Proposed Rules Under the Legal Aid Services Act, 2020: Impact on Community Legal Clinics

In July 2020, the Ontario Legislative Assembly enacted new legislation governing the provision of legal aid in the province, Legal Aid Services Act, 2020 (“2020 Act”). The legislation does not come into force until it has been proclaimed by the Lieutenant-Governor and that won’t happen until new rules have been finalized. The board of Legal Aid Ontario (LAO) (called “the Corporation” under the 2020 Act) has the authority under section 46 of the 2020 Act to make rules governing the provision of legal aid. The proposed rules are currently available for comment on Legal Aid Ontario’s website (more on that later). Here I comment on the new rules and their relationship to the 2020 Act as they apply to community legal clinics.

[Disclosure: I’m a member of the Friends of the Community Legal Clinics, established in 2011. The Friends is a volunteer group of individuals who have had different relationships with community clinics and access to justice over some thirty years. I express my own views here, however, and do not purport to represent the views of the Friends.]

My focus here is on the proposed rules that appear to have particular applicability to the role community legal clinics play in the provision of legal services and beyond that, to access to justice. The network of clinics across Ontario are linked to the communities they serve and it is therefore crucial that they are informed about the needs of those communities and that they have the tools available to deliver the services required in the most appropriate form. The objectives of the clinic system go beyond individual service, although that is crucial, to recognizing and responding to systemic issues that affect persons living in poverty.

I address only some of the rules; however, other rules also have implications for the significant reputation and grounding that clinics have in the provision of legal services.

I approach the rules by considering how well they support and enhance the fundamental principles underlying and the foundation of the community legal clinics: their connection to the communities they serve by virtue of their boards of directors and the work they undertake. The proposed rules need to be considered in light of the 2020 Act and the extent to which its provisions are incompatible with the general tenor of the 1998 Act where the latter addresses community legal clinics. To what extent do the rules reflect the spirit with which the community clinics were created and which is reflected in the contributions the clinics have made to date.

Before dealing with the rules themselves, I discuss briefly the history of the clinics and compare the treatment of clinics in the Legal Aid Services Act, 1998 (“1998 Act”) and the 2020 Act to provide some context for my consideration of the rules.

Parkdale Community Legal Services was established in 1971 at the impetus of Osgoode Hall Law School, but it was not until 1976 that the (then) Law Society of Upper Canada established a committee to address legal clinics, when 7 clinics were created, some 25 years after the first legal aid plan had been created. (For a history of legal aid in Ontario, see here.) The number of clinics expanded quickly after that and there are now over 70 community legal clinics in Ontario, some general in specified geographic areas, and some specialized (for a complete list, see here). Specialized clinics focus on particular groups of people or particular areas of law (such as the Advocacy Centre for the Elderly or ACE, Black Legal Action Centre, Centre for Spanish-Speaking Peoples, Advocacy Centre for Tenants Ontario and the Canadian Environmental Law Association, among others) or provide support rather than direct services (Community Legal Education Ontario or the Income Security Advocacy Centre).

Community clinics bring a particular perspective to poverty law, which was and remains their mandate. Former Attorney General and Chief Justice of Ontario Roy McMurtry’s statement in the 1980s about why clinics matter is still true:

The clinics are in a position to take the law to those who need it most. It is almost trite to point out that a great many poor people have never been made aware of the rights they enjoy under our laws…. The clinics, located in, and run by, local communities, can reach out to advise people of their rights. They take the law to the people…. In doing all of this, the clinics help convince the poor that they have a stake in this society…. (emphasis added by MJM) (quoted in Mary Jane Mossman’s “Short History of Legal Aid in Ontario” (2014)

The focus of the clinics is poverty law and they are experts in a wide range of legal areas that particularly affect low-income persons, who might be living in poverty or which have an adverse impact on low-income people who might live in poverty: housing, human rights, employment, income support, worker injuries, domestic abuse and others. As the executive director of the Association of Community Legal Clinics of Ontario has explained, “Clients of legal clinics are disproportionately those living with physical and mental disabilities, single mothers, recent immigrants, people of colour, the elderly, victims of abuse and torture and other historically disadvantaged groups.” (See here.) This emphasis on poverty law, according to the Ontario Legal Aid Review (1997), available on the Ministry of the Attorney General’s website, resulted from a deal made with the (then) Law Society of Upper Canada that they would not oppose provincial funding of clinics if the clinics offered “poverty law” services in order to protect the private bar (see here).

The clinic system recognizes that access to justice requires more than access to the legal system; access to justice requires an understanding of how communities relate to and are affected by the legal system and the broad nature of the responses to access, for example, courts or tribunals, to being able to access “justice”. “Justice” recognizes their particular relationship not only to the legal system, but also to the barriers that challenge their participation in society more fully. It also acknowledges that people located differently in society need different approaches to and solutions from the law.

How the goal of legal aid is framed, therefore, is important. The 1998 Act referred to “promot[ing] access to justice throughout Ontario for low-income individuals” by, among other means, “encouraging and facilitating flexibility and innovation in the provision of legal aid services, while recognizing … clinics as the foundation for the provision of legal aid services in the area of clinic law” and “identifying, assessing and recognizing the diverse legal needs of low-income individuals and of disadvantaged communities in Ontario” (1998 Act, s. 1)

The purpose of the 2020 Act is far more succinct: “The purpose of this Act is to facilitate the establishment of a flexible and sustainable legal aid system that provides effective and high-quality legal aid services throughout Ontario in a client-focused and accountable manner while ensuring value for money.” (S.1) This language may not seem so different from that in the 1998 Act, but it makes no reference to access to justice or to “low-income” individuals” in the fundamental statement of purpose. However, it is more specific in section 17(2):

That legal aid services should,
i. promote access to justice,
ii. be efficient, effective and high-quality,
iii. be provided in a client-focused, innovative, transparent and accountable manner,
iv. be responsive to the needs of low-income individuals and disadvantaged communities in Ontario,
v. promote early resolution, where appropriate, and
vi. be co-ordinated with other aspects of the justice system and with community services. (2020 Act, s.17(2))

The 1998 Act provided a definition of clinic in section 2 as follows: “clinic” means “an independent community organization structured as a corporation without share capital that provides legal aid services to the community it serves on a basis other than fee for service” (emphasis added). Section 46(1)(c)(i), LAO’s board may make a rule determining how it will pay “service providers”, which include community legal clinics, “including by the payment of hourly rates or block fees or by the provision of funding for a specified period of time”. (Note that the 1998 Act also provided for a “clinic committee”. Importantly, the 1998 Act specified areas of law in which clinics were to engage, without its being an exhaustive list: “housing and shelter, income maintenance, social assistance and other similar government programs, and “human rights, health, employment and education” by identifying them as “clinic law” (1998 Act, s.2). The LAO board is required to establish advisory committees , including one in clinic law (1998 Act, s.7(1), (LAO was to determine the composition and functions of these advisory committees), as well as another clinic committee), the functions of which were to

(a) recommend policies and guidelines to the board in respect of the Corporation’s [LAO’s] funding of clinics;
(b) recommend standards to the board for the operation of clinics;
(c) make decisions with respect to applications by clinics for funding and reconsider such decisions made by it or by an officer or employee of the Corporation. (1998 Act, s.8(4))

The 2020 Act does not define these terms under section 2, the definition section. It does, however, define “community legal clinic” for the purpose of section 5, which explains the services provided by legal aid and the way in which they are provided. Section 5(1) defines “community legal clinic” as follows, with important references to community:

“community legal clinic” means a community legal organization that is structured as an independent corporation without share capital whose members of its board of directors are members of the community or communities it serves or are persons who have a substantial association with or interest in the community or communities it serves; … (emphasis added)

Under the 2020 Act, clinics are not defined in part by their offering services on a basis “other than fee for service”. Failing to protect this arrangement under the 2020 Act risks undermining the relationship between clinics and their clients.

Section 14(3) of the 1998 Act stated, “The Corporation shall provide legal aid services in the area of clinic law having regard to the fact that clinics are the foundation for the provision of legal aid services in that area.” Similarly, section 5(5) of the 2020 Act recognizes the role of community legal clinics in providing “poverty law” services:

In determining how to provide legal aid services in the area of poverty law within the meaning of paragraph 3 of section 4, the Corporation shall have regard to,

(a) the foundational role of community legal clinics in providing services in that area of law;

(b) determinations by community legal clinics of the legal needs of the communities they serve in that area of law; and

(c) any other information on the legal needs of communities served by community legal clinics in that area of law that is provided or made available to the Corporation.

The 2020 Act defines “poverty law” as “being law in relation to matters that particularly affect low-income individuals, including housing and shelter, income maintenance and social assistance” (Part 4(3)). Although this definition is not exhaustive, the 2020 Act identifies other areas of law that might be considered as falling within “poverty law” and were included in “clinic law” in the 1998 Act, separately: human rights law, health law, employment law, immigration and refugee law; this raises the question of whether they are “clinic law” or “poverty law”. Clinics, therefore, no longer have an area of law that is recognized as being within their distinct purview, that is, “clinic law”, but are associated with an area of law, “poverty law”, an area that is certainly part of the clinics’ mandate, but that that by its name could be undertaken by others. Furthermore, certain areas of law that were within the parameters of “clinic law” are now outside the replacement for “clinic law”, that is, “poverty law”.

In determining areas covered by legal aid or the manner in which it is provided LAO is to take several factors into account, including “the needs, as determined by the Corporation, of individuals and communities in Ontario for legal aid services, including Indigenous individuals and communities and Francophone individuals and communities”, but it does not refer to other communities, such as racialized communities (2020 Act, s.6). Community legal clinics are to determine the legal needs “of the communities they serve” in the area of poverty law (2020 Act, s.5(5)), but not necessarily the other areas of law that were included under “clinic law” in the 1998 Act.

The 2020 Act provides that LAO may provide services it considers appropriate, including those under section 3 and provide services in the areas listed in section 4. However, under section 47(2) of the 2020 Act, the Minister also has authority to make regulations that would supercede LAO’s authority under sections 3 and 4, compared to the 1998 Act, which did not give the Minister power to make any regulations.

Thus the Minister may make regulations that “sett[] out legal or other related services that, despite section 4, the Corporation may or must provide under this Act, and which may be subject to any specified conditions, exceptions or circumstances, other than legal aid services that must be provided under section 15”.

Section 4 refers to criminal and family law and with particular resonance for clinics “Poverty law, being law in relation to matters that particularly affect low-income individuals, including housing and shelter, income maintenance and social assistance”, as well as child protection law, human rights law, health law, including mental health law, employment law, education law, and immigration and refugee law. I note, too, that the Minister may also make regulations with regard to the type of services, although they are listed under section 4 of the 2020 Act; these include public legal information and education.

The Minister may also “define[], for the purposes of this Act, any word or expression used in section 4 that has not already been expressly defined in this Act”. Except for “poverty law”, all the areas of law under section 4 are undefined.

Part 1 of the proposed LAO rules includes the definitions applicable to the rules. Here there is a new term, “entity service provider”, which does not appear in the 2020 Act. Rule 6 applies to “entity service providers”. (Rule 6 identifies sections as “ESP #.)

Section 1 of Part I (the definitions) provides that an “entity service provider” is “an entity that is a party to a service agreement”. “Entity services” refers to “legal aid services provided by an entity services provider” (s.1). Entity service providers have no distinct identity, such as a community legal clinic, but are amorphic, a means by which legal services are delivered. They also appear to have no existence if they are not a party to a service agreement. This no doubt makes it easier for LAO to think about how to structure funding agreements, but it masks the distinctive qualities of particular classes of “entity service providers”.

Under Rule 6’s ESP 1, legal clinics and similar organizations are encompassed by the term “entity service provider”: thus “community legal clinic” is “a community legal clinic that is an entity service provider”. The same is true of “Indigenous legal services organization” and “student legal services organization” (for convenience, I include these in “community legal clinic” unless I specify otherwise). Again, the meaning attributed to a clinic is that it is a party to an agreement. Here and under section 1 of Part I, the rules might be said to be inconsistent with the 2020 Act, which does give community clinics an independent definition and thus existence and, importantly, relates the concept of community clinic to the community it serves, although even it subsumes community clinics within the larger “community legal organization” (2020 Act, s.5(1)).

ESP 2(1) contemplates “providing new or additional entity services” (and may request entities to make applications or publish a call for applications from entities). Applications are to include specified information; in addition, if the entity involved is a community legal clinic, it must also provide a “service proposal” (describing the entity services it anticipates providing, along with details about the provision of the services as required by ESP 6). Provision is also made under ESP 5 for a new service agreements with an existing entity service provider when the current agreement expires, if LAO wishes to enter into a new agreement; the entity service provider must submit a service proposal, which conforms to the requirements under ESP 6.

LAO may include terms and conditions in the agreements with entity service providers beyond those under ESP 4, which are included in every agreement and, if the entity “is to provide services as a community legal clinic”, terms relating to the use of support services provided by LAO under ESP 15. The term of service agreements for community legal clinics will be three years as long as the LAO considers the community legal clinics “risk level” is low” (ESP 3(6)).

The difficulty here, although it is not a new one, is that community clinics, which are not simply organizations delivering services (not simply an “entity service provider”) is that community clinics do not exist in isolation, but in a sense, they exist within a community, whether that is a geographical community, perhaps (for example) highly racialized, or whether that is a community with particular characteristics (older adults, Indigenous peoples, persons living with disabilities, southeast Asian identity). While it should not be expected that funding is guaranteed, a presumption of continued funding, subject to meeting certain criteria would be more reflective of the particular nature of community clinics.

This funding limitation is enhanced by ESP 10(1), which requires LAO to determine the amount of funding “to provide to an entity service provider for each year of the term of its service agreement”. The entity service provider must provide a service proposal for the year and will be given funding based on criteria set out under ESP 10(2). Again, for community legal clinics, this will include whether and to what extent they have used support services under ESP 15 (see below). A very limited basis for review is available when the amount for one year is less than for the previous year (ESP 10(3)). LAO may reduce an entity’s funding within the term of the agreement if the entity’s ability to provide services is affected by an amendment to the Act or regulations, a change in the funding LAO receives or LAO changes its priorities (ESP 10(4)).

Under ESP 15, LAO may provide support services to community legal clinics (or Indigenous legal services) to reduce the cost to the clinic of providing those services. However, the cost of these services will be taken into account in determining the funding to the clinics, rather than seeing support services as enhancing the value of the work the clinics perform as part of the larger legal aid program or which might be helpful to more than one clinic (or, indeed, to many).

Community legal clinics are required to prepare 12 codes of conduct or procedures and policies as specified under ESP 8(3). There may be some value to this, although this entails a great deal of work, and there may be value in developing common codes of conduct or procedures, with a recognition that in some cases, they will be particularized. What is missing from these codes, though, is a policy committing a clinic to be responsive to the communities it represents and, more broadly, to be inclusive in its work, as well as some indication of how it will do this. It is worth noting that ESP 8(4) requires a community clinic will ensure its “board of directors reflects the diversity of the community it serves, including, without limitation, in relation to race, ethnicity, language, age or physical disability” (it is not clear why disability is limited in this way), but the rules do not contain a provision analogous to ESP 14 that requires a clinic in an area designated under the French Language Services Act to take certain steps, that would apply to the groups identified in relation to the board of directors, among others. It is important in appreciating the scope of the community legal clinics’ work for purposes of measurement and funding that their work in responding to the nature of their communities be counted.

The appreciation of an intersecting concept of disadvantage was recognized early on in the work of the Parkdale Community Legal Services. In her history of the first 25 years of Parkdale, Shelley Gavigan writes about how students at Parkdale worked with clients who bring different dimensions of their lives:

For example, Parkdale students are urged to think through the relational nature of the inequalities they encounter in the client and community work: the majority of the clinic’s clients are women. In the workers’ rights group, for instance, students meet women who are domestic workers, undocumented workers, workers who have been subjected to sexual harassment, and whose only access to employment rights is via the mechanisms of employment standards legislation. At PCLS, one is able to articulate that women’s rights are workers’ rights.

Our students meet violence against women in an unmediated way. They meet battered women. They learn to identify and analyze the particular vulnerability of the battered immigrant woman whose husband threatens to withdraw his sponsorship if she complains or leaves. (Gavigan, 465 [citations omitted])

Gavigan’s history was published in 1997 and only begins to scratch the surface of how multidimensional identities affects clients’ experience with society’s benefits. Some additional 25 years later, the relationship between poverty, identities and the need for particular kinds of clinic work has only become more fundamental to the clinics and, while acknowledged to some extent in the rules, is not fully appreciated for the contribution this approach makes to the work of the community clinics.

Without exhausting the issues that might be raised in relation to LAO’s rules under the 2020 Act, there is one more that should be explicitly identified: clinics provide some services that resemble traditional services when they represent clients in court or before tribunals or perform other related services; however, they go beyond that. Often they see the benefit in addressing a problem systematically rather than individually and thus engage in law reform; given their connections to communities, they also engage in community development; one clinic in particular has as its mandate public legal education and information (public legal education and information is listed as a legal aid service under section 3 of the 2020 Act). These activities should be recognized as inherent in community clinics’ mandates and thereby taken into account in any future developments (such as assessing performance) and should be referred to in the rules. It should be beyond dispute that these are community legal clinic activities.

Community legal clinics have made a distinctive contribution to poverty law in Ontario that risks being undermined by the proposed LAO rules at a time when the need for expert, community-centred work has become even more indispensable.

http://www.slaw.ca/2021/05/04/proposed-rules-under-the-legal-aid-services-act-2020-impact-on-community-legal-clinics/

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