Legal Aid Ontario

Appealing ODSP Appeals

Posted in: "All, Administrative Law, Legal Aid Ontario, Legalese Dictionary by Admin | No Comments Wednesday, August 19, 2009

Not all Ontario Disability Support Program (ODSP) appeals before the Social Benefits Tribunals are successful. (If they were, there wouldn’t have been a tribunal to hear them in the first place.)

What can you do if your ODSP appeal is denied?

There are two routes – you can either make an application for reconsideration before the Social Benefits Tribunal or appeal the decision to the Divisional Court.

Application for Reconsideration

Application for reconsideration may be filed by the Director of the ODSP or the appellant. The application must be filed within 30 days of the receipt of the decision. If the Social Benefits Tribunal grants the application for reconsideration, a new hearing will be conducted.

In considering whether to grant an application for reconsideration, the Tribunal takes into account such factors as whether the Tribunal:#

  • acted outside its jurisdiction
  • violated the rules of natural justice or procedural fairness
  • made a serious error in law
  • did not have access to new evidence that would have had material effect on the decision.

or whether there is any other substantial ground for reconsideration relevant to the decision.

Appeal to the Divisional Court

Appealing the decision to the Divisional Court is rarer than making an application for reconsideration before the Social Benefits Tribunal for two reasons:

  1. By statute, appeals to the Divisional Court are limited to a question of law.* Therefore, cases involving the finding of credibility of witnesses cannot be appealed this way.
  2. Further, most ODSP cases are funded by Legal Aid Ontario. If the chance of success is minimal before the court, the LAO will be reluctant to grant authorization (unless there is a good reason to do so) given the expense involved in the Divisional Court.

Finally, no appeal to the Divisional Court may be filed if a reconsideration has been requested until the application has been refused or withdrawn, or until the reconsideration hearing has taken place and the Tribunal has delivered its decisions.

PSWLaw is your relentless advocate for ODSP appeals.

# Practice Guideline 2, Social Benefits Tribunal

*Ontario Disability Support Program Act, S.O. 1997, c. 25, sch. B.

Please Note: This article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The legislation and/or regulation may have been amended or repealed since the publication of the article.

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Photographic Evidence before the Landlord and Tenant Board

Posted in: "All, Administrative Law, Legal Aid Ontario by Admin | No Comments Tuesday, August 4, 2009

Visual presentation can be powerful.

As a lawyer who often appears before the Landlord and Tenant Board, I find photographic evidence helpful. While the testimonies of the parties are often contested, photographs offer a fairer and more accurate representation of the scene.

Under the law, the Landlord and Tenant Board may consider “any document or other thing” that is relevant to the proceeding as evidence.* However, for the evidence to be given  proper weight, it should be  authenticated. This is particularly important in the digital age, where photos can be digitally enhanced or edited.

Although the authentication requirements before the Landlord and Tenant Board may be less stringent than those of the Superior Court, the following questions must generally be answered to the Board’s satisfication:

  • Who took the photo?
  • When was it taken?
  • What does it depict?
  • Is it a fair and accurate representation of the scene?

If for legitimate reasons a photograph requires digital enhancement, it’s best done by a reputable third parties, e.g. a commercial photo studio. The person who has enhanced the photos should give evidence on what the purpose of the work was and how it was done. The original, unadulterated version should also be presented for comparison.

Finally, for cases funded by Legal Aid Ontario, there’s generally a cap on how much you can spend on photographs. Therefore, sometimes you may have to choose the most compelling photos to submit as evidence rather than throwing in the kitchen sink.

*Statutory Powers Procedure Act, R.S.O. 1990, c. S22, s. 15(1)

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Duty Counsels

Posted in: "All, Administrative Law, Family Law, Legal Aid Ontario, Legalese Dictionary by Admin | No Comments Sunday, May 3, 2009

Please note: This article is provided solely for educational purposes. The author makes no representation and/or warranty for the services and availability of duty counsels. All inquiries should be directed to Legal Aid Ontario or its equivalents.

In Ontario duty counsels are lawyers provided by Legal Aid Ontario to assist unrepresented parties in legal proceedings, free of charge.

In family and criminal proceedings, duty counsels are generally available at the various court houses, including most Ontario Court of Justice and Ontario Superior Court of Justice locations.

For administrative law proceedings, duty counsels are only available at the various Landlord and Tenant Board locations at this moment, and are for tenants only.

Regardless of the nature of the proceedings – family law or otherwise – unrepresented parties sign up at the duty counsel’s office on a first-come-first-served basis. Depending on the number of individuals on the list, duty counsels sometimes are not able to see everyone.

Duty counsels provide summary advice to unrepresented individuals, including procedural information (e.g., how to fill out a form) and legal advice in broad strokes. Duty counsel may also refer clients to Legal Aid clinics or private bar members. Duty counsels are not part of the judiciary and are not affiliated with the respective courts and tribunals, although their offices are almost always located in the same building.

Depending on the circumstances, duty counsels may appear on behalf of clients.

In family law matters, duty counsels provide a broader range of services. Besides giving unrepresented individuals advice regarding their rights and obligations under the law, duty counsels may review documents or agreements, give procedural directions, and provide referrals. In specific circumstances,* duty counsels may appear on behalf of otherwise unrepresented parties for case conferences and motions. (*Financial eligibility requirements may apply.)

In landlord and tenant matters, duty counsels provide services only to tenants, and may appear for procedural or uncontentious matters (duty counsels in this area generally don’t represent individuals in contested matters).They may also consult tenants on settlement agreements.

If duty counsels provide free, independent legal advice to unrepresented parties, why hire a lawyer?

While not all proceedings require sophisticated representation, duty counsels can only do so much in the allotted time (usually less than 20 minutes) and often have time only to hear the most skeletal version of the facts.

Unfortunately, the devil is often in the details, and duty counsels may have a hard time finding it. If you want to finesse the details of your case, you’re better off with your own lawyer who can devote the time and effort required.

For more information on duty counsels, please visit Legal Aid Ontario online at: www.legalaid.on.ca/en/getting/help.asp

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The Partisan Lawyer

Posted in: "All, Family Law, Legal Aid Ontario, Legalese Dictionary by Admin | No Comments Monday, April 27, 2009

From time to time I’ve dealt with unrepresented parties before various courts and tribunals. To my surprise, more than once they’ve asked me for legal advice. What could I tell them?

Before turning them away, I told them that my duty is to serve my client only, and that they would have to seek independent legal advice from someone else. In appropriate circumstances, I might refer them to the duty counsel (if available) or Legal Aid Ontario.

When I turn them away, it’s not because I’m resentful of the opposing side. Rather, I have to do so because of my obligation under the lawyers’ Rules of Professional Conduct.

The lawyer’s role in an adversarial proceeding is partisan. His or her duty is to the client and no one else. Even individuals on the same side, (for example, co-accused or co-plaintiffs) with different interests in the same proceeding, and therefore require separate representation. Hence, it’s not uncommon in a child protection proceeding that the mother, the father, and the child each has his or her own lawyer.

While this principle may seem easy to apply, it can be rather difficult under specific circumstances. For example, it would be inappropriate for a lawyer to act for both spouses to draft a separation agreement in an uncontested divorce because of the nature of the matter and the high potential for conflict. Rather, the lawyer must advise the clients of his or her partisan role and may only accept one party as the client.

Occasionally clients may complain about the heavy burden of retaining separate lawyers when dealing with the same transaction. If the both parties cannot afford to be represented at the same time, I sometimes advise them to seek alternative dispute resolution, such as mediation or arbitration. These informal approaches often achieve more satisfactory results and are more efficient with respect to time and cost.

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The (Mythical) Paperless Law Office?

Posted in: "All, Business Development, Legal Aid Ontario by Admin | No Comments Wednesday, April 22, 2009

Today is Earth Day. In celebration of the occasion, I’d like to talk about the idea of the paperless law office.

Lawyers are notorious paper-consumers. While some may call the seemingly insatiable consumption of paper an occupational hazard, I think otherwise.

It’s true that necessities dictate the use of paper. For example, all court forms in the Superior Court, to my knowledge, require that paper copies be filed over the counter.

Besides the required forms, lawyers file facta (brief summaries of the facts and the applicable laws), books of authority, conference briefs, affidavits (sworn evidence), motions, and correspondences. These documents often come in multiple copies – one for each party involved, one for the court, one for the file, and one for the client. As a result, the consumption of paper often gets out of control.

Aside from the court filing requirements, lawyers consume even more paper through the day-to-day operations of our law practices.

For example, for routine correspondences, we often print multiple drafts before the final correspondence is printed, signed, and faxed or mailed. While most lawyers do have access to secured email accounts, few lawyers (correct me if I’m wrong) utilize email as the main method of communication, particularly when dealing with contested matters.

But do letters coming from the fax machine or even the courier carry more weight? I think not.

I believe that excessive use of paper-based communication more likely stems from habit. Senior lawyers with decades of experience are accustomed to paper-based correspondences, and therefore many law offices are run that way. As time go by, a new generation of lawyers who are more comfortable with virtual technologies may do things differently.

Before law offices can become truly paperless (I suspect we still have a long way to go), there a’re certainly ways to run a law office in a more earth-friendly fashion. For instance, Legal Aid Ontario now accepts and encourages online billing, while accounting software is replacing the paper-and-pen bookkeeping systems in law offices across the country.

Happy Earth Day!

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Legal Aid Ontario Year End Celebration!

Posted in: "All, Business Development, Legal Aid Ontario by Admin | No Comments Tuesday, March 31, 2009

The fiscal year of Legal Aid Ontario (LAO) runs from April 1 to March 31 of the next year. Today marks the year end of year 2008-09, and many Legal Aid practitioners have good reasons to celebrate.

Lately LAO has been dragging its heels in processing accounts where dicstretionary increase requests. According to the billing manual, discretionary increases are supposed to be processed within 60 days. However, there have been major delays – accounts were only processed after some 90 days. My friend Jack has an account submitted in mid December 08 and still hasn’t received a dime.

We suspect it’s because LAO is running out of the allocated funds for discretionary increase towards the year end.

While this sounds whiny, there are merits to my complaint here. It costs a lot of money to litigate (where most of my cases lie) – court filing fees, process server charges, medical reports, transcriptions, audio and video records, requisition of third-party documents, photographs, fax, photocopies, witness fees, expert witnesses, courier fees, etc. – it all adds up. For big cases, these  costs (what we call “disbursements”) can be greater than the lawyer’s fees, especially when several expert witnesses are involved.

Under the terms of LAO, lawyers are required to pay the disbursement charges up front and subsequently bill to LAO for reimbursement. For small firms without large cash reserves, this adds to the cost of operation. Many small firms are thus forced to take on commercial loans in order to keep the business running.

With the new fiscal year starting tomorrow, I hope LAO can be more efficient in dealing with accounts with discretionary increases, so we LAO practitioners don’t have to worry about ballooming our debts.

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Trust Money & Interest

Posted in: "All, Legal Aid Ontario by Admin | No Comments Wednesday, January 21, 2009

Lawyers generally ask for retainer money before they start working on their clients’ cases. The retainer money, by law, is placed into a trust account and can only be withdrawn upon the delivery of the accounts.

Occasionally, I encounter clients half-jokingly saying, “Look at the interests you make off my deposits!” Alas, it isn’t so.

Under the Law Society Act, when opening a trust account, the lawyer must direct the financial institution (usually a bank, but it can be a credit union or a provincial saving office) that all interests earned on the trust account be paid to the Law Foundation of Ontario.+ (75% of the Law Foundation’s revenue funds Legal Aid Ontario.)

Lawyers are required to file an annual report on the interests earned from the trust account and certify that the interest has been paid to the Law Foundation.

Beyond the traditional retainer-trust money, lawyers are sometimes asked to hold various properties in trust in client-specific trust accounts, or safety-deposit boxes. The properties being held may include trust funds, stocks, shares, jewellriy, art, or real estates. Any appreciation in value of the property accrued in this case belongs to the client, not the lawyer.

Next time you’re asked to pay retainer money in trust, perhaps you can find solace in knowing that you’re making a contribution to the Law Foundation and Legal Aid Ontario.

+For more information about the Law Foundation, please visit their website: www.lawfoundation.on.ca

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Legal Aid Ontario: the Missing Manual

Posted in: "All, Administrative Law, Family Law, Legal Aid Ontario by Admin | No Comments Thursday, January 15, 2009

Many of my clients are funded by Legal Aid Ontario (LAO). However, few of them have an accurate idea of how Legal Aid actually works.

For criminal defence matters, Legal Aid help is available only when there is a possibility of imprisonment. For civil matters, LAO funding is generally limited to administrative law appeals, family law issues where children’s custody or paternal access is in dispute, or residential housing issues where one’s tenancy is in jeopardy. LAO assistance may also be available for refugee and immigration claims.

Since I don’t deal with immigration, refugees, or criminal matters, I’ll focus today’s blog on LAO-assisted civil proceedings.

Typically, once you’re approved for LAO eligibility, you’ll be issued a certificate for an opinion letter regarding to the merits of your case. At this stage, the lawyer of your choice is only allowed to investigate your case and write a reporting letter to LAO.

Hence, if you go to see a lawyer with an opinion letter certificate, and your case is due in court the next day, the lawyer will likely be unable to assist you in any substantive way. (This happens more often than you’d think.) Rather, the lawyer may only send the court a letter indicating that he or she has not been authorized by LAO to represent you. Depending on the circumstances, the court may or may not allow an adjournment.

After the opinion letter has been delivered to LAO, the staff lawyer or the area director will evaluate your case and decide whether to grant additional authorization for the lawyer to proceed to represent you. This may take several business days.

The lawyer will only be allowed to take on your case fully when he or she receives the additional authorization.

Keep in mind that LAO certificates are matter-specific. In other words, the certificate is only valid for the matter described within. Once the matter has been concluded, you’ll need to get a new certificate for any other legal service you may require, such as an appeal.

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Lawyers and the GST

Posted in: "All, Business Development, Legal Aid Ontario by Admin | 1 Comment Monday, December 22, 2008

The Goods and Services Tax, or the GST, is confusing, even to lawyers. If you look at my retainer agreement, it states, “You will be charged GST on all fees and some disbursements.” But exactly when GST is payable remains a mystery to most of my clients.

Rules for the GST are complicated and highly technical.  In broad strokes, GST is payable on the supply of most goods and services in Canada. (New Brunswick, Nova Scotia and Newfoundland and Labrador adopted a different form of tax, called HST.)

Merchants are required to collect GST on most sales and pay GST on most purchases they make to operate their businesses. They may then claim a credit to recover the GST they paid in the course of these commercial activities. (Note the qualifiers in the above paragraphs, may and most)

When is GST payable for legal services?

In Ontario, lawyers who have a GST number are required to collect GST on legal services performed. Although the Canada Revenue Agency (CRA) provides GST exemption on legal aid plans, it is not applicable in Ontario.* (Interestingly, Legal Aid Ontario pays GST on all fees and disbursements, regardless of the CRA’s policy described below.)

With respect to disbursements (out-of-pocket expenses), whether GST is exigible (meaning collectible) depends on whether the expenses were incurred as an agent of a client. If the expense in question has been incurred by the lawyer in the capacity as an agent of the client, no GST is exigible. If it has not, the GST is collectible.

According to the CRA, the following expenses are generally not GST-exigible:+

  • Government filing fees or registration fees for real estate transactions
  • Government application fees (such as building permits, zoning permits)
  • Court filing fees incurred to initiate a proceeding
  • Government fees to create or maintain a business entity (such as incorporation)
  • Writ of Possession Fees (eviction fees)

GST is generally exigible on the following disbursements because they are not incurred as an agent:

  • Telephone charges
  • Photocopy charges
  • Courier costs
  • Costs for travel by the lawyer (or others working on a client’s file)
  • Postage
  • Search fees
  • Witness fees
  • Fees for transcriptions or recordings

The lists above are by no means exhaustive. Readers should consult a lawyer prior to relying on the contents of this blog.

*See “GST/HST Memoranda Series Chapter 5-3, Legal Aid Services,” Canada Revenue Agency (May 1995), online:www.cra-arc.gc.ca/E/pub/gm/5-3/5-3-e.html

+ see “GST/HST Policy Statement P-209R – Lawyers’ disbursements,” Canada Revenue Agency (July 7, 2004), online: www.cra-arc.gc.ca/E/pub/gl/p-209r/p-209r-e.html

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Legal Aid Ontario: Cost and Contributions

Posted in: "All, Administrative Law, Family Law, Legal Aid Ontario by Admin | No Comments Thursday, November 6, 2008

Most people think Legal Aid Ontario (LAO) is “free,” in the sense that clients with Legal Aid Certificates do not pay the legal fees out of their own pockets.

However, there are several exceptions to this rule. LAO routinely recovers costs and contributions from clients with contribution agreements, property liens, and settlement funds.

For clients whose income is higher than the financial eligibility, LAO from time to time issues Certificates with contribution agreements. The lawyer accepting the certificate will perform the services at the prescribed rate and collect money from LAO. At the same time, the client agrees to pay back part or all of the lawyer’s bill through a payment plan. This is a win-win situation in the sense that LAO can recover the cost and be accountable for the taxpayers’ money, while the clients are able to proceed with their matters expediently.

If a client meets the financial eligibility requirement on his or her income but owns real property, LAO may require the client to agree to a lien on the property. This lien is authorized by the statute. The client may remove the lien by paying back the amount owing to LAO, or LAO may recover the amount throughthe lien when the property is sold or transferred.

With respect to settlement funds by law LAO is entitled to recover part or all of the cost if the matter is settled and the client receives settlement funds. Hence, most settlement funds are paid to the lawyer handling the case in trust.

In some cases LAO may consider a waiver to recovery. These cases are rare. Generally, LAO will only waive the statutory charges against the client if failure to do so will cause hardship. As such, clients with a contribution agreement or a property lien are generally not qualified.

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