "I want you to perpetuate me." I say that's not the purpose of this legislation, to perpetuate a clinic in a particular area, because on a policy basis it may be that something is more deserving or some money has to be funnelled off to something that's more deserving.
The Chair: We have to move to the third party.
Mr Kormos: You say refugee law is a federal obligation.
Mr Strosberg: It is.
Mr Kormos: As Ms Castrilli indicated, we're getting all sorts of mixed opinions in that regard.
Mr Strosberg: It's my opinion, for what it's worth, based on the advice I have, that refugee law is a federal responsibility. What the federal government has done is it has moved refugee law into the same bill as immigration and treats immigration and refugee law as the same. A refugee is somebody who flees from somewhere and comes to Canada as a safe haven; an immigrant is someone who comes here as a matter of choice. Canada has an obligation to deal with refugees in a different manner, because of international conventions, than it does immigrants.
When I dealt with the Minister of Justice, I took the position that the federal government was not heeding its obligation, in terms of refugee law, to legal aid. They substantially cut the contribution. I did this in August 1998, this past August, when the minister was speaking to a number of the law society who raised this issue particularly with her because the law society has the obligation to administer the plan.
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Mr Kormos: Understand, I'm not defending Chrétien and his Liberals.
Mr Strosberg: I thought you were.
Mr Kormos: By no stretch of the imagination. They're as much scoundrels and as much a partner in the downloading with the Tories as anybody could be. They downloaded on to the province. It's a matter of, "How do you like it so far, Mike Harris?" because that's what he's doing to municipalities across the province.
Mr Strosberg: Is this a question or a speech, Mr Kormos?
Mr Kormos: It's both, Mr Strosberg. That's the risk you take when you leave four minutes per caucus.
I agree that refugee law is a federal jurisdiction, but so is the Criminal Code, so is --
Mr Strosberg: The administration of justice is a provincial responsibility under the Constitution Act.
Mr Kormos: What about aboriginal law, which seems to me to be a mixed bag in both exclusively federal jurisdiction and some modest provincial role?
Mr Strosberg: You and I can discuss constitutional law; I don't know that that's going to help us at this point. I'm sorry, what's the point, Mr Kormos?
Mr Kormos: The point is that you seem to be joining with the government in merely wanting to lay the blame at the feet of the federal government, when in fact it's the province that provides legal aid services.
Mr Strosberg: You must have misunderstood me. I said that I thought and the society thought that section 13 should be changed to include refugee and immigration law. Having said that, I said I recognized the inherent problem in doing that. But I came here saying that I said, on balance, I believe the moral decision is right to put it into subsection 13(1), and I think that puts me opposite of what the legislation is.
Mr Kormos: No, I think it has you straddling the fence and having the best of both worlds.
Mr Strosberg: I don't think it does, Mr Kormos.
Mr Kormos: It's easier for me to observe your position than it is for you to observe your own.
Why would you support or bolster the argument that refugee law is somehow distinct from other areas of law with federal jurisdiction such that the federal government has an enhanced responsibility vis-à-vis that area as compared to others?
Mr Stosberg: Because, Mr Kormos, it's not a question of me doing anything but telling you what my honest belief is. You may disagree with that and you're entitled to it. You're a lawyer just as well as I am and you can make that determination. I can only tell you what my legal opinion is and I believe there is a distinction between refugee law on the one hand and immigration law, which has shared responsibility and administration of justice, which is another.
I had the research done. Having said that, convocation's position and my position is that the legal aid plan would be better if services for refugee and immigration law were ingrained in section 13. That is what the society's position is. So you and I are the same; you're just saying I'm not putting it strongly enough to the committee.
The Chair: Thank you very much for coming forward with your presentation.
Mr Strosberg: I'm grateful that you've given us the time, and I thank you for your attention.
Mr Kormos: Chair, on a point of order: Once again, I forgot to ask either of these two people if they do legal aid work in their practice.
The Chair: That was your opportunity in your four minutes. You do not have that time now.
Mr Strosberg: I do better than legal aid. I act for a lot of people; I just don't get paid anything.
The Chair: Thank you very much.
CANADIAN MENTAL HEALTH ASSOCIATION, ONTARIO DIVISION
The Chair: We would call upon our next presenters, the Canadian Mental Health Association, Ontario division. If the representative or representatives of the association could come forward and identify themselves for Hansard prior to beginning, we would appreciate it. Thank you for coming. You may begin.
Ms Ruth Stoddart: Hello, my name's Ruth Stoddart, and I'm here to represent the Canadian Mental Health Association, Ontario division. At the CMHA I do primarily policy work but I am also a lawyer, although I don't do direct legal services out of our office.
The Canadian Mental Health Association is part of a larger national organization that's actually 80 years old this year. We've existed in Ontario for 40 years and in Ontario the association consists of our office and 35 branches that provide direct services for people with mental illness. Those branches all provide community-based services, and although they don't directly do legal work themselves, they certainly refer a lot of their clients to legal services.
I'd like to start with a bit of an introduction about some of the problems that people who have mental illness face in accessing legal services. They're often doubly stigmatized in that people with mental illnesses may not be able to hold down a full-time job because of the cyclical nature of their illness and so may have low incomes. Also, if people are able to access legal services, there is sometimes a problem accessing a lawyer who does have experience in working with people with a mental illness and is willing to spend the time and take the effort to provide the extra assistance people may need.
I'd like to also reiterate some of the comments that you may have heard already from ARCH, which is the specialized legal aid clinic for people with disabilities, that concern people with disabilities and their problems with legal aid services. There are four points that ARCH made to the Attorney General and I'd like to reiterate them.
First of all, and this is particularly applicable to people with a mental illness, someone's disability may make a particular legal issue more complex. Probably the most ready example that comes to mind is the criminal responsibility sections of the Criminal Code that have to do with people with mental illness.
Secondly, as I've mentioned, people with disabilities may have difficulty trying to represent themselves in a legal action if they're unable to get legal services.
Thirdly, as I've alluded to, people with disabilities often have low incomes and may not be able to pay for legal services.
Finally, the cost of legal services for people with disabilities may be substantially more than costs for someone without a disability.
For some of those reasons, our organization was certainly pleased to see the first section of Bill 68, the purpose section, which sets out, we believe, some things that will help protect various special populations or people with disabilities; things such as providing legal aid services in a cost-effective and efficient manner but encouraging also flexibility and innovation in the provision of those services through both the private bar and the clinic system.
Something else we felt was very important is the requirement throughout the legislation that the needs of people for legal aid services be assessed and recognized.
Finally, the independence from the government of the proposed Legal Aid Ontario Corp.
To discuss some of the issues we had with Bill 68 directly, the first thing I'd like to talk about is governance. We are pleased to see that Bill 68 proposes the creation of Legal Aid Ontario, which is to be an independent corporation that will provide legal aid services. Certainly we believe that an independent corporation is necessary so that the corporation is not only seen to be independent but actually is independent. In our experience we know that only people who are truly seen to be independent from government are believed to be so.
The Canadian Mental Health Association did have a couple of concerns regarding the governance of Legal Aid Ontario, the first one being the composition of the board of directors. As the previous presenters mentioned, the board is to be composed of essentially people selected by the Attorney General, half recommended through the law society and the other half directly from the Attorney General.
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We were a bit concerned about the fact that this may mean that not only could the board end up being fairly Toronto-centred, which is a concern as far as respecting the needs of people outside Toronto is concerned, but also that the board could end up being fairly professionally-oriented. I'm aware that paragraph 5(4)5 talks about people with experience in certain areas, including people who are familiar with the social and economic circumstances of disadvantaged groups. I think caution will be necessary, though, to ensure that representation on the board is truly representative of the people who Legal Aid Ontario is going to serve. We've recommended that a provision be included regarding the board similar to that in the proposed clause 34(5)(a), which provides for both community members and service recipients on the board, because we believe the board would be far more representative.
A similar concern exists with the advisory committees to the board. Section 7 establishes various advisory committees to the board. Certainly we believe that these committees should include community members.
A second consideration is that subsection 7(1) indicates that it's mandatory that "The board shall establish an advisory committee in each of criminal law, family law and clinic law and in any other prescribed area...." We question, though, in section 13, when the services that are provided by Legal Aid Ontario include the traditional family, criminal and clinic law but now also include mental health law, why mental health law is not also included as an area with a mandatory advisory committee if it's going to be a mandatory area for services.
As far as the actual delivery of services, the Canadian Mental Health Association recognizes that services are now and should continue to be delivered in a variety of ways: through the clinic system, through certificates and through the private bar. The one thing that our organization was extremely pleased to see, as I've already mentioned, was the inclusion of mental health law in section 16 as an area of law that will be covered by Legal Aid Ontario.
We did, however, have some questions. Section 13 seems to be the only mention of mental health law directly anywhere in Bill 68. The comment that we would like to make is that there's no definition of "mental health law" anywhere in Bill 68. It's our experience that not only does mental health law involve what's traditionally civil law --it's covered by some of the clinic systems, for example, under the Mental Health Act, the Health Care Consent Act, the Substitute Decisions Act -- but also is very much involved with the Criminal Code through the mental disorder provisions. We would suggest that mental health law should continue to be provided, as it is now, by both the private bar, particularly on the criminal side, and through the clinic system.
Something else that we were interested to see was the part of Bill 68 which talks about needs being assessed for legal aid services throughout the province. The clinic system now uses community consultations, community input to determine client needs, and the Canadian Mental Health Association believes that it's very important for local needs to continue to be brought forward, perhaps through the clinic system or through other community consultations so that they can be considered at the provincial level by the board in its priority setting.
I've indicated in our paper that it's not very difficult to imagine situations where needs could be very different in different areas of the province, for example, for persons with mental illness. Quite often when people are outpatients from provincial psychiatric hospitals or schedule 1 units of general hospitals or have recently been discharged, they may remain in the community where they were an in-patient. Certainly those communities would have an increased need for people with experience in mental health law on both the criminal side and the civil side, so we think it's quite important that different needs be recognized in different areas. This would relate to priority setting as well, that priorities may be different in different areas of the province.
The Canadian Mental Health Association is also quite pleased to see the provisions in Bill 68 that concern quality control and evaluation of services that are to be provided by Legal Aid Ontario. For example, section 59, section 37 and section 70 all provide for accountability and quality control mechanisms. Again though, as with the advisory committees and with the board, we would urge that consumers of services and people in local areas not only have input in determining goals and priorities and needs but also in evaluation of whether or not those needs were satisfied. We think it's very important, in measuring whether or not needs are being satisfied, that not only outputs be considered -- for example, numbers of cases processed or number of people processed -- but also the outcomes: what people who received the services actually thought of those services.
One concern the Canadian Mental Health Association does have about Bill 68, and we certainly expressed this in prior consultations with the Legal Aid Review, is what appears to be an allowance for the continuation of block contracting that's beginning with legal aid services. Probably the way I like to think about it is that it's very similar to managed health care, which is very prevalent through the US and there's a lot of fear that it's going to exist in Canada.
Under block contracting a certain block of cases, usually in a particular area of law, would be contracted out to a lawyer or group of lawyers. With managed health care what's happened in these sorts of situations is that people will -- it's usually referred to as "cream skimming" or "adverse selection" -- people will only take the easiest cases or the clients who are the easiest to serve. If they have to take a block of cases that includes maybe more difficult-to-serve clients, those clients may only get their two hours or $100 worth or whatever of service, and people with disabilities, as I've mentioned, may need more time or more assistance than those block contracts may allow. As a result, our organization would urge that block contracting, if it's going to be continued, be piloted and be thoroughly evaluated to make sure that some groups are not being discriminated against.
In conclusion, I'd like to thank the committee for this opportunity to make a presentation and to urge the committee to consider the needs of vulnerable people and people with disabilities in thinking about Bill 68.
The Chair: Thank you very much for your presentation. That allows use two minutes per caucus and we begin with the official opposition.
Ms Castrilli: Thank you very much for your presentation. Mental health law, as you've pointed out, is only mentioned in section 13. I guess the concern really is, what flows from that? We know that clinic law is going to be funded for three years. We know that immigration and refugee law is going to be noted for two years. What does this act say to you about funding for mental health law?
Ms Stoddart: I honestly can't speak to that because it wasn't something I considered. As a lawyer, I don't practice and certainly I don't do any kind of either directly paid or legal aid work, so I honestly didn't consider that when I was reading it. I think, though, funding for mental health law is certainly important and is probably going to become increasingly more important as provincial psychiatric hospitals are closed and as people are released from general hospital units. Things like representation at review boards and capacity board hearings as well as in landlord-tenant matters, social assistance matters are going to become more important.
Ms Castrilli: Could tell us a bit about the funding now as it exists for mental health law? Do you think it's sufficient? Is it too much?
Ms Stoddart: Mental health law right now is done primarily either through clinics or, on the criminal side, through the certificate system. I belong to a group that's called the Mental Health Legal Committee. It's a group of both private practitioners and people working in the clinic system who do primarily defence side mental health law. What I hear from that committee is that quite often on the private practitioner side, with certificates the time-giving is not long enough to adequately prepare and represent a case for someone with a mental illness because it takes longer, often, to assist that person or because they may have complex legal needs. Probably the main one that does a lot of mental health law is Parkdale Community Legal Services in Parkdale. A lot of their clients have mental illnesses and I know they spend probably more time with a lot of those clients than they would with someone without a mental illness.
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Mr Kormos: I've got to tell you, I am not as concerned about there being a lack of an exhaustive definition of mental health law as others might be. The fact is, it is included and a whole lot of other areas have been omitted. The real issue at the end of the day is the level of funding, the adequacy of funding. You can list all the kinds of law you want, you can have an exhaustive list of what you or others might understand to be mental health law, but if it isn't funded, it means squat, it means zip.
My concern with the bill is that there's no means whereby the corporation is ensured adequate funding. There's no minimum standard in the bill as to the provision of legal aid services, be it clinic or private bar. There's no independent arbitration that the corporation can go to, to guarantee that it has adequate funding. I'm just one little voice here and I'm just from small-town Ontario. Do you think I'm off base in having concerns about no guarantees as to adequacy of funding?
Ms Stoddart: No, I think there are concerns as far as adequacy of funding, not just in legal aid but in literally all services right now. Our organization is arguing for funding for people with mental illness, and others from other organizations for other groups. If the services are provided in an effective manner and there is some sort of accountability for the funds that are spent -- I realize there is going to be a problem in certain areas or with certain people.
Mr Kormos: You got a 30% cut in your provincial income tax. You may not know it, but you did. I believe it; I'm told we did. Would you forfeit that so-called cut to your provincial income tax if it meant adequate funding for legal aid services for, among others, persons with mental illnesses? Would you say, "You can keep the 30% income tax cut if that's what required to adequately fund public health, public education and legal aid"?
The Chair: Thank you, Mr Kormos.
Mr Kormos: You can answer that.
The Chair: Thank you, Mr Kormos. We now move to the government members.
Ms Stoddart: I'll talk to you after.
Mr Stewart: After that question, Ms Stoddart, I would certainly agree with what you suggested back halfway through your presentation, that we don't need all lawyers on this committee, to say the least. I guess probably --
Ms Castrilli: Is that a slur?
Mr Kormos: Wait until you need one. Wait until it's 3 in the morning and you're getting seduced --
Mr Stewart: Not when a particular lawyer asks that type of impertinent question which is probably none of his business.
Ms Castrilli: On a point of order, Chair: I want to note for the record there are no lawyers on the government side.
Mr Stewart: I hear you when you're saying that you're concerned that this could be very Toronto-based and that there could only be the legal profession on it. That concerns me as well, because I think people who maybe are neutral can have just as much to offer as those who are solely involved with a particular issue.
The other thing is that, representing a riding in rural Ontario, I want to make sure that the folks who need these types of services, who are mentally ill, are going to get them and are going to be represented well by those who do respect that there is an area other than Toronto in this province.
One thing that did perk up my ears -- I believe Mr Kormos brought it up -- was accountability. Do you feel that there is good accountability in the system? Do you feel that your clients, who are the mentally ill, who are in many cases vulnerable and so on, are being in some cases taken advantage of in this particular thing?
Ms Stoddart: Are being taken advantage of?
Mr Stewart: Taken advantage of by this present system.
Ms Stoddart: I wouldn't phrase it as being taken advantage of. I would phrase it as probably not being accommodated to the extent they should be, the recognition not being there that people, as I've said, may need more time or more assistance.
Mr Stewart: The reason I asked is because that's why we're changing the bill.
The Chair: Thank you, Mr Stewart. Thank you very much for coming forward with your presentation today. We very much appreciate that.
Ms Castrilli: If I might, I have a question. We've received from one of the area directors of the Ontario legal aid plan, Robert Buchanan, a memorandum which speaks to the issue I raised before of whether non-lawyers are in fact able to receive a legal aid certificate. As I note what our researcher presented, I noticed there are some additional provisions in the memorandum that was given to us. I wonder if I might just ask the researcher to look at those provisions and incorporate them into this memorandum, if applicable, so we have a full picture of --
Mr Fenson: My memorandum doesn't have every single provision that speaks to it anyway.
Ms Castrilli: All right. Could you just confirm that interpretation of what we have before us that was sent by Mr Buchanan, if that's in order?
Mr Fenson: I looked at it. Some of them are in my memo. There are some --
Ms Castrilli: Yes, I do notice that. There are others that, not having the act in front of us, I would appreciate if you could just confirm for us. Thank you.
ST LEONARD'S SOCIETY OF CANADA
The Chair: We will call our last presenter of the morning, if the representative or representatives of St Leonard's Society of Canada could come forward. Thank you for coming.
Ms Elizabeth White: Good afternoon and thank you for allowing us to present today. My name is Elizabeth White. I'm the executive director of the St Leonard's Society of Canada which, as you may know, is a not-for-profit organization working primarily with people in conflict with the law and those at risk of coming into conflict with the law. For over 30 years we've offered transitional housing, employment counselling, substance abuse work and, importantly, employment and life skills training.
Because of the nature of our work, we come in direct contact with many who require legal aid, particularly those who require criminal justice legal aid. You've heard good descriptions of who those people are and I'm not going to reiterate it for the record at this time.
We are very pleased to see the proposals that are coming out now. We think Bill 68 will go a long way to ending the uncertainty that has plagued the legal aid system and has plagued the lives of those who've needed support in the criminal justice system for the last several years. We're also pleased that the entity is looking slightly less corporate in structure, although corporate in nature, by having its name be legal aid, which we consider to be more descriptive. We're very delighted that a pluralistic system of service delivery is being retained. We consider that to be one of the core matters in this act.
There are some sections of the act, however, which do cause us concern and we submit they should be changed. They're in the areas of limitations of the objects of the corporation; composition and appointment of the governance body; mandate of the transitional board; and the manner of prescribing areas of non-coverage.
Turning first to the limitations of the corporation's objects, clause 4(b) states that the "policies and priorities for the provision of legal aid services" shall be based "on financial resources." That's repeated in section 12. It is clearly important and necessary that the new corporation operate in a fiscally prudent manner, but it is crucial that there be vested in that body which manages legal aid the responsibility to consider the overriding requirements for legal assistance for Ontarians, regardless of whether or not adequate funding is in place at any given time.
Comments in the McCamus review had suggested that where resources were lacking, the new corporation should explore arrangements within the legal community at large. That could be one way. However, the general provision of advice to the Attorney General on matters affecting legal aid, which is found in clause 4(f), doesn't compensate for the limitation in the previous subsection. In order to maintain confidence in the scope of Legal Aid Ontario's mandate to give full justice to legal aid needs, it would be appropriate to delete the words "based on its financial resources." There are many other factors than money alone that have to be involved in these decisions, and to mention one without others is to give undue prominence to it and to possibly skew the decision-making of the new corporation. We don't think that was anybody's intention, so we suggest the legislation be changed.
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In terms of the composition and appointment of the governing body, we think the provisions of subsections 5(2), (4) and (6) unduly politicize the process. They have the potential to cause the body to be seen merely as an arm of government rather than an independent body. The fact of and the appearance of independence are essential to confidence in the system as an impartial decision-making entity.
The current wording of subsection (2) places an unnecessary burden on the person of the Attorney General, whose role must be prescribed by the exigencies of partisan politics. As a politician, to rest such full control of the governance composition on one individual's shoulders is to create the impression that the corporation may be a creature of the politics of the day. Rather than place that burden of selection of directors intended to reflect all Ontarians' needs so completely in the Attorney General's hands, we urge the use of a more broadly based decision-making process. With the best of intentions on the part of all concerned, the current provision will not allow the impartiality of decision-making to be seen to be done. Clause l(d) stipulates that the corporation shall "operate independently," but at this point the perception of independence is not borne out by the later sections.
With regard to subsection (4), St Leonard's Society believes that the ordering of the criteria for selection could be improved. Again, it's not in doubt that sound management is important, but by placing it as a first criteria the legislation strongly directs that these shall be the first considerations in appointment selections.
The body that's being governed is for legal services and awareness of legal matters and needs should, in our view, be a first priority of selection. Diversity on the board will be a benefit that will keep a broad range of factors on the table; but these are matters of law, after all, and law should be the first priority.
Given our concerns as previously noted, it's consistent that we have reservations about subsection (6). The very fact of being a lawyer should not in itself be enough to disqualify one from membership on the board as a result of a quota. In fact, given that the matters to be governed by the board, by and large, will relate to legal matters, one might suggest that a majority of persons should be lawyers. But in our opinion the provision is best removed and no quotas used.
The transitional board: We think it's a good thing that there's going to be a transitional board because what's going to change is going to be huge, it's going to take time and there are going to be complications as it goes along. But we have some reservations concerning the specific provisions set out in sections 9 and 10.
Owing to the range of matters within the mandate of the board, and the fact that there are no time limits set for its mandate, there is a clear possibility that the framework for the future functioning of Legal Aid Ontario will be set in stone long before the first board is appointed. The composition of the transitional board is even more politicized than that of the permanent board by virtue of the fact that the Attorney General is, at most, required to "consult" with the law society prior to making the appointments. St Leonard's suggests that a clear time limit for, and limitations on, the functions of the transitional board be set.
The board also is only required to report to the Attorney General, and given the massive amount of change that is happening at this time, we think public reports on its activities would also be an appropriate inclusion in the legislation.
Turning to some of the areas of coverage, the enumerated areas of coverage in section 13 include mental health law. The previous speaker spoke very eloquently about a variety of aspects concerning mental health issues. We have concerns that access continue for these clients. They are in growing numbers and they are often charged with relatively minor criminal matters and therefore may have trouble accessing full service within legal aid. Special consideration we think must be given at the intake stage of the system to the needs of mental health clients. In general, they are going to require, as previously noted, quite experienced counsel if they're to get fairness at trial and be fully represented.
Turning to clause 13(3)(e), it's a sweeping generalization and it may well be seen to be a catch-all to deal with all manner of civil matters not specifically enumerated. We don't think everything should be set out in the legislation. That's not possible; that wouldn't even be desirable. Legislation needs to be broadly based. But its goal of limiting civil matters we think would be better covered through the policy process of the new corporation rather than through this kind of phrase. It's more flexible to do it through policy and it's less obviously giving tremendous control into the regulatory process. It's keeping it back at the policy level.
Having said you can't set out every specific concern, there is in fact one area of specific concern that the St Leonard's Society thinks should have been enumerated, and that is the area of representation at parole and corrections hearings. Prisoners in particular have little access to outside resources and they are often significantly limited in their ability to respond to charges laid against them by corrections authorities.
As you've had noted by previous speakers, especially the Elizabeth Fry Society, there have been substantial regional disparities in the availability of legal aid for these clients. We support the position of Elizabeth Fry, which recommends that in section 2 corrections law be added in as an enumerated area.
A final matter we would like to bring to the committee's attention: In the course of announcing the development of a new youth justice strategy, Minister of Justice McLellan has indicated that the new legislation may give provinces an opportunity to recover legal aid payments on behalf of a young person from an adult in a position of responsibility for that youth.
The provisions set out in section 42 of Bill 68 indicate that the ability to contribute of persons responsible for others will be a factor in determining payment arrangements. There's a strong possibility that factors other than the best interests of a youth may be brought to bear on the course of legal representation afforded that young person if access to independent counsel is affected by the potential that an adult can be forced to pay. It's not always the case that adults responsible for the financial welfare of a young person have only the youth's best interests at heart where financial considerations are concerned. For our legal aid system to be most responsible to those who are most vulnerable, including our young people, it's crucial that their legal representation should not be governed by considerations beyond the legalities and the best interests of the youth.
We do consider, as I stated at the beginning, this legislation to be a positive step towards securing a solid resource for legal aid services in Ontario, and we believe that with a few modifications it can, will be and will be seen to be the independent, impartial entity we would all want to provide assistance to Ontarians.
I thank you for your time and would welcome any questions.
The Chair: Thank you very much. That allows us just under three minutes per caucus and we begin with the third party.
Mr Kormos: What about concern as to the absence of any legislated minimum standard? That is to say, there's nothing in this bill that says what will be the minimal level of services that will be acceptable. Does that bother you?
Ms White: Lack of funding always bothers me when it comes to social services that are necessary for the welfare of Ontarians, but I don't think you can legislate money.
Mr Kormos: I'm not talking about funding. I'm talking about the fact that the bill does not indicate what constitutes a bare-bones and minimal level of legal aid service. That is to say that if it's related to funding, it means that this government or any subsequent government can gut legal aid by simply defunding it. The corporation will have no legislated argument to make saying, "But the legislation says there has to be at least this much in terms of services."
Ms White: I didn't specialize in legislative drafting when I was practising law, but it seems to me it would be very difficult to place into legislation for this kind of corporation those minimum standards. I think we lost the ability to have that when we decided that our law society was no longer going to run legal aid.
Mr Kormos: It's been proposed that there perhaps should be some form of binding arbitration that the corporation has access to to determine an adequate level of funding. Would you support that proposition?
Ms White: Absolutely.
Mr Kormos: That would mean that the government couldn't unilaterally determine the level of funding for legal aid.
Ms White: I expect they still could do it unilaterally, but there would be recourse.
Mr Kormos: Quite right.
Ms White: Precisely.
Mr Kormos: What do you say to the argument -- and I don't know if you were here -- that supports the elimination of -- and I appreciate refugee and immigration law is not perhaps as much in the bailiwick of St Leonard's Society as some other areas, but I suggest that you probably have encountered it in one way or another during the course of your various operations across the province. What do you say to the argument, and I don't know if you were here, that supports the elimination, the omission of refugee law? Is that something that concerned you at all during the course of your review of the bill? You know that's been an issue. It's been discussed today, as it has earlier this week.
Ms White: It has. I'm sorry, I have no comment on it.
Mr Kormos: As to your brief submitted with respect to this, was this the result of any consultation with the ministry by way of briefings from the Ministry of the Attorney General? Did you have access to those?
Ms White: Yes, the project team consulted with us on several occasions.
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The Chair: Now we move the government members.
Mr Stewart: Good morning. We meet again. It was pleasant to be invited to your convention when you were in Peterborough. Just a couple of comments. First of all, it's easy to request more money and more funding. I appreciate your concern. I think we all have that same concern. But over the last couple of days we have been hearing that word "accountability." Maybe there has been adequate funding, but the accountability of the funds may not necessarily have been a priority. Any comment on that? Not to put you on the spot, but a lot of people say, "You're cutting back on funding," but then if you look at it, maybe the funding was there, providing it is used well and accountability is the priority.
Ms White: My sense in watching the client base growing and turning to self-representation rather than being able to access government funding for legal aid certificates would suggest that there have been insufficient funds. I've seen very few wealthy criminal lawyers in my day.
Mr Stewart: The other one is this corporation being an independent body. How you would see the board being made up? You made the comment that there shouldn't be a quota on lawyers. That may or may not be. I believe that there are a lot of other people out there who have the ability to sit on this board. How do you foresee the makeup of the board?
Ms White: I think the composition should be determined by getting the diverse balance that you need to meet the objects of the corporation, so, people skilled in the areas where coverage is needed. Poverty law. Management? Yes, but just not management first. Management is an ancillary to providing the goals of good legal aid. It's not that I think everybody should be a lawyer, heaven forbid. I do think that being a lawyer shouldn't disqualify you. For instance, if I were being considered for this board because of my knowledge of the needs of criminal clients and so forth, would it be appropriate to disqualify me because I'm a member of the Ontario bar? I don't think so.
The Chair: We move to the official opposition.
Ms Castrilli: I'd like to ask one question and then I'd like to defer to my colleague from the third party to continue his line of questioning, which I thought was very interesting. I don't want to tread on what he was about to say. I will ask you about the appointment process for the board, because you say what's in here is not adequate and you'd like to see something broader, more public. What specifically would you like to see?
Ms White: We're talking about the permanent board now. I would like to see the Attorney General not being required to choose just from an extensive list that is provided to him, but rather some more continuation of the balanced role, that the Attorney General, the independent third party and the law society, for instance, have to come to agreement.
Ms Castrilli: Would you welcome a legislative process, for instance? Would a committee such as this --
Ms White: There are worse ways.
Mr Kormos: Again, what was the nature of the consultation with the working group?
Ms White: Meetings with the project team; opportunity to make written submissions.
Mr Kormos: In response to draft legislation?
Ms White: Not in response to draft legislation, no.
Mr Kormos: What were the issues of concern to St Leonard's Society when they had those opportunities?
Ms White: The same ones we're raising today.
Mr Kormos: So your concerns weren't addressed by the working group.
Ms White: My concerns have been addressed in part. There's been a better balance in terms of moving towards Legal Aid Ontario. In my brief I say that it is more than simply semantics to call the organization by what will be known by its consumers as its function. There have been steps taken in that direction. I think there has been decided movement towards preservation of pluralistic service delivery. That's really crucial, the need to retain access to individual lawyers as opposed to all of any one model. It's extremely important. I have the same concerns about the block offloading of cases as the previous speaker had.
Mr Kormos: Now, McCamus is here this afternoon at 2. I guess we'll be hearing comments directly from him. You're the last presenter this morning. What prompted St Leonard's Society to make this submission today in view of its role in the process as the bill was being prepared?
Ms White: To keep on the record the needs of our clients for a fair, impartial, independent legal aid system.
The Chair: Thank you very much for coming forward today. We very much appreciate your taking the time.
Just prior to the committee recessing, we've had a request to fill the vacant 2:40 slot. The only way that can be accomplished is if there is unanimous agreement within the committee for that to go forward. Is there unanimous agreement to allow that slot to be filled? So be it.
This committee is recessed until 1400 of the clock today.
The committee recessed from 1217 to 1402.
The Chair: I call the committee back to order.
OSGOODE HALL LAW SCHOOL
The Chair: At this time we have a representative from Osgoode Hall Law School. Could you come forward and identify yourself for Hansard. You may begin.
Mr John McCamus: Thank you very much. I'm John McCamus. It's a great pleasure for me to appear before this committee and speak to the new legislation on legal aid. As you may know, I had the great fortune and honour of chairing the Ontario Legal Aid Review, and so I feel close to this subject and have been a keen observer of the government's treatment of it in recent months.
I want to begin with a simple and straightforward point. I think this is a very important piece of legislation. I think it is a very strong piece of legislation that is a harbinger of important reform and change in the legal aid system. I am an enthusiastic supporter of it. I congratulate the Attorney General of Ontario for acting on this matter and doing so in a way that I think brings with it the prospect of comprehensive reform of the legal aid system and the solution to many of the problems the system has suffered with over the last several years. It's no exaggeration to say that the legal aid system has been in a crisis state for the last several years. Crises are not pleasant or nice things. Sometimes they produce constructive change, and I think this is a situation of that kind.
I won't go on at length about why I admire this bill. Let me simply say this: In the course of our work on the Ontario legal aid system, the Ontario Legal Aid Review did an extensive study of the existing system and its problems. We wrote a rather lengthy report, as you may know. In chapter 8 of that report, we tried to draw together all the threads of the analysis that weaved in and out of the various chapters and to prescribe what we saw as a recipe for constructive and dynamic change in the legal aid system. We set it out in the form of 12 propositions.
I won't take you through them in detail, but we talked about the focus of the system being access to justice. We talked about the desirability of building a system based on an assessment of the needs of the clients of the system. We talked about quality of service as an issue and identified some difficulties on that topic. We talked about the difficulty the system has had in setting priorities, and suggested some ways of resolving those difficulties. We talked about the need for accountability. We talked about the need for cost-effectiveness in the delivery of legal aid services.
We talked about the need for the legal aid system to be more innovative in its choice of delivery models, in its balancing and mixing of delivery models to meet the needs of clients of the system. We talked about the need for the legal aid system to have a voice on law reform of the system or reform of the structure of the administration of justice in ways that would relieve the pressure on the legal budget. If there are unnecessary procedures, procedures that could be made more effective, made more efficient, the legal system is in an ideal position to identify those problems. They are in an ideal position to draw them to the attention of the government at the time they are seeking funding, and they can point the government quite directly to some problems that are increasing the need for funding for legal aid. We thought it was important to specifically indicate that that kind of law reform is very much within the mandate of the legal aid plan.
We talked about the desirability of being able to meet the needs of the wide constituency, the types of clients who come before the legal aid system and ways in which the system could respond to those needs. We talked about the need to reform the governance of legal aid and to create a governance structure that would attract public credibility and legitimacy and palpably have the ability to discharge the mandate of the system in the public interest. We talked about funding, we talked about legal aid, we talked about some other topics as well.
When I read through this bill, I find that those principles have been embodied in the legislation in various ways. I am extremely hopeful that the bill sets legal aid on a new and productive course. Certainly, on behalf of the members of the Ontario Legal Aid Review, I can say that we feel very gratified by the care and attention that was taken by the Attorney General in looking at this subject.
I indicated that I have one or two concerns, and I'll be very brief, on the assumption that perhaps the most useful thing we could do would be to have a discussion. I do have one or two reservations. In particular, section 13, as you know, deals with the coverage of the legal aid scheme. I notice with some dismay that while subsection 13(1) does indicate that services shall be provided in the areas of criminal law, family law, clinic law and mental health law, nothing is said of refugee and immigration law.
As you are well aware, a significant amount of service is being provided at the present time to refugees and new Canadians who have legal problems in refugee and immigration law matters. I am worried that the absence here of a reference to refugee and immigration law may be a harbinger of some reduction or elimination of service in that area. I'm not sure that's the case. It may be that it's part of a strategy on the part of the ministry. I simply don't know. I'm not an insider in the ministry and I'm not privy to such matters.
It may be that it's simply a strategy on the part of the ministry more effectively to negotiate federal funding for refugee and immigration matters. That may be so; I hope that is the case. But to me, it would be a very wrong step in the wrong direction if services in this area were curtailed or eliminated completely.
Only very briefly, Canada has international obligations relating to refugee and immigration matters. We have an obligation to treat people fairly when they enter our country. Canadians probably take that seriously, as a moral obligation at the very least. If we create a system for dealing with refugee claimants that is a complicated legal system, I think we have a moral and arguably an international legal obligation to make appropriate service available to those people. It's easy to forget, and important to remember, that in refugee cases if we make a mistake we may be sending people back to their death in the country of origin. Canadians do not want to have that kind of blood on their hands. I urge you to send a signal to the minister that refugee and immigration law, hopefully, is not being eliminated or reduced in section 13.
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A second problem with section 13 is, I think, a drafting error in subsection (3); that's my assumption, at least. In subsection (3), clause (e), the power is created to prescribe certain types of civil cases, and this appears to apply to the entire section. I assume it's meant only to apply to subsection 2, the discretionary areas of service and not subsection 13(1), the mandatory areas of service. I encourage you to suggest that that drafting error, I assume, be attended to.
Finally, and this will be my last point, I understand that it's necessary to have a transitional arrangement, and the transitional arrangements on their face seem very sensible: the creation of a transitional board to take over the operation of the plan until the corporation specified in the statute can be set up. But I'm not entirely confident the arrangements are optimal with respect to the transitional board. The transitional board has, as it must have, quite a bit of power and authority to set priorities to determine policies to run the system.
My concern is that this might go on for quite some period of time and we will lose the advantage of having the new board with its broader range of expertise, etc., arriving at the legal aid corporation and finding essentially a fait accompli with the system up and running, the new experiments conducted and so on and so forth. That may be an unnecessary worry on my part; I hope so. But I'd be inclined to be careful about this and to stipulate either a fixed period of time during which the transitional board could serve, such as six months or whatever. Or, if the prospect is that it may serve for a longer period of time, take the approach of the statute itself and say the transitional board must include some of the various kinds of people identified in the statutory instruction to the Attorney General: some people with business expertise, some people with expertise in the affairs of low-income people and so on and so forth. I think either of those solutions would be satisfactory. Both might be even better.
Apart from that, I must say, I was very pleased when I read this bill and, as I've said on behalf of the Legal Aid Review, very gratified by its contents.
I'd be happy to discuss any issue.
The Chair: Thank you very much. That leaves us three minutes per caucus. We begin with the government members.
Mr Gerry Martiniuk (Cambridge): Thank you very much, Mr McCamus. As you can see and as you've noted, the Attorney General has followed most of your recommendations. Therefore, in a sense you're the father of this bill before us.
I am interested in the consultation process by which you arrived at your recommendations, in particular the consultation process with non-lawyers. Could you expand on that?
Mr McCamus: We did a variety of things to try to ensure that we did as full a consultation as we could. First of all, particularly in terms non-lawyers, we had some non-lawyers on our panel. We had a distinguished accountant, a distinguished social worker, who were among the small number of people who sat on the Legal Aid Review itself.
Our first act, really, was to create a discussion paper which set out the problems as best we could identify them at that early stage in the work. We sent that discussion paper, together with a request for written feedback, across the province. We blanketed the province with them to legal organizations, to lawyers, to agencies of every kind we could think of that had some contact with people who might need legal aid services. We sent to lists that we got from ministries and from legal groups. We sent an awful lot of those documents out.
We did get a very large number of briefs from lawyers, to be sure, and from lawyers' organizations. We had many briefs from area directors of the legal aid plan. We had briefs from native groups, from groups of every imaginable kind. So we had a lot of written input of that kind.
As well, we conducted a series of public hearings. We didn't have a budget that would enable us to conduct a lengthy progress around the province, but we were able to make, I think, five visits and we had public hearings. On those occasions we visited the courthouses to watch what was going on. We met with lawyers and legal groups, but we also met with citizens in the local community, client groups, social service agencies providing services to people who use legal aid services and so on.
We were very aware of the need to talk not just to lawyers but to others who had a direct interest in the legal aid system, and we got a lot of very helpful input of that kind.
Mr Martiniuk: On behalf of the Honourable Charles Harnick, thank you, and I'm sure you're pleased that your report is not going to end up in some dusty corner, that it's hopefully going to be implemented when it goes before the Legislature.
Mr McCamus: Thank you.
The Chair: We move to the official opposition.
Mr David Ramsay (Timiskaming): Mr McCamus, thank you very much for your presentation.
I was very interested in your remarks in regard to refugee claimants. I just want to get a clarification from you. I think you began your remarks about a legal responsibility that Canada has to refugee claimants, and then went on to speak about, of course, the moral responsibility we have. Is there a responsibility that we have in international law to help refugee claimants in having their status decided?
Mr McCamus: I'm not an expert in international law, generally, nor the international treaties relating to refugees in particular. I'm not aware of any documented analysis of the argument that our treaty obligations extend to the provision of legal aid services. It wouldn't surprise me greatly if such an argument could be constructed, but I'm not aware of a law review article or a legal decision in which such an argument is explored at length. I think the moral obligation is really the one that bites in terms of public feeling about this issue.
Mr Ramsay: I agree with you on that. Do you think this bill somewhat backs away from our moral obligation to refugee claimants?
Mr McCamus: I'm concerned that refugee and immigration law is not in the bill, to be quite frank. Again, my hopeful interpretation of this is that it's an area in which there has been some tension, I think, between the federal government and provincial governments across the country as to what the obligations of the federal government should be.
The federal government having constructed the legal system through which these claims are handled, the provinces have understandably taken the view the that the federal government ought to pay for it. The federal government, on the other hand, although it has provided some funding, has also taken the view that administration of justice is a provincial matter and so on. So it is famously, within these circles, a contentious matter, and it may well be that it's not in the bill because the government wants to stay its hand a bit on this until they have what they see as the optimal arrangements. I hope that's the case. I'm assuming it for the moment.
Mr Ramsay: Thank you.
The Chair: We'll move to the third party.
Mr Kormos: Sticking with the area of refugee law, we've had all sorts of positions expressed with respect to it. One expressed this morning is that refugee law is a federal obligation. I know it is legislation that's written federally, and the assumption I'm drawing from saying it's a federal obligation is because this presenter suggested that if the province were to fund legal aid assistance for refugee claimants' advocacy, it would only be the fulfilment of a moral obligation of the province.
Then we've got the counter-argument that says: "The Criminal Code is federal legislation. The controlled substances act and the Young Offenders Act, the Divorce Act and any number of things that people -- many of them are dealt with in federally constructed courts by virtue of federal appointment." Really, I'm just trying to get a handle: Is refugee law distinguishable from other areas of law such that the province can say -- and I appreciate the province should be going to the federal government looking for assistance. I appreciate that. But is it distinguishable in such a way that the province could say: "No, it's not our responsibility. Refugee law legal aid is the federal government's responsibility"? Is that a fair conclusion?
Mr McCamus: I don't think there's a sound legal argument for saying this is a different animal simply because it's a recent construct of the federal government. As you pointed out, many things that are handled through the responsibilities of the provinces for the administration of justice rest on federal law, the Criminal Code outstandingly among them. But at the time the new, rather complex structure was established, the federal government apparently felt that it had some responsibility to provide funding and it did do so.
There has, as you know, over much of the history of the legal aid system, been a substantial federal contribution to the funding of the scheme. Again, in part in response to the ambiguity of these sorts of points, it's federal law but it's local administration etc. I don't think there is a convincing argument for saying this is a wholly different animal.
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Mr Kormos: One more thing. I don't know if you've focused on section 22, the appointment of area directors.
Mr McCamus: I did not focus my attention on that.
Mr Kormos: It was drawn to our attention, and others have noticed it by reading the bill. It speaks of an area director necessarily being a member of the law society, presumably a lawyer, an acting lawyer rather than a student lawyer, a student member or an honorary member. It goes on to say, "An area director shall not render legal services...." Not "legal aid services" but "legal services." I just wonder if it's perhaps unfair, in view of the fact that you haven't focused on that in your review of the legislation, to expect a legal aid director not to render legal services, not just legal aid services but any legal services. Similarly, is it critical that legal aid directors be lawyers?
Mr McCamus: I haven't thought about this previously, but I'm happy to give you my reaction off the top of my head, as it were. It rather depends on how the plan is going to be organized. If we're retaining the same number of area offices, many of them in small communities where you have part-time directors, it doesn't seem realistic to say that they wouldn't be able to practice law at the same time. They do at the present time. It's likely to be a practical thing to allow that in the future. If, on the other hand, the idea is to collapse the number of area offices and have full-time legal aid directors, that's a very different set of facts. The section does, of course, confer some discretion on the board to authorize practice, and perhaps that renders the problem a bit innocuous. Presumably, reason will prevail in matters of this kind.
As to whether the area director must be a lawyer, there are some obvious advantages to having lawyers, especially in smaller communities. I think one of the problems for the legal aid plan is to secure the cooperation of the local bar and to get people to take cases that are not very well remunerated, that may involve some travel, if we're talking about the north, and so on and so forth. As we travelled around the north, and we had only a couple of stops, we found that that was a serious problem. An area director said to us, "It's very important that I'm a member of the bar because I can go to Peter Kormos and say, 'We really need your help on this,' and they're more likely to respond to a fellow practitioner."
Do you really need legal expertise? I think there's an argument for saying you could well have someone with some other kind of expertise -- management expertise, for example -- in a large area. There's a very successful area director in the plan, whose name I won't mention. She is a lawyer, but even more importantly, she has a PhD in business administration and she's an expert in change management. When you talk to her about what is a rather large area, she talks about management issues, not legal issues.
The Chair: Thank you very much for your presentation today. We very much appreciate your coming forward.
We have another representative from Osgoode Hall Law School. If you could come forward and identify yourself for Hansard, we would appreciate it. You may begin.
Mr Fred Zemans: My name is Fred Zemans. I'm a member of the faculty at Osgoode Hall Law School and, along with my colleague Patrick Monahan, received a grant from the Donner Canadian Foundation several years ago to do a study of the crisis of legal aid in Ontario. Our study was completed shortly before that of my colleague John McCamus, from whom you just heard. I do hope that your research officer has obtained our two-volume study. The second volume includes contributions from scholars from various parts of the world.
I have a number of comments to make. Like John McCamus, I feel that this is a very important step forward for the province of Ontario. It brings into legislation recommendations going back over 20 years ago to a commission chaired by Mr Justice Osler, who recommended the fundamental basis of removing the administration of the plan from the law society and setting up an independent legal corporation. This was also recommended in our study. We are very happy that so many of the recommendations that were in both the McCamus study and the Zemans and Monahan study have found their way into the legislation.
We are particularly happy that the new legislation will see a much more diverse group of Ontarians involved in the administration of the plan. We particularly see legal aid as a plan that provides a unique service to low-income Ontarians. We are happy that in the criteria for appointment there is an indication that we will look to recipients of legal aid and those knowledgeable about the problems of the poor for appointment to the board. We would like to see the appointment process clarified slightly to indicate specifically that the individuals who were clients or are representatives of low-income citizens be given positions on the board. In fact, in our study we recommended that two individuals from low-income communities sit on the board.
Also, in our study we recommended a slightly lower number of lawyers on the board. We think that lawyers are important and bring an important perspective to the board, but it seems to me that one of the reasons we are making this change is in recognition of the fact that lawyers are the providers of the service, that they are serving a community of citizens who need to receive innovative and well-managed services. Innovation and management are not the exclusive domain of the legal profession, and that is why it is so important that appropriate appointments be made to the board.
As with the presentation of my colleague, I have concerns with respect to the transitional board: the vagueness of its appointment and the length of its appointment. I urge the committee to put a clear delineation on the length of time that the board will sit. I think it is vague, at the very best, in the current legislation. Secondly, there is no provision as to the composition of the transitional board.
My own background is as the founding director of Parkdale Community Legal Services, so I come with a very strong commitment to the mixed delivery system which has developed in Ontario over the last 25 years, a subject that I have written about extensively internationally. And I want to let the committee know, if they're not already aware of it, that Ontario is looked to as one of the outstanding providers of legal aid services throughout the world.
Our report recommended an integration of the clinic system into the mainstream of the legal aid plan, with appropriate protections for the clinic system, and I believe the legislation effectively does that. But I am very concerned that an area of provision of legal services which actually originated in the clinic system, that is, provision of legal services to immigrants and refugees, is so conspicuously absent in the new legislation. It is not articulated as one of the areas for provision of legal services. In fact, there is a clause which indicates that this area will be reviewed in two years. I have the number of the section --
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Mr Kormos: Sixty-five.
Mr Zemans: Sixty-five, exactly.
With respect to Mr Kormos's previous question, Canada is a signatory of the Geneva Protocol -- legislation that was introduced after the Second World War in response to the Holocaust -- which holds us legally responsible to accept refugees, as a society which holds itself out as a leader in the international community and a leader that is committed to due process, and that seems to me the fundamental issue here. The Ontario Legal Aid Act was introduced in 1967 because we believed that no individual who was facing significant legal proceedings should be unrepresented. Just as it was indicated in criminal justice that we would not see any person who is facing incarceration unrepresented, similarly it is totally inappropriate for legislation to be introduced where refugees may face deportation and return to countries where they potentially face death without appropriate legal representation.
I mentioned earlier that the clinic system has been involved in representation of immigrants going back to 1973-74. Immigration and refugee law has been an area of concentration for Parkdale Community Legal Services. As you know, Parkdale has served for over 25 years as a teaching setting for students of Osgoode Hall Law School and also, in more recent years, students of the University of Toronto Law School. We have over 1,000 graduates of that program who are practising law throughout this province and throughout Canada. That clinic has recently been recognized by the Law Society of Upper Canada for its contribution to social justice in Ontario. I mention Parkdale because of the fact that throughout its history, it has had a full-time staff lawyer and a complement of six students and a paralegal who worked in the area of immigration and refugee law. I do think this is conspicuous by its absence in the current legislation.
In conclusion, I want to say how happy I am that this legislation is coming forward. I think the test of the legislation is going to be the quality of appointments made to the board of directors, the composition of that board, their backgrounds and their commitment to the problems of low-income people. I reiterate the point I made before, that we have come a long way in our attitude towards professional groups, whether they be lawyers, doctors or other professionals, and we believe very strongly that they are stakeholders in the delivery of services to the community. And it is imperative that the recipients of those services play a significant role in the determination of the type of services, how they are provided and in what circumstances.
One of the major issues we underlined in our study and which is carried forward in the legislation, is to ensure that we have diversity of services. The private bar is an important contributor, salaried lawyers are possibilities in many areas, the clinics are important, and we hope that in Ontario we would begin to experiment with franchising which, although not mentioned in the legislation, would seem to be a strong possibility within the provisions of the new act. Thank you.
The Chair: Thank you very much. That allows us three minutes per caucus. We begin with the official opposition.
Ms Castrilli: Thank you very much, Professor Zemans, for being here. In fact, what you've had to say about refugees is more than borne out. Some of our research that has been presented here indicates clearly that a condition relating to the status of refugees imposes a general obligation on Canada to provide at least the same level of service for refugees as for other citizens in Canada. Of course you're familiar with the Singh case and what it says about the type of services that might be provided. While not an absolute right, they're still there as guideposts.
You've posed so many issues here today, but I'd like to ask you in particular about the transitional stage. I know you've been very outspoken on that issue, and we've heard from others as well that there's a real danger that what the transition team will do will set the course for legal aid in Ontario, and yet very little is said about the appointment process and who these individuals might be. I wonder if you might elaborate a little on that.
Mr Zemans: It seems to me that the reason the legislation includes a transitional board is in recognition of the fact that we have a plan that has been ongoing for some 30 years and there has to be some way of switching gears. But that seems to be all we would hope they would do; that is, be there for a very short period of time and then allow the leadership, the development of the new process, to be in the new board.
One is concerned in reading the legislation -- for example, when you see section 10, which sets out the power of the transitional board and their ability to assign priorities and establish policy -- that they're going to be doing the work one would hope the new board, the staff, is going to set into place, and which appropriate research and evaluation procedures would be set in place so we can monitor these processes. One of the great concerns about the existing plan has been the limitations on trying to evaluate the process on an ongoing basis. One would hope that would be one of the types of enterprises that the new board take on.
My own feeling is that we would hope they do a quick and relatively straightforward job rather than come in and create a framework which the new board is going to in effect have to unravel or, more likely, live with over a lengthy period of time.
The Chair: Thank you very much.
Ms Castrilli: I'd love to ask you about criteria.
The Chair: We'll move to the third party.
Mr Kormos: I refer you to section 16, and I'm talking about eligibility for legal aid services and in particular the consideration in this bill of the requirement of an application fee, clause 16(1)(d), "if...he or she pays the application fee." It doesn't indicate that there will be one, but it certainly contemplates one. Do you want to comment on that? You didn't address that in your initial comments, and once again --
Mr Zemans: I have no hesitation in commenting on it. I think an application fee for individuals who are applying for legal aid is reprehensible, and I don't think it should be contemplated in the legislation. We saw an application fee under the memorandum of understanding period that we have just come out of, which was finally removed. We saw a significant drop in the number of application fees and we saw, particularly being affected by the period of legal aid administration that was just completed, a significant drop in the availability of legal services for low-income women.
I think we have to recognize that it was low-income women who were penalized by the cutback in funding and by the administration of the memorandum of understanding. One aspect of that was application fees; the other was clearly that the tap was significantly turned down. I feel very strongly that we should not have an application fee, and if I were drafting the legislation, I would certainly not want to give the corporation the authority to introduce one.
Mr Kormos: Thank you, sir.
You talk about franchising. Was this the prospect of having counsel bid en bloc? If it is, we've had some comment on that in anticipation of it creating an HMO-type of situation where if a lawyer or a law office bids on X number of cases, then the handling of those cases is going to depend on where their bid fell -- in the high range, the low range, the mid-range -- the HMO syndrome. If that's what you meant, would you respond to that?
Mr Zemans: Franchising is a process of delivering legal services that has been initiated in the United Kingdom since legal services were taken away from the law society there in the late 1980s. Basically it recognizes that in legal aid we have to be looking at creative models for delivering legal services, not just the current case-by-case approach to legal services.
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Some call franchising a Marks and Spencer model of delivering legal services. By that, you set in certain kinds of quality controls and you monitor the quality of legal services. Say in St Catharines you decide that you have a certain number of legal services you're going to provide in the civil area or the criminal area. You're going to put out a bid for those services and, yes, a law firm or group of lawyers will come together to put in a bid for it, just as people put in bids to provide other public services. It means, number one, that you're potentially going to get some savings in public resources, in terms of the provision, and that you have some monitoring of the quality of services delivered. One of the problems with legal aid in Ontario has been that we have never had any kind of evaluation of the quality of services delivered.
The Chair: We'll move to the government members.
Mr Bob Wood (London South): You made reference to integration of the clinics into the mainstream of legal aid. You said that you thought this bill largely accomplishes that. I wonder if you could tell us how you think it accomplishes it and whether you think more needs to be done.
Mr Zemans: The previous legislation had, to some extent, two solitudes. We had the mainstream of the plan, which was the certificate plan run by area directors under the management of the law society, and we had the clinic funding committee, which was established in the late 1970s after Mr Justice Grange's report, basically to provide funding for the clinics, and they were funded separately by the Legislature specifically for the clinic system.
We now have a system whereby the clinic system comes under the management of the new board of directors, with a clinic committee responsible to the board of governors for its management and with some protection with respect to its funding. None the less, the clinics are protected because we have continued with the model of community involvement and participation by having community boards of directors.
My sense is that the legislation goes a long way to integrating the clinics into the overall scheme. Our report suggested another step and that was some type of regional committee whereby there would be, in various parts of Ontario parallel to the court system, committees which would look at the unique needs of northern Ontario, eastern Ontario, Toronto and other areas, whereby there would be some attempt to develop legal services programs specific to those particular areas.
Mr Bob Wood: I'd like to touch on a different issue very briefly. We've heard some discussion at these hearings of case management under the certificate system. I wonder if you thought that was important, and if you do, could you give us a brief outline of how you'd recommend the new corporation go about case management?
Mr Zemans: It's really not an issue I've thought about specifically. I think it goes to the point I was making before, and that is that hopefully the new corporation will look generally at the most effective way to deliver services and attempt to monitor to make sure we are providing the most effective and cost-efficient legal services we possibly can to the public.
The Chair: Thank you very much for coming forward with your presentation today.
SHEILA MCKENNA
The Chair: We call our next presenter, Ms McKenna. Could you come forward and correctly state your name for Hansard. Thank you for coming, and you may begin.
Ms Sheila McKenna: Thank you very much for the opportunity to speak to you. When I came here today, I didn't expect to speak to you. I came perhaps as some other people in Ontario do. They are representing themselves in the legal system and haven't been able to obtain the legal representation they need. So I came to this event, as I go to different things, in order to try to inform myself, to try to understand the situation in which I find myself. When I heard the presentations this morning, it seemed to me that you were interested in hearing the experiences of individuals who are in need of legal aid and that perhaps it would be useful for me to speak to you.
I have to tell you a little about my legal situation in order for you to understand what I want to highlight. I'm in, I believe, a very unusual situation. I'm trying to get divorced from my husband. It's a very protracted divorce. During the many years we've been separated, he has become ill and has come under the guardianship of the Ontario public guardian and trustee. I feel as if I'm trying to get divorced from the Attorney General's department. It's not a situation anyone wants to find themselves in.
People often don't take me for a poor person. I am a genuine poor person. I'm a member of a single-parent family comprised of myself and my daughter, who was sitting here earlier. We live on about $10,000 a year, none of which comes from public sources. My daughter, of whom I'm extremely proud, is attending a private school. She took her pick from two full scholarships at high school this year, each of them worth more than the total we live on. Again, a fairly unusual situation. She turns all the statistics for children of divorce and separated families upside down.
Since we're such quiet-living, church-going pillars of the community, you might think we would have an easy path through the system. I'm very sorry to tell you that we are having anything but. I don't want to embarrass the colleagues of the Attorney General by telling you too much about my views of how his department is conducting itself. What I have on paper speaks for itself. I get written, printed-up papers calling me to court under threat of losing my home and they don't turn up. They call me down there and they don't turn up.
It's been going on for years. It's having a terrible effect on my health. My doctor considers me to be disabled. A day like this when I'm out and about and active and maybe seem like the rest of you, comes about as a result of days of rest and days of physical pain, which I'm now experiencing, and of course days of preparation as an ordinary person trying to understand the situation I'm in.
I've lost track a little bit. I want to make sure I mention to you a few things I think are very important to what you're looking at.
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My name is on the deed to my home, and so when I applied for legal aid -- and I did have legal aid for a time -- I had to sign a lien against my home. I'm in the position where either I let the other side take my property away from me unjustly in the court or my property is taken from me to pay the legal fees. It's completely a Catch-22 situation. That being the case, the only thing I can do is attempt to represent myself. Because if I apply for legal aid again, I'll have to sign a lien. That way, I'm losing my property anyway. It's worth very little, it's falling down. I haven't heard anyone else use this term, but my daughter and I consider ourselves, me especially and her, thank God, less so, to be victims of legal abuse. We are victims of the legal system being used as an instrument of abuse and we have many of the characteristics of people who are abused.
I'm very discomfited -- of course I'm not familiar with the legislation that's been in existence, I'm not familiar with the proposal -- but I heard this morning that there's a possibility that the Attorney General may appoint the board of legal aid. What does that do to somebody like me? The other side of my divorce is represented by a branch of the Attorney General's department. Then, if I were to apply for legal aid, it would be accountable to the Attorney General.
Where do I ever reach some accountability that does not depend upon the Attorney General? In case you're thinking that seeking accountability from the Attorney General is something that goes smoothly and well, let me tell you, when I have been able to write letters to try and explain what's going wrong here and to try and reach a listening ear, the replies I receive do not match up in any sense to the points that I've put forward. You would think they were addressing another person in another situation. In my experience, trying to get accountability from one office is a very, very risky situation to put people in.
I don't know to what extent you've looked at providing legal aid for children. As well as everything else -- and I'm very proud that my daughter is doing well -- I seem to have stumbled into being shock absorbers for her so that, although she's in the middle of all this, it's not impacting on her so badly that it's affecting her performance. She's doing real well. But she has needs and interests in this situation which, as you can appreciate, I'm completely unable to look after, try as I may. I believe that the Ontario public guardian and trustee, from what I gather, is obliged to consult next of kin on legal issues, on relocation on various matters. Even though the PG&T would make the decision, I believe they consult the people around the person.
In our situation they're treating his closest relative as an enemy and an adversary and trying to pull the home out from under her on the basis of incorrect figures. In 18 months' time when she turns 18, she will legally be her father's next of kin. She needs, we need, expert legal representation, and as far as I'm aware, as things stand, if I apply again for legal aid, another lien will be put against my home, and the money that they're trying to take away from me unjustly in the court will be taken away from me by legal aid.
By the way, I think it's a great idea putting liens on people's homes in order to give them legal aid. It enables people who have an asset but who need to have legal work done in the short term to have a means of doing so. But there comes a point at which, if you are poor, that is no longer appropriate. For people in circumstances like ours, where the property is no longer worth very much, it's falling down, it's crumbling, and where our income is so low, it's just counterproductive. It means there isn't any justice for us.
I hope this helps you in your deliberations about legal aid.
The Chair: Thank you very much. That allows us two and a half minutes per caucus, and we begin with the third party.
Mr Kormos: That's not very much time, Chair.
The Chair: That is not a choice of mine.
Mr Kormos: Lord knows, you want to have dialogue here but two and a half minutes is nowhere near enough to do it.
Is this a divorce or is this a division of property?
Ms McKenna: Both.
Mr Kormos: OK. Your partner, your spouse, his legal interests are being represented by the public guardian because there's no individual who's prepared to take on or in a position to take on that position, to act as his guardian as appointed by the court --
Interjection.
Mr Kormos: Ad litem. Am I correct there? There's no other close family member that's --
Interjection.
Mr Kormos: Ah, yes, appointment as committee. That's right, guardian ad litem is with children in lawsuits. I'm just testing the legal knowledge of a couple of civil experts here. So there's nobody who has been in a position to be appointed as committee, as Mr Wood accurately points out?
Ms McKenna: When he was first taken ill, I was thought to be his closest relative.
Mr Kormos: But you're into this matrimonial dispute with him now?
Ms McKenna: We had separated for nine years so they thought that was a de facto divorce.
Mr Kormos: And you don't have any lawyer now?
Ms McKenna: I don't have a lawyer, no.
Mr Kormos: And your husband has a lawyer because that lawyer has been retained by the public guardian.
Ms McKenna: My husband seems to have plenty of lawyers as far as I can tell. I've received letters from all kinds of directions. Yes, he most certainly has a lawyer.
Mr Kormos: I trust Mr Wood may ask you questions or he may help flesh this out for me. I trust that means that the public guardian has to be less conciliatory than a lawyer might be were a person not in a position of being advocated for on behalf of the public guardian. The public guardian isn't in a position to sit down and say, "Look, this may be the law but this is the best thing for everybody concerned," and give you exclusive possession etc.
Ms McKenna: They haven't been at all conciliatory. I don't know how to characterize it. I feel as if I'm in the hands of --
Mr Kormos: You've got the two remaining members of the Ontario Crime Control Commission here. Here's your chance to get them to intervene.
Ms McKenna: I have called the police to ask if this could be considered fraud.
Mr Kormos: Police are not going to get involved in it. You know that. These are the people right here. Thank you kindly for coming by.
The Chair: Now we'll move to the government members.
Mr Bob Wood: I want to assure you, by the way, I practised law for 26 years and these are among the most difficult people to deal with. You're not the only person in the province that's had that experience. However, what I wanted to ask you were a couple of points. Number one is, when legal aid was involved in it, was there ever any attempt at mediation of this situation?
Ms McKenna: I think so, yes. I don't know how you mediate with people who aren't in any way truthful.
Mr Bob Wood: What I'm asking is this: Was there ever an attempt to sit down with you, whoever was representing you at the time and whoever was representing the --
Ms McKenna: Yes.
Mr Bob Wood: And did any result flow from that?
Ms McKenna: No, they've never looked at the full story and they've never formed a truthful idea of what has taken place.
Mr Bob Wood: Were you given an opportunity to present your point of view at this session?
Ms McKenna: Not very much came out. No, I don't feel that very much of what was needed to be taken into consideration came out.
Mr Bob Wood: Do you feel you were given an opportunity to present your side of the situation?
Ms McKenna: Not adequately, no.
Mr Bob Wood: Did you make any attempt to tell them that, or did that not really happen?
Ms McKenna: Yes, I think those who had been involved with it would say that I've been explaining that I haven't felt heard.
Mr Bob Wood: Maybe you have misunderstood. Did you have a third party sit down with lawyers for the official guardian and you to say, "Is there a way we can settle this matter?" Did you ever have a session like that where --
Ms McKenna: I've made an offer to settle.
Mr Bob Wood: Before you answer that, though, what I'm trying to find out, did you ever have a third party sit down with you and the lawyers for husband's estate and say, "Is there a way we can settle it?"
Ms McKenna: I think so, yes.
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Mr Bob Wood: And you didn't feel you got a chance to explain your point of view when that happened?
Ms McKenna: You see, any time this has been considered it has been viewed on a false basis. The assumption seems to be that because they're a professional office, the way they present the issue is probably more or less reliable. My experience is that it isn't at all reliable. When attempts have been made to -- I wouldn't say that very sincere or very wholehearted attempts have been made to resolve it. I made an offer that would have lost me what I cannot afford to lose, but I made an offer to try and bring this nightmare to an end. I didn't even receive a reply.
The Chair: We now move to the official opposition.
Mr Ramsay: Thank you, Ms McKenna, for bringing your case forward today and making this presentation. I know it must have been difficult for you. I really do appreciate it because most of the people who come before us are giving us the theoretical view of the bill and how, in theoretical terms, it can be improved, as all of us around this table want to do, but you bring to this committee a real situation, how a citizen has been dealing in the past with legal aid. I think, for all of us, it's very helpful to have anecdotal evidence as to how legal aid does work. I think it gives us a better idea how we can improve this bill to make it serve you better, so thank you very much.
The Chair: Thank you very much for coming forward today. We very much appreciate your taking the time.
LAWRENCE HEIGHTS COMMUNITY HEALTH CENTRE
The Chair: I think we can now move to the 3:20 appointment. If the representative of the Lawrence Heights Community Health Centre could come forward and identify yourself for Hansard, we would appreciate it. Thank you for coming. You may begin.
Ms Sherry Phillips: My name is Sherry Phillips. I am currently the director of community health promotion programs at the Lawrence Heights Community Health Centre. For those of you who don't know where that is, it's in Toronto at the Lawrence Avenue-Allen Expressway intersection, in and around that area.
I also was a member of the review panel for the Ontario legal aid plan with Professor McCamus. Basically, I'm here to present some very brief statements on Bill 68, certainly in support of the bill as it represents many of the recommendations that we came up with during the review.
One of the key highlights for me in the bill and in the recommendations that we compiled was a recommendation to create an independent body to administer legal aid and the fact that under the bill such a body is going to be created. I think that's a very good thing. The composition of the board remains to be seen. Having heard now that there are both pros and cons to the Attorney General appointing members of that board, whether they're lawyers or not, I think what's really important is the commitment of the individuals to the process and to ensuring that legal aid continues to be accessible to the people who really need it.
Second, in terms of why I want to support the bill and the passing of the bill is the fact that it also continues to provide strength and support to legal clinics, which I think are a really key piece in ensuring that people who need access to the justice system get it. As we heard when we were doing the review, that doesn't always happen when people are issued certificates, but certainly in my working experiences in community health centres as well as hearing from many of my colleagues at other centres and other community-based agencies, the work of community legal clinics is very important, so it's great that that is going to continue. From what I have heard from my colleagues in legal clinics, they are also quite pleased with the bill. I think you've already heard from the association of legal clinics.
The issue of how the bill treats immigrants and refugees is problematic, notwithstanding provision 65 and the fact that there is still a commitment for two years. I think, as Professor McCamus and Professor Zemans already stated, the reality of our commitment as a country to the needs of new immigrants and refugees is prevalent, it's timely and it's growing. That is the harsh reality. For us to think otherwise is unrealistic and it's unfair, I think, to the growth of our country, which is relatively small. I don't really need to sit here and try to convince you of that. I'm sure that you all are quite aware of what is going on with the many difficulties facing newcomers in Canada today, and particularly in Ontario, specifically in Toronto.
If I can plead for anything this afternoon, I think it would be that this bill be amended to include much stronger provisions for access to legal aid for immigrants and refugees. What we heard as well from the previous presenter is equally important. What I was hearing from that person -- and I'm sorry, I can't remember her name -- was a frustration around being forced to access the legal aid system and being frustrated for various reasons, but feeling also that she was powerless to do anything about it and also powerless to take it anywhere. That's certainly something that we heard when we were doing this review throughout Ontario, where many recipients of legal aid or many people who were eligible to receive legal aid did receive it and for various reasons had difficulties with the providers, particularly the lawyers, who had accepted the certificates.
We heard a number of different scenarios around problems. What we also heard, though, was that the recipients, the clients, often felt quite frustrated that if there were problems, if they felt that the work that was undertaken by their lawyers was inadequate or could have been done differently, there was really no place to take that. As a quick aside, we also heard from a number of other lawyers who commented on the same issue. There was certainly perceived to be a role for that by the law society, but speaking as a layperson, a non-lawyer, that doesn't seem to be happening much.
I know that during the review, our panel discussed that quite a number of times. There is no real provision in Bill 68 to address that issue, so that's certainly something I would want to see happening in any amendments to this bill before it's passed. I think it's really important. One of the key issues around legal aid is access, and providing access without ensuring the integrity of that access I think is a bit meaningless.
That's really all I wanted to say. Thank you.
The Chair: That allows us four minutes per caucus for questions and answers, and we begin with the government members.
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Mr Stewart: I've only been on the committee the last couple of days but I keep hearing about the situation of access to funding through refugee status and immigrant status. I'm going to play a wee bit of the devil's advocate on this now: We have X amount of dollars to go to legal aid and we have to control them because accountability and so on maybe do not seem to have run rampant in the past in this particular field. How do you decide whether the refugee should get the dollars for legal aid or the person who has lived in this country and paid taxes? Where do we draw the line with this thing? I mean no disrespect to either side. That's not what I'm talking about. How do we draw the line on this thing when we have only so many dollars to do it?
Some things concern me a wee bit. I know that there are refugees who come in who, if they go back, possibly will be killed or whatever, but there are other refugees who seem to be coming in and out all the time. We pay extremely big dollars because the first words they say are, "If you deport me back, I'm going to be killed." I guess we should think of these things at the start as well, that some of them have been going back and forth for a number of years. How do we solve that problem and differentiate between those who have paid the bills and those who haven't?
Ms Phillips: It's a very good point. I think that realistically the issue is quite systemic, that the bill and providing dollars to support refugees once they're in Canada aren't the answer either. But we have to pay attention to it wherever we can. Certainly, not paying attention to it in this area is critical. Definitely, the process that new immigrants and refugees face before they even come to this country, in relation to what they know about Canada and why they would even make a decision to come here, is another area that's also lacking. It needs far more scrutiny. People need to be far more informed, realistically informed.
The reality is, if we just take new immigrants -- I know a little bit about the immigration process -- our Immigration Act provides stipulations around who can enter the country and who can't. We also have a number of scenarios around which countries are more acceptable than others and so on and so forth. There is without a doubt a discretionary process that's in place.
The harsh side of it, though, is that there are many newcomers here who are quite skilled, who are quite capable but are unable to find meaningful employment, are unable to integrate as well as they should, as well as we expect them to. There are many people who don't want to be on the welfare system, who don't want to be on the backs of the general public. That is a real misnomer. The percentage of people who are actually "taking advantage of the system" is realistically quite low in comparison. Of concern, however, are the people who for language reasons, for cultural reasons -- coming from cultures that are dramatically different -- get caught in a syndrome of wanting desperately to fit in, to integrate, to work, to be educated, to raise their children in a way that's meaningful for them and that has integrity, but find themselves in a system that is quite complicated.
Realistically our system, in comparison to many throughout the world, is quite complicated. It's not a straightforward system. The English and French-language systems are also quite complex. When you work with newcomers and with people whose first language is not English, if you're an English-as-a-first-language speaker you very quickly realize how difficult what we take for granted, speaking English, is for many people.
The Chair: We now move to the official opposition.
Ms Castrilli: Thank you for your patience, because my patience was tried, with all due respect to the members opposite. There is a clear obligation under international law, under our own domestic law. We cannot treat refugees -- people in need, people who've escaped horrendous situations -- any differently from the way we treat our own citizens. That's obviously clear.
Mr Stewart: Talk to your buddies in Ottawa.
Ms Castrilli: This is a point we've been coming back to day after day after day, many individuals have spoken about the injustice of it, but even if there weren't laws and conventions that clearly require us to deal in the best possible fashion with individuals who are disadvantaged in that way, we heard Professor McCamus himself, the author of the report that this legislation is ostensibly modelled upon, say that there's a moral obligation. Forget the legal obligation; there's a moral obligation.
I don't think it's up to us to determine which individuals are more worthy than others to have access to the law. I really do appreciate your patience in all this, because it seems to me that one of the goals of this renewal of legal aid is to ensure equality of access, that we're not saying that some people ought to be able to have access to the very best lawyers and get to court in a timely fashion simply because their pocketbook is a lot fatter than other people's. That's why we have a legal aid system: to equalize the field in Canada.
I think what we have to do as legislators, and I think this was the point you were speaking to, is make sure that the playing field is fair, that we're not creating two classes of citizens when it comes to justice, because individuals in poverty sometimes have greater needs than people who have a nice fat bank account.
I appreciate your eloquence here today. It speaks volumes for where we must be going. You've said it all extremely well, and I thank you.
The Chair: We move to the third party.
Mr Kormos: Thank you, Ms Phillips. I'm old enough that I've heard that theme several times during the course of my lifetime. The theme today was: "Is it fair that foreigners, people who just arrived in this country" -- unspoken: "maybe illegally" and "maybe not the same colour as me" -- "should be able to access a taxpayer-supported legal aid system for refugee purposes at the risk of maybe displacing a true-blue, Canadian-born blueblood standing in the line?" You see, I've heard that before. I've heard it in other contexts: "The foreigners are taking your jobs."
I'm old enough to remember that. It goes back to the 1950s, when I was a kid, and some of the great waves of immigration were happening in this country from in that case southern Europe, and then in the later 1950s from eastern Europe, after the Hungarian revolution. We shouldn't forget the names that were given to those people because some of the same nomenclature is given to the new Canadians of 1998.
I know that the Reform Party has made some very specific statements, with a wink and a nod, about things like freezing immigration, and about these refugees and the mythology of -- do you understand? I'm not saying this to you. I'm obviously speaking to these members of the Legislature across.
Do you understand that -- I hope you do -- the people who come here as refugees have abandoned everything they've owned? They leave every single possession they've ever acquired. They leave their friends. They leave family. Sometimes they leave those families at great risk from the prevailing powers. To talk about the so-called mythology of the refugee who flies back and forth, back and forth -- they come here at great risk to themselves and at great risk to their futures. They destroy their past. They abandon their past.
If you've had the occasion to read any of the affidavits that are filed on behalf of refugee claimants or to speak to some of those claimants -- I don't care what part of the world they come from -- and to hear some of the atrocities they've been subjected to, and understand why they come to Canada at great risk, seeking some modest justice, I'm not sure you and the other Reform Party spokespeople in this province and in this country would have the same perspective.
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I just find it hard, Ms Phillips, to equate rights with, let's say, citizenship or rights with longevity. My parents were, as children, economic refugees from Europe. They weren't political refugees; they were economic refugees as children. It's incredible to think that how many generations you've had in this country should determine what rights you have or what services you can access. We either provide services for people who are in this country or we don't; and we either have human rights, which aren't dependent upon your citizenship or your nationality or ethnicity or your cultural background or your colour, or we don't have human rights. You either accept and endorse human rights or you abandon them. To try to pit one group of people -- it happened in Ottawa yesterday when one of your members -- you know who he was, the member from Ottawa-Rideau -- told a group of women in the audience, "What would you rather have: family law, a legal aid certificate, or certificates for these refugees?" trying to pit one group against another. That was a reprehensible effort to divide the community and it smacked of racism and it was accommodating and condescending to the people at whom it was directed.
Mr Stewart: He didn't say that at all. Look at Hansard and don't say that when he's not here to defend himself. He did not say it and you know that.
Mr Kormos: You either believe in human rights or you don't. I've got a feeling, based on what you had to say earlier today, that you don't believe in human rights.
Mr Stewart: Absolutely, I do.
Mr Kormos: What you've said is racist and it's condescending and it's unacceptable in this country.
The Chair: Order, please. Thank you, sir. Thank you, Mr Kormos.
Mr Stewart: You go and talk to your buddies in Ottawa.
Mr Kormos: I'm talking to you. You're the one making the racist comments here today. You're the one making the racist comments. Put on your white hood. Burn a cross.
The Chair: Order, please.
Thank you very much for coming forward today. We very much appreciate your taking the time.
Ms Phillips: Can I have one last word? In reality, we're all refugees.
Mr Stewart: Absolutely.
AFRICAN CANADIAN LEGAL CLINIC BLACK LAW STUDENTS' ASSOCIATION OF CANADA
The Chair: We're going to call forward the four o'clock presentation today. If the representatives of the African Canadian Legal Clinic could come forward and identify yourselves for Hansard, we would appreciate it. Thank you for coming. You may begin.
Ms Michelle Williams: Good afternoon. My name is Michelle Williams. I'm policy researcher and analyst with the African Canadian Legal Clinic. With me is Margaret Parsons, who's the executive director of the African Canadian Legal Clinic. Camille Lee, is the president of the Black Law Students' Association of Canada, was unable to attend today, so we'll also be speaking on behalf of that organization.
The African Canadian Legal Clinic is one of 72 legal aid clinics in Ontario and has a province-wide mandate. The ACLC was established to address discrimination in the justice system, education, employment, housing, health and other spheres of Canadian society. The ACLC participated in the legal aid review process and worked very hard to ensure that the concerns of racialized groups were brought to the attention of the legal aid review panel. We did extensive consultations in Hamilton, Ottawa, Toronto and Windsor. We also organized an open community meeting with John McCamus and other members of the review panel to provide accessibility to the review process itself.
A bit about the Black Law Students' Association of Canada: They are a national organization formed in 1991 to promote an accessible legal system and support the professional needs and goals of black law students. They have commissioned and completed a number of studies on access to justice, legal education and the legal profession.
Today we'd like to touch on three main points that form the basis of our recommendations to the committee. First is our general support of the Legal Aid Services Act and it's overall purpose to promote access to justice throughout Ontario for low-income individuals.
Second, we want to touch on the changing demographics of Ontario and the implications of those changes.
Finally, we want to touch on access to justice and the racialization of poverty.
As mentioned, we the ACLC and the Black Law Students' Association of Canada would like to express our general support for the Legal Aid Services Act and the comprehensive and open process that was used in the development of the act. We helped communities access and participate in the preparation of the McCamus report and we're pleased that much of the philosophy and recommendations of the report are reflected in the new act. In particular, we commend the recognition of the importance of clinic law as part of the foundation of the legal aid system, and the open and inclusive definition of clinic law. We also commend the recognition that clinic law needs to be community-based in order to be most effective, and the government's commitment to independent governance and ongoing funding of legal aid services.
The second point that we want to highlight for the committee today is the changing demographics of Ontario, or perhaps it's more accurate to say the changed demographics of Ontario. The latest national census indicates that 1.7 million individuals identify themselves as members of a visible minority in Ontario, which is 16% of the province's total population.
Indeed, Ontario has more than half of Canada's visible minority population. African Canadians are the third-largest visible minority population in Canada and comprised over one fifth of Ontarians who identified themselves as members of visible minorities in the 1996 national census. This large percentage of racialized groups in Ontario has implications for the provision of legal aid services. In understanding the needs of racialized groups, it's imperative that the government be attuned to what is known as the "racialization of poverty." In order to give real effect to the principle of promoting equal access to justice, we must examine the material condition and experience of racialized peoples and the degree to which racism contributes to hardship and poverty.
That racism continues is borne out by numerous reports which document discrimination in Canadian society and the Canadian legal system itself. A provincial report released in 1992 talked about the root of the problem being anti-black racism. The existence of anti-black racism has also been recognized by the Ontario Court of Appeal in the cases of Parks v Wilson, and most recently by the Supreme Court of Canada in the case of Williams, which was a groundbreaking legal analysis of the nature of racism and its insidious effects. We've seen a quite immediate demonstration of that in the report that was released by Judge Trafford yesterday, which was covered extensively in the news. It talked about what's happening to people in the criminal justice system and the degree to which racism is playing a role.
The Hon Roy McMurtry, Chief Justice of Ontario, was the keynote speaker at the first annual general meeting of the Association of Community Legal Clinics of Ontario earlier this year. During his speech he quoted the following observation:
"Poor people are not like rich people without money. Poor people are always bumping into sharp legal things.
"As we appreciate better now than we did perhaps then, the wounds from these sharp legal things are disproportionately felt. Given the systemic discrimination found in many of our institutions, these wounds are particularly suffered by racial and other minorities, women, aboriginal people, and those with literacy, learning and other disabilities.
"What distinguishes the clinics from other access-to-justice initiatives is their ability to respond in a community-specific way to these needs."
I'd like to turn it over now to Margaret Parsons.
Ms Margaret Parsons: Discrimination in the spheres of employment, education, housing and services imposes additional legal burdens that must be addressed by survivors of racism. It also creates economic barriers which make it difficult for people to afford private legal services. Consequently, the provision of legal aid services must reflect the particular needs that arise as a result of the racialization of poverty.
The ACLC's province-wide consultations on the issue of legal aid gave rise to important suggestions in various areas of law. In particular, members of the public wanted access to legal services in the areas of immigration and refugee law, wrongful dismissal and other civil litigation matters such as personal injury, more public legal education and the imposition of contingency fees. Each of these areas is discussed in more detail in our written submission. For the purposes of the current presentation, we would like to highlight concerns about immigration and refugee legal services.
More than four of every 10 immigrants who arrived in Canada in the past five years settled in the Toronto area. In fact, one tenth of the area's total population has arrived since 1991. The inaccessibility of our legal system is intensified in immigration and refugee matters as there are often language and cultural barriers that make it impossible for new Canadians to effectively interact with out legal system. The deficiency in translation and interpretation services, along with a lack of cultural sensitivity on the part of some lawyers and adjudicators, leads to many credible refugee claims being denied, with the consequent return of the refugee to a potentially life-threatening situation.
Cuts in services to immigrants have also imposed increased barriers. Further, the liberty interests at stake as a result of a detention or deportation order are as severe as those used to consider whether criminal certificates should be issued.
The McCamus report recognized the need for expanded immigration and refugee legal aid services, and the ACLC and the Black Law Students' Association of Canada recommend that a long-term commitment be made to expanded immigration and refugee legal services.
The reality of who Ontarians are and what their needs are obviously has implications for the provision of legal service in Ontario. It is imperative that proposed legal services be scrutinized to ensure that they promote access to justice and will meet the needs of the most vulnerable Ontarians, who include historically disadvantaged racialized groups such as the African Canadian community.
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This leads to the five main recommendations of the African Canadian Legal Clinic and the Black Law Students' Association of Canada. The ACLC and the Black Law Students' Association of Canada endorse the recommendations made to the committee by the Association of Community Legal Clinics of Ontario and want to highlight and elaborate upon those recommendations.
First, it is crucial that an independent, transparent and open selection process be adopted for the selection of the board of directors of the new legal aid corporation. Limits should be placed on the tenure and power of the transitional board, and an open process should be used for the selection of transitional board members as well.
Secondly, in order to ensure that the diverse needs of Ontarians are properly met, it is imperative that the board itself and board committees have a diverse membership. There must be people who understand and can articulate the particular barriers and challenges faced by members of Ontario's racialized communities. It is imperative that the board and committees respond to the racialization of poverty and the unique needs of racialized groups and immigrants.
Thirdly, a related recommendation is the need to maintain a community-based approach to determining the needs of low-income and disadvantaged Ontarians. Independent community boards are absolutely essential to a responsive and effective clinic system.
Fourth, the restriction on the provision of civil law services may prove to be a barrier to an open and flexible system. Therefore, the ACLC and the Black Law Students' Association of Canada support the recommendation that clause 13(3)(e) be removed from the act.
Finally, immigration and refugee law services should be included in the act and specific funding references removed. This is crucial to the overall functioning of this province, particularly in light of the changing demographics. Immigrants and refugees make up a considerable portion of the disadvantaged and low-income community in Ontario. Their needs and ability to access immigration legal services is critical to their quality of life and ability to fully participate in Canadian society.
Access to legal aid and proper legal representation are inextricably entwined with the issue of access to justice. Access to justice is crucial to a well-functioning society. It is important that the new corporation be adequately funded to allow it to meet its challenge of providing high-quality legal services and that the subject funds flow free from political interference or consideration.
Overall, the new act is commendable. It is now up to the government to ensure that the implementation of the act reflects the general purpose of the act, which is access to justice. We must also remember that an integral component of access to justice is equality and freedom from discrimination.
The Chair: That allows us two and a half minutes per caucus. We begin with the official opposition.
Ms Castrilli: Thanks very much. I think you packed a lot into your presentation today. One thing that struck me as you were talking, and you may recall this: An additional report that was issued after some years of study, which you didn't mention but that I think is very instructive for this committee, was the two-volume report which documented the systemic discrimination in the justice system, and is something that I hope everybody on this committee notes.
The McCamus report addressed some of your concerns. I just want to read some of that for you, because we were hoping that a lot of what you said would be in the bill. On page 65 of that report Professor McCamus says:
"While racial and ethnic minorities experience many of the same problems that other groups of low-income Ontarians face, the issue of race and ethnicity often exacerbates their difficulties. For example, issues of discrimination can factor prominently in the areas of housing and employment, or, indeed, the administration of justice itself."
One would have thought that some of that would be front and centre in this legislation. While I agree with you that this is a good start, it remains just a shell unless you actually say some things very forcefully and back them up with funding. That's really the issue here. You can have a lot of pretty words, but if you don't have the funding and if your ideological agenda is to get out of some areas of legal aid, then this kind of legislation might in fact lead us down that road.
We've heard many people talk about the importance of including immigration and refugee law, and there's been plenty of argument here as to why it's not only a requirement by law but also human rights, and it's a moral obligation of Canadians to do that. What we see here, however -- and I asked the law society this this morning. I said to them, "Why didn't you fight vigorously to have some of these areas included?" They said, "With a capped system, you have to make some choices," and, if I may paraphrase or edit what they said, the priority might be to get out of some of those areas.
I want to thank you for your presentation. I think you pointed out why it's absolutely critical that we don't get out of those areas, because it is an issue of equality and access and justice. We can't have a two-tier level of justice. Justice ought not to be determined by the colour of your skin, your gender or the size of your wallet.
The Chair: We move to the third party.
Mr Kormos: You, like so many others, have come here and said that generally the bill is a good thing -- setting up an arm's-length corporation etc. I've said that from day one as well. But if you feel strongly, as I do, about the omission of refugee and immigration law, among other things, and if you suspect, as I do, that it isn't just posturing so this government can negotiate with the feds over funding, that it's really about -- you know what I suspect. Look, let's face it. You know what's going on out there. You spoke to it today when you talked about the community, in the broadest sense.
There's been a whole lot of fear and anger whipped up over the phenomenon of people seeking refugee status. Listen to the radio talk shows. You hear them. You know it's out there. Look at the response from some elements in the community. We recently had some people seeking refugee status from the republic of Slovakia. These people were Romanies, known colloquially as gypsies. Again, look at the incredible antipathy, the hatred and the mythology that was built on once again.
If you suspect, as I do, that the omission of refugee law is, quite frankly, an exploitation for political gain of that sentiment that sadly is out there; if you're concerned, as I am, about the lack of guaranteed funding for the whole plan, then you'll understand why I may not vote for the legislation, why I will feel compelled to vote against it. How else do I express my disapproval of the omission of those very important things?
I know it's going to pass. There are enough Tories to make it pass. I know that. They'll do as they're told. They'll be whipped. They'll vote as they're told to vote. How else do I express my strong concern about the lack of guaranteed funding? That was already spoken to. At the end of the day, it's all about sufficient funds. And the government controls that, not the corporation. How else do I express my disapproval, other than saying no?
With the omission of consideration of refugee law, among other things, I'm going to vote against this, because I don't want to be responsible -- I don't want to crawl into bed with the government on the issue of, let's say, the omission of refugee law. Do you understand why I am probably going to vote against the bill?
The Chair: We now move to the government members.
Mr Dave Boushy (Sarnia): I agree with you that Ontario has an obligation to immigration and refugees, and I agree with the NDP representative. At least I know where they stand. However, the laws for immigration and refugees come under the federal law. Are you aware of that?
Interjections
The Chair: Order, please.
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Mr Boushy: Are you aware that the federal Liberals cut funding to legal aid by 75%? If you're aware of that, are you going to lobby the federal government for more funding or at least their portion that they cut off legal aid?
Ms Williams: Certainly, there are many areas of law that involve both federal and provincial jurisdiction. Criminal law is another area in some ways. Obviously, that's part of the federal system that we have. We also have people who have needs on the ground, here in Ontario, that involve immigration and refugee services under legal aid, which is provincial jurisdiction. We always work with any level of government that is willing to work with us to further the needs of the people we represent and who we work with in legal services.
The fact that immigration and refugee law falls in part under federal legislation is not a reason to essentially limit immigration and refugee services at a provincial level.
Mr Boushy: I didn't say that. I started right off the bat by saying we have an obligation as an Ontario government. But you also should know that the Liberal federal government has cut its portion of the funding to legal aid by 75%. Are you going to lobby the federal government?
Ms Williams: We're quite aware of the various cuts --
Mr Boushy: Yes or no?
Ms Williams: -- that happen.
Ms Parsons: Let's take what you're saying as accurate, that they've cut the funding. Legal services are still being provided in all the other areas that legal aid funding is provided to: in the area of criminal justice, in the area of housing and all those areas. So I don't see why immigration is targeted as the area that's going to feel the brunt of the cuts from the government.
The Chair: Thank you very much for coming forward today. We very much appreciate your presentation today.
Ms Castrilli: Point of order, Chair: I'd like it very clearly reported in the proceedings that legal aid is a provincial responsibility and not a federal responsibility.
The Chair: Mr Kormos.
Mr Kormos: If I may pose a question to the parliamentary assistant -- because I'm not beyond criticizing the federal government as well as this government simultaneously. In all seriousness, could we have some hard numbers on what was in effect the federal contribution to overall legal aid funding and, please, because we've got to get some specific data on when there were cuts in that by virtue of downloading by the federal government to the province, the same way the province has downloaded on to municipalities in Ontario, was it selective downloading or was it across-the-board downloading? Do you understand what I'm saying, Chair? As these participants just commented, it's important to know: Is the reduction in support by the federal government for legal aid across the board or is it reduced more significantly in areas of, let's say, refugee law than in other areas of law. Because we're having some real --
The Chair: I'm sorry, the time is over.
Mr Kormos: She could have my time, Chair.
The Chair: You've made a request to the parliamentary assistant to look into the breakdown of the transfer payments. I think it's very clear to the parliamentary assistant.
Ms Parsons: I'm not sure whether the question was, was 75% cut to immigration or to legal aid overall?
The Chair: Thank you.
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 525
The Chair: Would the representative of the Ontario Public Service Employees Union, local 525, come forward. If you could identify yourself for Hansard prior to starting, we would appreciate it. Thank you for coming. You may begin.
Mr Bart Poesiat: Thank you, Mr Chair. My name is Bart Poesiat, president of Ontario Public Service Employees Union, local 525. Local 525 represents community legal workers, researchers, educators and administrators in seven community legal clinics in the Toronto area, as well as workers in the Ontario legal aid plan office. Obviously, we've got years of experience as front-line workers dealing with poverty law issues.
You have our brief in front of you, I hope. I'll just point out some salient points so there will be more time for questions.
First of all, we'd like to point out that we like some of the provisions in the act. Obviously, we like the independent, or what we hope is going to be independent, Ontario Legal Aid Corp. We like the act's recognition of the importance of poverty law and legal aid in general. We like the emphasis that we see has been placed on the importance of clinic law and legal clinics. We also like the inclusion of mental health law in the areas covered by legal aid, which was not there before.
Having said that, we have some concerns, which undoubtedly you've heard over and over again but we still have to point them out. First, we have some concerns about the independence of the board of the Ontario Legal Aid Corp, specifically the selection process. We notice that the appointees are by the Attorney General, with only input from the law society. There's very little input from other organizations. We make a strong suggestion that in order to produce an independent board of directors, there is more input from community groups, poverty groups, unions and so on.
Our second concern is the transitional board. There are very few provisions on the limits of tenure and power of the board that is supposed to make the transition from the system we have now to the new system. Again, we don't read in the act presently about an open selection process for that transitional team. We would like to see some due process in that and some time limits and some limits on the tenure, because when a transition is made is a critical time.
Our third concern is the access to quality services. There is some contradiction in the way this is stated in the act. Section 1 of the act states that:
"The purpose...is to promote access to justice throughout Ontario for low-income individuals by means of,
"(a) providing consistently high quality legal aid services in a cost-effective and efficient manner...."
We agree with that. But then in subsections 4 (a) and (b), the order is reversed and the phrase and weighting to cost-effectiveness comes first.
We recommend that the object remain one of providing accessible and high-quality care and services, in the first place, and then in a cost-effective manner. We think that the emphasis is important, and we prefer section 1 to section 4.
Our fourth concern is the role of communities. Nowhere in the act presently are there explicit mechanisms for community participation. The way the system has evolved, especially the clinic system, is through extensive input from the low-income communities, whether it's low-income tenants, refugees, immigrants or psychiatric survivors, we need a role for the communities serviced by the act. We need input from the communities, in our opinion.
Our fifth concern is the matter of the regulations. In many instances this act refers to regulations -- "as prescribed by regulations." The regulations are not there. It's very difficult at this moment to comment on specific sections of the act without seeing the regulations. We strongly recommend that when the regulations come in, the low-income community as well as service providers are consulted on the regulations as well.
Our sixth concern is the quality assurance program that is mentioned in the act. We hope that the quality assurance mechanisms that will be set up will not interfere with the confidentiality of clients. Again, what better quality assurance is there than full participation by the people to whom these services relate. In other words, once again we urge that there be community participation in the quality assurance and that in the program one hears from the communities.
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Concern number seven has been raised here again and again, no doubt -- I just came in and heard it -- and that's the commitment of the act to immigration and refugee services. Obviously we understand the that refugees and immigration as a whole are a federal jurisdiction, and that the feds have cut back on transfer payments overall and not particularly to legal aid. But the whole area of immigration and refugees is such an important matter, and refugees and immigrants on very low income can't just become a political football between the feds and the province. I know that this needs to be worked out. I know that in the meantime there's some commitment for two years. But we are worried about that, and that has been repeated many times here.
Another concern we have is section 38, which deals with the powers of the board. Section 38 says that, "If a clinic fails to comply with this Act...the board...of the corporation may direct the clinic to do anything that the board of directors of the corporation considers appropriate." We submit that such powers are immense and could readily be used inappropriately to interfere with the operations of a clinic without the clinic having recourse to an appeal mechanism. There is nothing there, and these are very broad powers.
Another concern is the provision for paralegals. We don't necessarily object to that, but on the certificate side, if the corporation is going to fund paralegals -- I think we all know that there are paralegal services out there, for instance for immigration and for workers' compensation, where the paralegals know very little. The whole field of paralegals is very poorly regulated. We don't necessarily object to paralegals inside the clinics like myself. We are well regulated because we're under the supervision of lawyers. So I'm not saying you have to watch us. Watch the paralegals out there in these little companies that promise pie in the sky to people coming to Canada. Currently there is no regulation for those paralegals. We're a little nervous about that.
Finally, we have some puzzlement about subsection 13(3), which says the corporation is not to provide services in specified areas: "in proceedings wholly or partly in respect of a defamation" -- we understand that -- and "in relator actions." But then in clause (d) it says, "in proceedings relating to any election...." In my case, for instance, I work quite a bit with the homeless, and one of the things we would like to do is organize the homeless to get on the voters' list to vote. That kind of thing would be a legitimate area, but this section might preclude that. So we're kind of worried about that section. Also, clause (e), "in prescribed areas of civil law, for prescribed types of civil cases or for prescribed types of civil proceedings," is a very strong section and we don't know what that means. That could mean very much. So we're kind of nervous about that.
That ends our concerns. Overall, as we say, we like the inclusion of clinic law and poverty law and we thank you very much for making this submission.
The Chair: That allows us three minutes per caucus. We begin with the third party.
Mr Kormos: I like the inclusion of clinic law and poverty law too. But at the end of the day, if it isn't adequately funded, Bill 68 becomes just another bill, just a collection of pages in the Revised Statutes of Ontario. I'm fearful that this government has no real commitment to funding it, because they wouldn't put it in the legislation. They wouldn't put a minimum standard for provision of legal aid in the legislation. They wouldn't put, as was suggested by one presenter, some form of binding arbitration to determine the amount of funding in the legislation. They won't even guarantee stable funding for the next three years. They do for clinic systems but not for the overall funding of legal aid. Very interesting.
Do you have the same fears about the lack of commitment to sustaining the legal aid system?
Mr Poesiat: We have some concerns. We read the act as being a stable commitment for three years, but obviously the amount of commitment in terms of dollars and cents is not mentioned in the act.
Mr Kormos: You're right: stable commitment to the clinic end for three years but not to the certificate end.
Mr Poesiat: We read it as the whole system. Thank you for pointing that out.
Mr Kormos: I'm going to do it again: Subsection 65(5) guarantees stable funding for the clinic program for three years, and 65(6) guarantees stable funding for refugee for two years. There's no guarantee of global stable funding. That's the kicker here.
The lawyers who have been here say, "They're reinforcing the private bar as the conduit of the delivery system for family and criminal law." I say, "But they haven't made even a three-year commitment to funding." Mind you, the Attorney General, Charlie Harnick -- if you only knew him the way I do -- has promised to provide stable funding. But I say to the Attorney General: If you're prepared to promise it, why won't you put it in the bill? Because I think the Attorney General lies. He lied about the family support plan.
Interjections.
Mr Kormos: Well, he did.
The Chair: Order, please. I again ask you to withdraw those remarks.
Mr Kormos: No, thank you.
The Attorney General lied about the family support plan. I'm not prepared to accept his mere say-so about global funding for the legal aid system.
I agree with you. I support the principle of an arm's-length corporation running it. We have some concerns about the nature of the board -- and you've talked about that -- and the tenure. At the end of the day, this government, or quite frankly any subsequent government, can do through the back door what they wouldn't dare do through the front door. They can merely defund it. They can wring it dry. That's what scares the daylights out of me. They're prepared to do that with refugee law, immigration, and you've made reference to that. I appreciate your coming here today, because you've given a perspective of many of the workers in the system.
I don't think I'm going to be voting for it.
The Chair: We now move to the government members.
Mr Martiniuk: I look forward to the day when Mr Kormos makes up his mind.
Thank you very much, sir, for your presentation here today.
Mr Kormos: On a point of order, Mr Chair: I've been unwavering in my accusation and my firm position that Charlie Harnick is a liar.
The Chair: That is not a point of order.
Mr Martiniuk: It's unfortunate, sir, that you have to see a person act unparliamentary, knowing it's unparliamentary, but he continues to act in that fashion. It really hurts some of the good points he makes because he becomes irrelevant when he acts that way.
Mr Kormos: What was that word?
Mr Martiniuk: "Irrelevant."
Mr Kormos: Hansard would have had a hard time with it the first time around.
Mr Martiniuk: And the other word was "unparliamentary."
In any event, the Attorney General has indicated that a memorandum of understanding will be signed with the new corporation to guarantee funding for the plan for the next three years. I think the Attorney General also recognizes the importance of immigration and refugee, because he has also guaranteed, right in the statute -- the only government to ever do it; Mr Kormos's government refused to do that. He's given two years' guaranteed funding.
The question I'd really like to ask you at this moment -- and I think the commitment in the act and the Attorney General's commitment to clinics are self-evident. I assume your clinic, for instance, has a board of directors. How would you envision the input you're suggesting from the clients being filtered through the board of directors? Are you talking about committees? How would you --
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Mr Poesiat: If it comes to the selection of directors, we suggest that various organizations such as poverty groups, unions and the faith community have input. But also, as a permanent input, we suggest -- and we've pointed it out in our brief -- a permanent committee, with maybe a three-year turnover, of representatives or appointees from anti-poverty groups, unions, maybe labour councils, the faith community and so on and so forth.
Mr Martiniuk: I don't mean to pick on your group, but you're familiar with it. Do you have subcommittees for input at the present time, or do you feel that that has to be institutionalized?
Mr Poesiat: At present, community legal clinics usually have community boards or significant representation on those boards from community members. But in this there is no precedent, because this is an independent corporation. We're saying that there is no provision in the act for a mechanism for input from the communities we serve, both the legal aid certificate side and the clinic side. So I'm talking about there being a permanent mechanism where there can be representatives from various community groups in an advisory role from the community advising the board as well as the clinics.
The Chair: We move to the official opposition.
Ms Castrilli: I truly appreciate your comments. We've not had a lot of input from labour during our hearings, so it's really great to have you here.
There are so many things I could ask, but I want to focus on one in particular that you set out in your brief, because I think it's an important point I'd like you to elaborate on, and that is what you call the arbitrary powers of the board under section 38. I agree with you that the section is so broadly worded that the corporation could do virtually whatever it wants, and there's no recourse in this legislation at this point. I'm wondering what your advice is as to how you might draft some more reasonable powers for the corporation. What would be reasonable for you?
Mr Poesiat: Basically, section 38 talks about when the clinic is in trouble. Unfortunately, local 525 has been involved in scenarios like that; for instance, the defunding of Metro Tenant Legal Services. What we would like to see is a provision where, when things go wrong in a clinic, there is some kind of monitoring provision before drastic things happen, that a board can then take some steps without closing down the clinic, and that in the steps a board can take in a case like that, there is due process, there is an appeal mechanism and there are mechanisms for bringing that particular organization back on line. So we would like to see some specific steps when a clinic is not performing well or whatever, and for what reasons, what the criteria are and what the steps are before it's gets closed down.
Ms Castrilli: One thing that has been troubling me throughout these hearings, and even before, when we had a look at this bill, is that it really provides a structure but, as you pointed out with respect to this section, there isn't a lot of substance about how you're actually going to deal with some of the problems that may arise. In particular, the issue of funding is very difficult for us and for many of the participants here.
Two suggestions have been made to provide some stability of funding, and I wonder if you might quickly comment on them. There's very little here that's guaranteed, and even the guarantees are really not guarantees at all. One is that there be a three-year rolling budget with respect to legal aid generally, not just clinic and refugee, so that you never come to the end of the three years. You're always setting a new budget. The other is that the memorandum of understanding that must be entered into, assuming that the Attorney General and the corporation can't enter into an agreement -- for whatever reason, there are disputes -- rather than leaving it solely at the discretion of the government to determine how much money it will put it in, that there be a provision that it go to binding arbitration, so that there's a reasonableness, hopefully, in the amount of money that will be allocated. What do you think? Good or not good?
The Chair: Thank you very much. We very much appreciate your --
Ms Castrilli: Let him finish, please.
Mr Poesiat: I think both suggestions are good ones.
The Chair: Thank you very much for coming forward with your presentation today. We very much appreciate that.
The committee will take a five minute recess at this time.
The committee recessed from 1606 to 1613.
FAMILY LAWYERS' ASSOCIATION
The Chair: I call the committee back to order.
Mr Martiniuk: Mr Chairman, we had a cancellation today and we have a little bit of time. The Family Lawyers' Association is here and would like to present, although they are not scheduled on today's agenda. I'd ask for unanimous consent.
The Chair: Is there unanimous consent to allow the family law association to present? Agreed. I ask the representatives of the family law association to come forward and identify themselves for Hansard.
Mr Martiniuk: I didn't mean to take them out of order. I just meant we should hear from them today.
The Chair: The other presenters are not ready at this time. As we're back, we might as well call them forward.
Just so you know, there's a total time allocated of 20 minutes. At the conclusion of any presentation you may have, the time is divided equally between the three caucuses for questions and answers. Thank you for coming. You may begin.
Ms Mary Reilly: Thank you. My name's Mary Reilly. I'm chair of the Family Lawyers' Association.
Ms Elizabeth Ennis: My name is Elizabeth Ennis. I'm vice-chair of the Family Lawyers' Association.
Ms Susan Switch: My name's Susan Switch. I'm the past chair of the Family Lawyers' Association. I think I've been elected to do the speaking today.
First of all, I don't know what other people's presentations have been like, but just off the top, I'd like to say that we have some very positive things to say about this legislation. We're actually quite pleased with it.
Perhaps I can tell you something about our organization. We're called the Family Lawyers' Association. We've been in operation since 1994. Most of us practise family law in Toronto. Our organization was started as a result of the legal aid crisis that happened during that period of time. We've been involved in giving presentations and liaising with legal aid and with the government over the last few years. We made submissions to the McCamus commission and those types of things.
One of the things I would like to say is that from our point of view, there are some very positive things about the legislation, particularly in the fact that family law is acknowledged as well as criminal and immigration and the clinics, and in terms of the fact that the legislation refers to having a foundation of the judicare model, which has always been, in our submission, extremely important.
I don't know if you've heard any information about this, but obviously there's some flexibility built in. They're experimenting at the present time with family law clinics in various areas of the province at the present time, including Toronto. It is clearly indicated in the legislation that the private bar is going to be the primary service model for legal aid services in Ontario. We've always submitted that it's important that the judicare model be the primary delivery model for legal aid in Ontario, for all kinds of reasons, including freedom of choice of counsel, having a flexible and diverse legal talent pool, quality of service, and the fact that the overhead and the costs are actually absorbed by the profession as opposed to being paid for out of the public purse.
We do have some very positive comments to be made on the fact that there is provision made right in the legislation about having advisory boards and advisory boards in various areas of law, including the family law area. That's something we felt very gratified about in the last couple of years, in the sense that we've been meeting with the legal aid committee of the law society and also with the legal aid personnel in terms of giving them our input from the front lines, so to speak, about what's going on in terms of providing these legal services for modest-income people in Ontario.
There are a couple of things we have concerns about, though, in terms of the provision of legal aid services in family law. In section 2, they refer to the definition of "service provider" including "a person, other than a lawyer, who provides legal aid services, including a paralegal and a mediator, and then it goes on to refer to the fact that "A paralegal shall not provide legal aid services except under the supervision of a lawyer." In our submission, obviously there has to be a lot of concern about how paralegals are used in the context of legal aid services. Perhaps that needs to be defined a little more carefully. I'm not sure it's clear what "supervision" means.
It's important to note that paralegals are, at this point in any event, unregulated. They don't have any standards for their education or their continuing education or discipline. They're not officers of the court. They can't appear in Ontario Court General Division. Our concern that we'd like to express is that there needs to be very careful consideration of how they're going to be used. Perhaps "supervision" needs to be defined, in the sense that it's not going to be just someone who opens up a law office and has 15 paralegals farmed out to run around to the different provincial courts acting on their own. That's the kind of work we do, that's the kind of work we've been trained to do, and we like to think we provide good service for our clients in that regard. That's one of the concerns we have.
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The only other concern that we really have is in terms of the composition of the board. There's reference there to the fact that a majority of the board must be non-lawyers. In our submission, in some ways it seems as though it's perhaps a negative way of putting that. Presumably, there may be an argument by some about the fact that this is going to be a program that provides legal services and obviously also provides payment for lawyers and that perhaps other people should be administering that.
It's very clear from the composition of the board indicated in the legislation that they're concerned about having business people on that board and people with interests in other areas. That's of great concern, but perhaps some consideration should be made to the fact that the best people should be appointed, as opposed to weighting it so that the majority have to be non-lawyers. Perhaps the best people should be chosen.
Basically, that's all we had to say, other than the fact that we feel optimistic about this legislation and about the new regime and the fact that this is going to provide good service for our clients. I'm sure you're well aware of the difficulties our clients have had, especially in the last four years, with the instability. There was a point in time when very few family law clients in Ontario were being serviced by legal aid. The system seems to have been somewhat stabilized. The provision for having budgets decided well in advance so that people know what to expect is very admirable. Those would be my submissions.
The Chair: Thank you very much. That allows us approximately four minutes per caucus for questions and answers. We begin with the government members.
Mr Bob Wood: Before I put my question, I should draw to your attention the fact that I've already said I think the area of family law tends to be underemphasized right now in the plan. There can be some quite simple things that can be quite helpful, like an undefended divorce, which isn't covered much by the plan these days.
However, there's one thing I'd like to touch on and seek your comments on. The problem, in my experience in these cases, is not so much determining the legal issues as it is the animus between the parties and getting them to do what they're going to end up ultimately doing anyway. I think there's a lot of potential in mediation and that sort of thing to try and reduce the pain to the parties and the cost to the system. Do you think there are ways of reducing the costs and making the system work better, and if so, what are they?
Ms Switch: There are always ways of reducing costs in systems. I think mediation is really important. At the present time, it's considered more and more in terms of trying to deal with any kind of family law case, whether people are on legal aid or whether they just can't afford to litigate. On the other hand, it's important to note that a lot of times in family law cases, if there's a disparity of power between the parties, if there has been abuse, that type of thing, mediation might not necessarily be appropriate. That's one of the concerns. Family lawyers always have concerns about having, say, mandatory mediation because of the concern that perhaps there's an imbalance of power in a particular couple and the parties don't necessarily feel comfortable being in the same room talking about the issue. But certainly, yes, I think most family lawyers feel that mediation, if possible, is a very positive thing to be doing.
Mr Bob Wood: If you were making a recommendation to the new corporation, what would be the system? Where would you introduce mediation into the system?
Ms Switch: We do have mediation in the system. Our --
Mr Bob Wood: Sorry to interrupt, but what I'm saying is, at what point would you introduce mediation? When the case starts? Partway through? Towards the end? All three?
Ms Switch: I think most people would probably feel that mediation can't be introduced too soon in the system. Sometimes when people separate, especially if there's a great deal of animosity, they need time to settle in and come to grips with what's happened and with the changes in their lives. But that's certainly an individual thing.
There are all kinds of things that have recently been put in the court system in terms of public education. The General Division court has a mandatory public education regime now where the parties have to go and listen to a lawyer and social worker and watch a movie before they are allowed to proceed with their litigation, that type of thing.
In terms of cost-cutting, though, I would like to say that throughout the last of couple of years family lawyers have been very reasonable in suggesting cuts. When there was the cash-flow problem at the law society with legal aid, we voluntary agreed to cut back certain services at that time. That's always been something we have dealt with.
One of the things that happened that I think is important to realize about legal aid: Two years ago, family law legal aid was cut so drastically in this province that people were really underserviced. There are a lot of cases -- it's fine to talk about mediation and all these other things -- where people need to go to court and they need proper representation, and they just weren't getting it.
Ms Castrilli: It's good to have the family bar here. Yesterday we heard from some of the women who have had some difficulty with the system, the Association of Separated and Divorced Women. They told us some very tragic tales.
I want to pick up on the point that you just made, that legal aid for family law really has been cut dramatically. Professor McCamus pointed that out very clearly. In fiscal year 1993-94, there were some 65,700 family law certificates that were issued. That dropped, in 1996-97, to 29,000. That's the decrease you find. However, the plan only issued about 14,000 of those. The figures are very drastic. Then certificates of course were only available for first-priority matters, which left a whole lot of women -- mostly women -- in great difficulty. On top of that, if memory serves -- I don't have the figures in front of me -- the amount of time you could spend on any individual case went down from about 16 to five or something along those lines.
Ms Switch: I think it was 6.5.
Ms Castrilli: Thank you. Still, you know what it takes to negotiate in your business, and 6.5 hours probably just gets people to talk to you, let alone do any substantive work, which is the reality you face.
When I see that this legislation says it will guarantee funding only in certain areas, clinic and refugee and immigration law, for three years and two years, respectively, but that funding in any event is frozen at the current levels, I wonder why you have such confidence that it's going to get any better in family law.
Ms Switch: I suppose, optimistically, I was looking at that from the other side. They were basically saying, "You're going to have this funding for this amount of time." We're named in the legislation. I guess we were assuming that we're a big part of the budget. They're going to negotiate their budget -- I believe it's a five-year time frame -- and we're going to be a big part of the budget, as we have been for quite a few years.
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Ms Castrilli: But what you have right now is that 83% of all certificates are issued in criminal cases. There is nothing in this legislation that says family law is going to be on a par with other areas of the law. It just says funding generally for legal aid is frozen at current levels, so you can understand why I'm a little perplexed by the position you take. I would love to be optimistic, because I know the work you do is stressful and it takes long hours. It's unlike any other areas of the law because you're dealing with people's raw emotions and you're dealing in some very difficult situations. I just don't see in this legislation anything that would give me comfort that your job is going to be made any easier.
I should say, by the way, that is also the position of this organization that we met yesterday. They were very concerned about the fact that there is so little money allocated now and it only goes to priority-one cases. There's really no possibility at the moment as the legislation is written, without guarantees of additional funding, that it would change in any way.
Ms Reilly: It's not just priority-one cases, though. There was an opening up of the legal aid tariffs in the last year, so there are more cases being funded at the moment.
Ms Castrilli: I agree, but it's minimal compared to --
The Chair: Thank you very much, Ms Castrilli. We now move to the third party.
Mr Kormos: I'm glad you were able to make it, because this is the last day. This is it. There's one more group after you and that's it. Then it comes down to the nitty-gritty: clause-by-clause.
You talk about the corporation negotiating with the government. Far be it from me to try to tell you how you do your business, but from what I know about negotiating, negotiations are only really negotiations when both sides have some power or some clout. Right? If the corporation, though, has no inherent power or clout, that bothers me as to how much negotiating there really is. I read the act, and I read it and I read it. Sure, the corporation will present a budget, but this government or the next government -- whoever Mike Harris's successor is going to be -- will determine the amount of money the corporation is going to get.
It's been suggested that maybe there should be some binding arbitration process whereby if the corporation feels that the amount of monies offered by the government are inadequate to maintain even a minimum level of legal aid services, there should be a means whereby they can litigate it, go to binding arbitration.
But at the end of the day, when a plan is stuck for money, they can reduce the hourly rate. There's a point at which -- what is it, 67 bucks an hour?
Ms Ennis: Yes, that's the basic rate.
Mr Kormos: Down in Welland, where I come from, you're barely doing it, running an office, at 67 bucks an hour. In Toronto, I don't know how you do it.
Ms Switch: Try doing it in Toronto.
Mr Kormos: Exactly. You can raise the eligibility standards so fewer people get a certificate; you can delist services as such, as has been done; or you can control the maximum number of hours, which has the same impact as reducing the hourly rate. I can't think of any more ways you do it. So I'm asking you, which one of those means, or which combination of them, are you suggesting that this or a subsequent government should use in an underfunded system?
Ms Switch: Oh, boy. It seems like we've been through this route so many times.
Mr Kormos: I know.
Ms Switch: One of the things you have to bear in mind too is that I think the government and certainly the administration of justice realize that they were greatly affected by those cuts in legal aid as well. The judges are overworked. The whole system comes to a halt. It all has to work together, does it not?
One of the things that happened to us family lawyers is that initially we agreed to cuts and then we were cut again. That's basically what happened to us. One of the things that we've been most concerned about is that our clients are adequately serviced. Obviously, if you don't have enough hours to do a proper job, the clients are at a disadvantage.
I don't know what else to say about that, other than that what has been found out in the last couple of years is that the clients weren't represented and the whole system basically ground to a halt as a result of the cuts they made to legal aid.
Mr Kormos: I suppose all I'm saying is I don't trust this government, but there's nothing new about that, because I haven't trusted earlier governments either, regardless of their political stripe. We can't count on governments per se. What I'm afraid of is the next government taking advantage of this unilateral funding power the same way, let's say, you can promise to eliminate the GST but once you're elected, hey, it's not shabby; nice revenues.
The Chair: Thank you very much for coming forward today.
INJURED WORKERS' CONSULTANTS
The Chair: At that, we would call our last presenters forward, the representatives of the Injured Workers' Consultants. Thank you for coming.
Ms Constanza Duran: I would like to start our presentation by introducing myself and my co-workers and colleagues. I'm Constanza Duran from the clinic. I'm staff at Injured Workers' Consultants. I'm a community legal worker. John McKinnon is the executive director. Peter Bird is a lawyer. Richard Hudon is another member of our board.
Mr Peter Bird: Just to clarify, I'm a lawyer and I'm a member of the board of directors of the legal clinic.
I'm going to start just by telling you a little bit about Injured Workers' Consultants and why Injured Workers' Consultants is in a very good position to talk to you about the main issue we're talking about today, which is the use of paralegals in providing legal services.
Injured Workers' Consultants was founded back in 1969 by a group of injured workers and other people who were not lawyers to provide representation to injured workers in dealing with the compensation board, and it's continued on that basis since. Most of the casework done at Injured Workers' Consultants is done by paralegals, as they're known in this bill; in the field, they're known as "community legal workers" or CLWs. Injured Workers' Consultants, staff-wise, has one lawyer, John, and seven community legal workers and one support staff. The vast majority of the casework is done by CLWs, and in fact done in an excellent way. CLWs can provide, and in many cases do provide, great service, if it's in the right context.
IWC became a community legal clinic in 1978 when the clinic system was created, and has continued on that basis since. IWC is a fairly unique clinic because there's no mandate that we have a staff lawyer. Until about 10 years ago, there was no staff lawyer at IWC. The clinic funding committee accepted that because the CLWs at Injured Workers' Consultants were widely recognized as experts in workers' compensation law and providing very good representation. Most clinics are not in that situation, but we are because of the expertise of our CLWs.
CLWs from this clinic have gone on to various other important roles in the workers' compensation sphere, such as sitting as vice-chairs and side members at the Workers' Compensation Appeals Tribunal, sitting on the Occupational Disease Standards Panel, which no longer exists, and have shown that CLWs can do a good job in the field.
Injured Workers' Consultants, as a community legal clinic -- the board is representative of the community we serve. We have today three of our injured worker board members from various communities. We have Don Comi here from St Catharines, we have Swaran Singh from Pickering, and we have Costas Parlanis representing the Greek community. Our board has injured workers also from Etobicoke, Toronto and Bancroft. There are three lawyers on the board, one of whom is me. We all represent injured workers. We also have a law professor from Osgoode Hall Law School and a health and safety rep from a labour union, the Steelworkers.
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What service the clinic provides -- and as I said, it's provided primarily by the community legal workers -- is mainly case work. However, because of the expertise of this clinic, we also provide training to many of the other legal clinics throughout the province. Clinics that do some workers' compensation but don't specialize in it need training, and the CLWs at IWC provide that training. In terms of the comments you're going to hear from other people from our group today, keep in mind that comments we're making about paralegals are coming from a very solid foundation of knowing what work paralegals, community legal workers, can do.
I think Richard's now going to comment.
M. Richard Hudon : J'espère que vous allez avoir de la patience avec moi, l'anglais étant ma seconde langue. Je ne m'attarderai pas tellement longtemps, mais du moins je veux faire la présentation en anglais.
Providing advice and representation to injured workers who are having difficulty with their workers' compensation claims has been a very important part of clinic law from the beginning of the community legal clinic system.
In Bill 68, workers' compensation law is not specifically listed as an area of clinic law. We trust this is because it goes without saying. The majority of the general service community legal aid clinics in the province provide advice and representation to injured workers in workers' compensation matters. Across Ontario, more than 7,000 injured workers receive assistance from community legal clinics every year. Legal aid clinics are an important resource for injured workers, because their conflicts with the workers' compensation system is often perceived as a conflict with the government. The independence of clinics and our community base makes us accessible as a resource for injured workers who are seeking access to justice from the compensation system.
In our office, we are starting to feel increasing demands for services from injured workers and we are seeing greater complexity involved in the representation of injured workers. The complete revision of the workers' compensation law this year has meant that more injured workers require advice and assistance with their claims. However, there has been no increase in the resources devoted to the advice and representation of injured workers in the legal aid system.
In fact, there has been a reduction in the availability of legal aid services. This has come about in several ways. First of all, with respect to the provision of legal aid certificates, there was recently a central guideline clarification issued from the provincial legal aid office restricting the availability of legal aid certificates to only representation at the Workers' Compensation Appeals Tribunal. Previously, the guidelines allowed some discretion, and in many districts legal aid certificates were provided for all aspects of workers' compensation claims, not just hearings, which allowed earlier access.
Secondly, in order to get a legal aid certificate, you will not only be asked to give a lien on your home, but you may now be asked to sign an agreement obligating you to repay the cost of legal aid out of any future workers' compensation benefits. Also, once any money is recovered, the certificate is cancelled, as legal aid expects injured workers to use the money recovered to retain a lawyer rather than for living expenses.
These are terrible disincentives. Workers' compensation and recoveries in other income support areas used to be exempt from the repayment obligations. For example, social assistance, unemployment insurance, criminal injuries compensation and workers' compensation were exempt. Injured workers must gamble with their home and compensation benefits in the hope that they might get some further assistance from the compensation board. When legal aid has a lien on your house, it gets the money whether you win the case or not. Even if you do win, some of these appeals can be long and complicated and the lawyer's bill might be as much as or more than the compensation that is eventually awarded. Although they are desperate, injured workers are generally unwilling to gamble so much to get a legal aid certificate to pursue their rights under the workers' compensation legislation.
The services of legal clinics are free of charge to those who qualify financially. This may be an option for some injured workers, but staffing has been frozen at 1992-93 levels while many clinics have had increased demands for representation from different client groups such as social assistance or landlord and tenant issues. Competing demands for assistance out of limited resources has left some general service clinics no option but to limit the services to injured workers to meet the increased needs from other sectors of the community. The result has been a decrease in the services available to injured workers from legal clinics.
This will be problematic. The Workers' Compensation Board has told our staff that in the first six months of this year the number of appeals it received has increased by nearly 100% over the numbers of appeals filed in previous years. We are also told that over 80% of those appeals are being filed by injured workers. At the Workers' Compensation Appeals Tribunal their most recent annual report shows an increase of about 50% in the number of appeals filed this year over the previous year. Many of these injured workers are coming to community legal clinics for help. This concerns us, because there is no guarantee of adequate funding for ongoing legal aid services in the bill. Even with three years of continued funding at current levels, the increased demand for services means that, in effect, the availability of legal aid services is being reduced.
The increasing desperation of injured workers combined with the lack of sufficient resources for representation has led some injured workers to commit acts that endanger themselves or others. The Workers' Compensation Board reports a significant increase in the number of claims not allowed because they have been abandoned by the injured worker. In recent years, we have all seen reports of examples, such as the homeless injured worker in the Toronto Star last weekend; the injured worker who took his own life at the board's office in Ottawa; the injured worker on a hunger strike in Hamilton last year; or the injured worker who took staff hostage at gunpoint at the board's office in Timmins. We ask you to consider how community legal clinics will continue to provide a high-quality legal service on a frozen budget if the need for those services across Ontario increases like the number of appeals have increased at the board and the appeals tribunal.
When you are unable to return to work because of your disability, getting assistance from the Workers' Compensation Board can become the most important thing in your life. Now, more injured workers don't understand the system. They are desperate for help so they are turning to private fee-for-service paralegals to take their case, and this is creating problems.
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Mr John McKinnon: I'd like to give you some idea of the problems happening with private fee-for-service paralegals representing injured workers.
You know the appeals tribunal is the final level of appeal in the compensation system. Although you don't have to have a representative, their statistics are that 90% of the injured workers who go there do so with a formal representative. Their decisions are published, and they've documented a serious problem with the quality of representation by private fee-for-service paralegals. This contrasts with the proud representation we present in the clinics. They've documented the problem. We've attached to our brief summaries of a number of decisions in which they've commented on that problem. The problem is so serious that the tribunal felt compelled to develop a code of conduct for representatives. I believe it's the first tribunal in Ontario to do so. I know the government is working on something to deal with that.
Some of the examples you'll see from the appeals tribunal are paralegals not showing up at the hearing; paralegals showing up late for the hearing; paralegals quitting during the hearing -- "I quit"; paralegals not bringing the injured worker to the hearing; paralegals showing up without having prepared the case; and paralegals being ejected from the hearing for obstructing the process.
It's a serious problem. The tribunal has commented on it. I urge you to take a look at the examples. In one of them, both the employer and worker side members wrote an addendum commenting on the problem, recommending, as the government is doing, that there be some investigation in a body to represent paralegals. They conclude -- I quote it in my portion of the brief -- that if something isn't done to ensure quality control, "parties may be innocent and unknowing victims of substandard representation, albeit in the minority of instances."
This is true. Workers' comp is one of the most complex areas of law in Ontario legislation and people don't necessarily know whether they're getting a good quality representation, whether the representative is taking the right approach. Problems that sound simple can be quite complex.
I'll give you the example of a pension appeal. I was at the appeals tribunal on Tuesday for an injured worker who was going to be here -- he's in a wheelchair -- but he was having trouble with Wheel-Trans. It's a simple issue: a pension increase. The board has rated him as being 35% disabled. He can't walk; he can't even get in and out of the bathtub or prepare meals by himself. We wanted to argue that it should be higher. Just to get to the appeals tribunal takes a certain amount of correspondence back and forth with doctors and so forth. This is what, in my files, I had to produce just to get the case to the point of going to the appeals tribunal. Then, when you object, the Workers' Compensation Board will give you their file, which can easily be 1,000 pages of documents in a case that goes back over a period of years.
To prepare for the appeals tribunal, you need to try and pare it down. If you're lucky, you can come to some agreement that maybe 500 pages or so is all you need to look at for the appeal. Then, of course, various parties come up with a few addenda, and then you have to do your research. You have to read all this stuff, research the medical literature, photocopy all kinds of relevant material, write up your presentation, write up your submission and there you go. That's just for what people talk about as a simple issue, a pension appeal. Then you get half a day or a day to present the case.
What I ask you to consider is, how is the board of the new Legal Aid Ontario going to ensure, through the use of paralegals, that there is some quality, some thoroughness in the preparation, that the time is spent to review the material?
Also, it raises issues of confidentiality in terms of what obligations paralegals have in terms of solicitor-client privilege, in terms of confidentiality of the document. In here, for example, there are reports from two different psychiatrists, two different social workers, 10 years of reports from the family doctor and two psychologists. This file contains material which is so personal and so confidential that the injured worker involved will not let me discuss it with anyone. He will not discuss the details with me. He says these are personal, very private, highly embarrassing, have nothing to do with workers' comp, and he doesn't want to discuss them.
The provision under section 91 of the bill for quality assurance audits would allow an employee of the new legal aid corporation to come say: "OK, John, it's time for the quality assurance audit. Let's take a look at this file." What am I supposed to do? My instructions are entirely clear: "Do not discuss this with anyone." On the other hand, the legislation gives them the power to compel me to give it. In the short run it's my problem, but in the long run it's something that the new board of Legal Aid Ontario will have to grapple with.
The Chair: Just so you know, there's a minute remaining in your time.
Mr McKinnon: All right. I just wanted to emphasize that issues such as quality control are important problems for the board to grapple with. Perhaps I'll let Constanza just wrap up with a few concluding comments.
Ms Duran: Our clinic is a member of the Association of the Community Legal Clinics of Ontario and we endorse the comments they made a few days ago here in front of you.
We wanted to conclude by saying that workers' compensation has always been an important part of clinic law. Recent changes have increased the needs for injured workers for legal advice and representation and have also decreased the availability of legal aid certificates for this purpose. It is possible to provide increased legal aid services for injured workers in a cost-effective manner through the use of non-lawyer advocates. It is possible to provide high-quality representation through community legal workers in the community legal aid clinic system.
The experience to date suggests that the expansion of the legal aid services for injured workers through the use of fee-for-service paralegals at this time could become tainted by poor-quality representation, and that could bring the services of Legal Aid Ontario into disrepute. The people in charge of Legal Aid Ontario will need to have the knowledge, skills, experience and the independence to make the right choices so that access to justice for poor people is not sacrificed in the name of expediency.
We also wanted to say in terms of the representation on the board of directors of Legal Aid Ontario that it's important to have members of the communities on the board, not only members who represent such communities. We think it's really important that members who are part of their community, such as, in our case, injured workers, be on the board of directors of Legal Aid Ontario, as well as other communities, the people who will need the services of legal aid.
The Chair: Thank you very much for your presentation today. We very much appreciate your coming forward.
Mr Kormos: On a point of order, Chair: This is the final presentation of the hearings. Quite frankly, this is the first discussion we've had of this facet, the workers' comp facet and workers' advocacy. I'm asking for unanimous consent to extend these hearings by 10 minutes so that each caucus has three and one third minutes to engage in dialogue with this group. This is incredibly important.
The Chair: Is there a unanimous agreement? Agreed. We will begin the questioning with the official opposition.
Ms Castrilli: Thank you very much. I certainly want to commend you. If we hadn't heard from you, we wouldn't have heard at all from the workers' compensation and injured workers' side of it.
We've had some recommendations that have been put to us with respect to paralegals. I think you can expect that there will be some amendments, certainly put forward by us, with respect to that to make sure you don't have incompetent individuals, particularly in areas as traumatic as the one you're involved with and particularly around the issue of confidentiality. By the way, just so you know, we've just received an opinion by the Privacy Commissioner, who is extremely concerned about certain provisions of the act in terms of how they collect information, what information is required, what should be reasonably required, what should be reasonably disclosed. All of those are issues that we've been raising, and it looks as though we have confirmation from the Privacy Commissioner. But those issues are important.
So you're spot on. What you're raising here are critical issues. We will certainly be putting forth those amendments and I trust the government will accept those amendments.
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You raised the issue of clinic law not including workers' compensation law, and I think that's an interesting one. As I read the act, it talks about income maintenance programs under clinic law. Are you suggesting that that's not specific enough and that you want something further with respect to that?
Mr McKinnon: No, what we're suggesting is that it should go without saying. We distinguish workers' compensation from other taxpayer-funded forms of social assistance, because there is a tendency to talk about cranking down benefit levels in tough times and that that should apply equally to injured workers, who are funded solely by the employers where the injuries are caused, as well as to other people who are on taxpayer-funded forms of social assistance. So we make that distinction.
We think that it goes without saying, hopefully, that workers' comp is an area of clinic law. We were wondering whether a specific mention of workers' compensation law might suggest that all community legal aid clinics are expected or required to provide services for injured workers and workers' compensation matters. The concern about that is that it would interfere with the independence of the community board. In some areas their needs are different, the demands are different, and we didn't want to interfere with the discretion of each community board. That's why we're not saying that it should be included, and we're hoping that it goes without saying.
The Chair: We move to the third party.
Mr Kormos: Three issues.
One: The defunding of our constituency offices across the province, and now the reduction of those numbers to 103 from 130, has put real pressure on those of us in the New Democratic Party who were doing workers' comp work out of the office. We've had to abandon it almost across the board and hand it over either to clinics in our community or to OWAs or to workers' advocacy groups. I want to make that clear, and it's not going to get better. It's going to get worse.
Two: The issue of paralegals. We've heard some pretty strong arguments, and I note that in your written submission towards the end, you've got some strong views expressed about private sector paralegals. I want to see paralegals out of the bill in terms of being capable of receiving a certificate, at least at this point, when they're not even regulated. But you've also talked of CLWs -- and no disrespect to lawyers here, but I get to bash lawyers because I used to be one -- and the fact is, in workers' comp I'll stack most of the lay advocates up against a lawyer any day of the week.
The experience I've had, be it with clinic advocates, organizational advocates or OWA advocates, any day of the week, the companies hire these big high-priced lawyers and the paralegal working with the clinic or OWA runs circles around them. So I want to make it clear that, in my view, I want to eliminate paralegals from the bill by way of private sector service provider certificate, but we don't want to do it in a way that excludes them from providing the services in clinics. I just want you to respond to that so that we can develop an amendment or get on the record exactly what our intention is.
Ms Duran: At the legal clinic we community legal workers are basically accountable. We are accountable to the community through our board of directors. We do extensive research and studies and share information about the injured workers, and we are accountable to them, so our work as community legal workers is really important for the community.
Mr Kormos: My final issue is that this bill does not guarantee any minimum standard for what constitutes adequate legal aid services in the province. This government and subsequent governments, whoever replaces this government in six or seven months' time is going to be able to decide unilaterally the amount of funding. So any government, this one included, or subsequent governments, can do through the back door to the legal aid system what they wouldn't dare do through the front door, simply by saying, "No, you only get X number of dollars."
It has been suggested that there should be, among other things, minimum standards for what constitutes legal aid services and an arbitration process that is binding on the government, where the corporation could go to arbitration to say, "This is X number of dollars that we need to run an adequate system." What do you say to that?
Mr Bird: If I could respond to that, as you probably know, some years ago the legal aid plan essentially switched from being a plan where dollars were provided according to need to a plan where dollars were allotted and whatever need could be fulfilled with those number of dollars was fulfilled. That's a big problem.
I'm in private practice. I've done a lot of legal aid work throughout the 14 years I've been in practice, and it's just been drastically slashed and hacked. You heard from the Family Lawyers' Association about how their tariff was reduced. For workers' comp it was reduced from 25 hours of preparation for a one-day hearing to six, so you can imagine going through these kinds of files.
Mr Martiniuk: I'd like to thank you very much for your presentation here today. I have personal knowledge of the good work your clinic and many of the clinics have provided to my constituents with great assistance, and I thank you for that.
I should say that as a result of the hearings, and you've raised the point also regarding paralegals, it was not the intent of the legislation to provide certificates to paralegals per se, and we will be providing amendments which will clarify that. Legal aid certificates will still be available, of course, for workers' compensation matters, but they will only be available to lawyers as they have in the past.
I was not aware of the number of paralegals. Can you put any estimate on the number of paralegals who might be operating in the workers' compensation system?
Ms Duran: At the appeals tribunal, statistically representation of paralegals was approximately 40%. The Office of the Worker Adviser was the next one, which was about 20% of the representation.
Mr Bird: In terms of absolute numbers, it's hard for anyone to know because they are totally unregulated. But I think anyone who does work in the field knows that the numbers have exploded recently because of the waiting lists at the community legal clinics and the waiting lists at the Office of the Worker Adviser. The legal aid cutbacks have meant a lot of private lawyers aren't doing it any more because you can't run a practice on it. This has created a huge need and these private paralegals have stepped into the void, many of them, unfortunately, not doing a good job.
Mr Martiniuk: I'll just leave it. The Attorney General has provided me with instructions to study this matter of unregulated paralegals. I've been doing that for the past eight months. If you have any specific recommendations, I would appreciate you writing to me and providing same. Thank you very much for your presentation here today.
The Chair: Thank you very much for coming forward today and giving us your presentation.
Mr Kormos: I want to express appreciation to the parliamentary assistant for indicating that he has received direct instructions from the Attorney General to respond to the paralegal issue. Even though the Attorney General was in New York being courted and wined and dined over the weekend by high-priced corporate power, he still found time to send some instructions to his PA, and that's good to hear.
The Chair: Thank you, Mr Kormos.
I would remind the committee that the amendments are due by 3 pm tomorrow. This committee rises until 3:30 pm on Monday, November 23.
The committee adjourned at 1709.