An Analysis of Poverty Law Services in Canada

Part One: Poverty law legal aid services (continued)

Part One: Poverty law legal aid services (continued)

Ontario

Structure of legal aid

Delivery of services

In April 1999, Legal Aid Ontario (LAO) replaced the Law Society of Upper Canada as the governor of legal aid. Legal aid services are delivered through a network of area offices, private bar lawyers, and community legal clinics. Both private bar lawyers and staff lawyers at area offices (including the Family Law Office and the Refugee Law Office) operate on a certificate basis.

As of June 2002, Ontario has a network of 79 community legal clinics (CLCs), located throughout the province, specifically designed to address the unique legal needs of low-income people. The staff lawyers and community legal workers at these clinics deliver the vast majority of poverty law services (in matters including social assistance, housing, Employment Insurance, Canada Pension Plan, employment, workers' compensation, and human rights cases). Some clinics are also affiliated with law schools, and rely on law students to assist in the provision of services as part of their course work. As per the recommendations of the 1997 Review of Legal Aid in Ontario (the McCamus Report) review, the CLC network is being expanded towards the goal of ensuring that every region of the province has access to clinic services.

Although CLCs are funded by legal aid, they are governed by independent, community-based boards of directors. Each board is responsible for deciding the priorities and services areas for each particular clinic - a system that yields some unevenness in coverage across the province. Each clinic also serves a particular geographic area. Clinics generally assist only clients from within their area, although clients from other locations may be taken on if they present the opportunity of an interesting test case, or in other unusual circumstances. In addition to this geographically based system are the 15 specialty clinics that deal with the laws affecting particular groups of people (e.g., the disabled, the elderly). Specialty clinics serve all members of their particular client group, regardless of location, and also act as a resource to other clinics, private bar lawyers, community agencies, and others.

Eligibility for legal aid

Eligibility for legal aid is determined on the basis of financial and merit criteria. Legal aid applicants are required to undergo a financial assessment, which includes an asset test and an income test. In most cases, clients receiving social assistance or with similarly low incomes are eligible for legal aid subject to asset limitations.

The income test considers all sources of income for the applicant and any dependent children, common-law partners, same-sex partners, or spouses. This includes workers' compensation, employment, Employment Insurance, pensions, social assistance, commissions, self-employed earnings, child tax benefits, rental properties, and so on. In determining net income, payroll deductions, child care, and child support payments can be used against gross income. All necessary household expenditures are included in evaluations of expenses: food, clothing, transportation, telephone, cable service, debts, and personal expenses. A basic allowance - or flat rate of money for an applicant based on family size and type of shelter - is established according to this evaluation. Some additional expenses may be allowed if Legal Aid Ontario determines that they are necessary for health or well-being.

Liquid assets are also considered in assessment of financial eligibility. In some cases, all assets may be considered available for legal fees; in others, applicants may be permitted to keep some assets according to the following system:

Family Size Allowable Assets
1 $1,000
2 $1,500
3+ $2,000

Source: Legal Aid Ontario Web site - Getting Legal Help.

Any assets held by a legal aid applicant in excess of these amounts are considered available for legal fees.

For poverty law matters, merit testing considers the following factors:

Types of services provided for poverty law matters

The following chart describes the types of services available for poverty law matters in Ontario. Each of these service types is explored in more detail below, including in charts presenting the data collected from legal aid respondents for the purposes of this project. The data provided includes the number of summary advice, brief service, and full representation cases handled by Community Legal Clinics in the 2000 calendar year in a variety of poverty law matters. No data was provided on the limited number of poverty law matters handled through other legal aid offices, or on the characteristics of poverty law clients other than sex (legal aid does not track the age, immigration status, ethnicity or language of clients). Refusals of service for coverage and the reasons for them are also not tracked for any area of legal aid service provision. Overall cost figures for all CLC activities, as well as for legal representation case files in the poverty law area, are also included. No cost breakdowns by individual poverty law issue are available.

Type of Service Provision of this Service
General advice or assistance Yes. Community Legal Clinics (CLCs) provide basic information and summary advice as well as referrals to other organizations.
Legal advice or assistance Yes. CLCs provide brief service assistance to poverty law clients.
Legal Representation Yes. Most legal representation in poverty law matters is handled through CLCs.
Public Legal Education Yes. Public legal education is provided mostly through the CLCs and Community Legal Education Ontario (CLEO).
The Community Legal Clinic program

As noted in the above chart, CLCs are the primary sites for the provision of advice, legal representation, and public legal education in poverty law matters. Before discussing each one of these service areas individually and presenting available data on clients and costs, the following summary information on the CLC program is provided.

In 1999-2000, clinic program expenses totalled $38,259,000, or 17.3 percent of all expenses incurred by Legal Aid Ontario. These expenses were distributed across the Community Legal Clinic services listed in the chart below. As is also indicated in this chart, public legal education and summary legal advice/brief services are the key areas of service provision for CLCs, with legal representation being a much smaller component of their work.

Community Legal Clinic Service Profile, 1999
Community Legal Clinic Services Number of People Assisted
Legal advice/brief services 116,162
Referrals 54,209
Case files opened (legal representation) 15,381
Public legal education materials distributed 1,290,596
Law reform files opened 483
Community development files opened 841

Source: Legal Aid Ontario 2000-2001 Annual Report.

CLCs employ staff lawyers, community legal workers and support staff. Some clinic offices also have additional staff whose titles are not specified. As of June 2002, a total of 193 staff lawyers, 119 community legal workers, 138.8 support staff, and 25 other staff were employed by Ontario's network of CLCs.

Given that CLCs are the primary sites for the delivery of poverty law services, available data on the sex of poverty law clients principally refers to clinic cases. Gender is the only client characteristic on which data is kept, and respondents reported that even these numbers may not be entirely accurate, because this section of a case report is not always completed. Based on available data, however, it is estimated that 53 percent of poverty law clients in the 2000 calendar year were women, and 47 percent were men. As noted above, Legal Aid Ontario does not collect data on the age, immigration status, ethnicity or language of any of its clients

Advice

The advice available to legal aid clients in poverty law or other issues is provided by staff at CLCs, including staff lawyers, community legal workers and law students. Advice is provided by CLCs through two channels: summary legal advice and brief services.

Summary legal advice generally refers to cases in which advice is given to a client with no follow-up (for example, no extensive research, no telephone calls to third parties). The advice provided is usually expected to take half an hour or less, and may take the form of a telephone conversation or brief consultation.

Brief services are defined as either (i) advice or assistance involving a significant amount of time (more than half an hour but less than two hours); or (ii) some minimal advocacy undertaken on the client's behalf. If the matter requires more than two hours of assistance, normally a legal representation case file will be opened. The following kinds of activities would usually be recorded as brief services when they require more than half an hour of staff time: helping to complete a self-help kit, creating a simple affidavit, writing a letter or making some telephone calls to advocate for a client, representation as duty counsel (where duty counsel actually represents the client before a court/tribunal or negotiates a settlement), and research so as to provide advice to a client. In brief service cases, CLCs are expected to evaluate whether it would be appropriate to apply the financial eligibility guidelines. These guidelines must be applied if there are any disbursement expenditures on a brief service matter.

Summary Legal Advice and Brief Service Cases by Type of Legal Issues, 2000
Poverty Law Issue Summary Legal Advice Number of Brief Service
Number Percent Number Percent
Housing 41,117 40 7,355 27
Welfare Assistance 6,695 7 1,192 4
Family Benefits 11,698 11 2,411 9
VRS-COMSOC 2 0 0 0
Other Income Maintenance1.*   7,437 7 1,319 5
EI 1,187 1 196 0.7
CPP/OAS 2,291 2 439 2
General Administrative1.# 3,370 3 9,090 34
Immigration/Citizenship 4,501 4 760 3
Employment 2,737 3 246 1
Public Services1.$ 394 0 144 1
Health Care 1,485 1 431 2
Correctional Law 1,101 1 97 0
Human Rights 459 0 293 1
Aboriginal Rights 159 0 135 1
Child Welfare 233 0 32 0
Criminal 1,796 2 219 1
Family 5,059 5 351 1
Environmental 1,060 1 1,352 5
Other 11,755 11 1,360 5
Violence 424 0 139 1
TOTAL 101,482 - 26,926 -

Source: Data collection charts for Ontario, the Ontario Legal Clinics Activity by Case Type Report January 1, 2000-December 31, 2000, and the author's calculations.

As the above chart makes clear, housing is by far the largest area in which CLCs provide summary advice, followed distantly by family benefits and income-related issues (welfare, other income maintenance). With respect to brief services, housing is the second largest area for clinic activities, with general administrative law constituting the largest area for this type of assistance.

In 2000, summary legal advice constituted 69 percent of the work done by CLCs, brief services 19 percent, and case files just 12 percent. No specific data on the cost of the summary legal advice and/or brief services provided by CLCs was made available by Legal Aid Ontario respondents.

Representation

Legal representation case files are opened when the client is provided with ongoing representation, or when the advice/assistance provided exceeds two hours. Financial eligibility guidelines must be applied to these case files.

Legal representation for poverty law issues is primarily provided by CLC staff lawyers, community legal workers, and law students. Legal representation may also be provided by staff in legal aid area offices or, in rare cases, by private bar lawyers on a pro bono basis. This tends to be only when local clinics are overburdened, or when there is no clinic in the region to provide the assistance needed. The aim of the CLC expansion process recommended through the McCamus review is to eliminate the latter problem: as of December 2001, an additional five clinics had been opened, expanding services to seven areas of the province that were previously uncovered.

A small amount of poverty law service is provided on a certificate basis by private bar lawyers on a certificate basis. The vast majority of service in this area is provided by the CLC staff. CLCs operate through a flexible service delivery model: they maximize direct legal services by providing a range of assistance options and employing lawyers and other legal professionals. Accordingly, data on the legal representation provided through CLCs is recorded as the number of case files opened, whereas data on poverty law cases handled by staff lawyers at other legal aid offices is tracked through the certificate program.

Community Legal Clinic Case Files Opened, 2000
Legal Issue Number of Case Files Opened Percent of all CLC Case Files
Welfare Assistance 1,563 9.4
Housing 3,459 20.8
Family Benefits 6,100 36.7
VRS-COMSOC 0 0
Other Income Maintenance2.* 2,564 15.4
General Administrative2.# 122 0.8
Immigration/Citizenship 572 3.5
Employment 179 1.3
Public Services2.$ 42 0
Health Care 199 1.2
Correctional Law 487 3.0
Human Rights 101 0.6
Aboriginal Rights 70 0.4
Child Welfare 13 0
Criminal 88 0.7
Family 46 0.3
Environmental 12 0
Other 933 5.6
Violence 57 0.3
TOTAL 16,607 -

Source: Data collection charts for Ontario, the Ontario Legal Clinics Activity by Case Type Report January 1, 2000-December 31, 2000.

According to 2000-2001 data, the opening of case files constituted only 12 percent of the work performed by CLC staff. Between 1996-1997 and 1999-2000, however, there was a 9 percent increase in the number of clinic case files opened. The reasons for this increase are discussed in more detail below.

As indicated in the following chart, the number of poverty law cases handled on a certificate basis constitutes only a small percentage of the total number of certificates issued by Legal Aid Ontario.

Number of Certificates - Other Civil (Poverty) Law
Fiscal Year Number of Other Civil Certificates Percentage of All Certificates
1999-2000 6,621 6.2
1998-1999 5,684 5.6

Source: Legal Aid Ontario 2000-2001 Annual Report.

Between 1998-1999 and 1999-2000, there was a 17 percent increase in the number of other civil law certificates issued by LAO. According to the Legal Aid Ontario 2001-2002 Business Plan, demand for certificate-based legal representation in the poverty law area is increasing as the workload of CLCs increases, resulting in more referrals to the certificate side of legal aid. For example, between 1998-1999 and 1999-2000, the number of certificates pertaining to Social Benefits Tribunal matters increased by 110 percent, from 287 in 1998-1999 to 604 in 1999-2000. Increased demand for services at the CLC level is being fuelled by federal and provincial legislative changes that create a greater number of requests for legal assistance, as clients experience changing rules and entitlements. The nature of changes in the social assistance area has resulted in particular pressures. As reported in the Business Plan:

Decreases in social assistance under the Ontario Works Act have resulted in an increase in applications for higher benefits under the Ontario Disability Support Program Act, producing in turn an increase in appeals from Disability Support Program (ODSP) denials. Between June of 1998 (when the program began) and September 2000, approximately 26,000 persons have been admitted to the ODSP program (Legal Aid Ontario 2001-2002 Business Plan, Environmental Scan, p.8).

No specific cost data on the case files opened and completed by CLCs was provided by Legal Aid Ontario respondents. Only the following limited data on the cost of certificate activities in the poverty law area is available through the Annual Report. No breakdowns of cost information by type of poverty law issue are available.

Certificate Program Costs - Other Civil Law, 1999-2000
Certificate Fees Disbursement Costs Administration Fees TOTAL COST Average Cost per Case
$3,969,000 $721,000 $198,000 $4,888,000 $1,2023.*

3.* The average cost of all cases in all legal areas in 1999-2000 was $1,379.
Source: Legal Aid Ontario 2000-2001 Annual Report.

Public legal education

One respondent noted that the bulk of the public legal education work done through legal aid is carried out by CLCs and, most notably, Community Legal Education Ontario (CLEO).

Insofar as CLCs are the venue through which legal aid applicants and clients can receive summary advice and/or brief services, they are also a key point at which self-help and other literature is distributed. Clinics are also involved in hosting outreach and educational events in the community, often in co-operation with other organizations. Finally, CLCs participate in training events for front-line and advocacy workers, and community resource events that bring together a wide variety of service delivery organizations.

CLEO is a CLC that specializes in public legal education. CLEO staff includes lawyers, editors, support staff and a part-time librarian. Most of the publications produced through CLEO are targeted to people with low incomes and other disadvantaged groups, but they are also used by CLCs and community organizations. The goal of most materials is to describe the law as simply and clearly as possible to help people understand and exercise their legal rights. The majority of materials are booklets, fact sheets, pamphlets, and manuals, on topics including social assistance, landlord/tenant law, immigration and refugee law, workers' rights, family law, elder abuse, consumer rights, women's issues, and laws affecting young people. Most publications are available in French, and some are also available in other languages. Many can be accessed online through the CLEO Web site.

Strengths and challenges of the poverty law legal aid system

The following section presents respondents' comments concerning what is working well, what is not working well, and any key gaps within the current system for delivering poverty law services in Ontario.

Problem areas
Resource constraints versus demand for services

Three respondents pointed to the inability of the legal aid system to meet the demand for services in the poverty law area. One Legal Aid Ontario representative highlighted the fact that the number of cases has grown exponentially over the last several years, placing increased demands on the current legal aid framework. This respondent characterized the increase in demand as reaching "crisis proportions," particularly when viewed against the fact that the legal aid budget for the province is fixed, and may actually be scaled back in coming years. Ongoing efforts to develop services in the face of the sheer volume of need in the community raise questions about the ability to maintain current service levels, and the viability of the current service delivery structure.

Another legal aid staff member pointed to the implications of sharp increases in demand for services in the income assistance area. Faced with this growing clientele, CLCs are having to set priorities in terms of what they can and cannot cover. The result is that services are no longer available for some traditional areas of poverty law. Workers' safety is one area in which services have been discontinued by some clinics, given that there often are at least some other resources in the community for such matters. A CLC representative echoed this concern, noting that the range of services being offered at some clinics is becoming narrower as clinics face resource constraints. According to this respondent, the result is "more and more holes" in the poverty law system.

A final concern raised by a legal aid respondent is the financial pressure confronted by administrative tribunals, with the result that these bodies are sitting in fewer communities around the province. Without local access to these bodies, it is increasingly difficult for people to pursue their cases. Clients from Northern Ontario often lack the resources to travel to Toronto for a proceeding. Further, when tribunals are in session in a community, there is usually little flexibility in terms of the times available for cases. This raises difficulties for both clinic staff and clients if the available times for a hearing do not fit with their schedules.

Strengths and challenges of the poverty law legal aid system

Problem areas
Resource constraints versus demand for services

A CLC respondent noted particular pressures on coverage, as a result of the gaps created by the unevenness of the services available at individual clinic offices. When the geographic limitations of CLC service provision are combined with the fact that all clinics do not cover the same range of issues, the result is that people in need sometimes fall through the cracks. While many CLCs do try to assist people from outside their geographic region or areas of expertise (at least through the provision of summary advice), inconsistency in the availability of services remains an ongoing problem. A solution proposed by the CLC representative is the creation of a special certificate category for issues that would typically be covered by a clinic, but for which there is no appropriate clinic available. This certificate would permit a client to see a private bar lawyer for up to two hours of legal advice.

Related to the above comments are concerns raised by a different respondent about the regional variation in access to poverty law services, particularly in those areas of the province that lack CLC structures. The clinic expansion program will clearly go some distance towards alleviating this, but one respondent noted that there will remain parts of Ontario where small clinics are obliged to serve large geographic areas. Clinics do not have the funding at present to establish satellite offices in these kinds of circumstances, so problems around access to justice will continue. This is particularly the case in rural areas, where there is often little or no public transit.

Visibility of Community Legal Clinics

One respondent noted that CLCs have encountered difficulty in making their services visible in the community and ensuring that potential client groups are aware of the resources that are available. At present, most clinics do not do a lot of advertising or marketing, although staff often participate in outreach activities with other community agencies, thereby generating word-of-mouth referrals. This representative did note that one potential problem with increasing the profile of CLCs is that it may create expectations about the range of available services. If demand for legal assistance increases significantly, without any corresponding increase in funding, CLCs may then be placed in a difficult situation.

Success stories
Community-based approach to poverty law

According to two respondents, the community-based approach to the provision of poverty law services through the network of CLCs is a successful component of the legal aid system. The flexible approach to service delivery on which clinic staff rely, and the resulting range of assistance available to clients, goes a long way towards ensuring that people receive the help they need. As is reflected in data on the large number of people receiving basic assistance and/or advice, this is a very important aspect of CLC work that is not available through other legal aid structures.

In addition to the delivery of a wider range of services, a positive feature of the clinic system is the fact that they are rooted in the communities they serve. Each CLC is governed by an independent board of directors, with representation from the community. According to respondents, this ensures that clinics are able to set priorities consistent with local needs and values, to adapt to changing circumstances in their areas, and to provide direction for future services in a manner that suits community members. Insofar as these boards are composed of volunteers, there can be problems with recruitment and continuity, but the respondents suggested that these structures are working in the majority of locations.

Clinic expansion program

Related to the above comments concerning the effectiveness of the community-based approach to poverty law is one respondent’s comment that the expansion of the CLC network that is currently underway in Ontario is a positive development. Developing clinics in regions of the province that previously lacked such structures will clearly improve access to poverty law services and reduce geographic variations in available services.

Collaboration between area offices and CLCs

One respondent noted that, in the past, legal aid area offices were not always well informed about CLCs and the services they provide. Both Legal Aid Ontario and local offices have done a considerable amount of work in recent years to overcome this obstacle. According to this respondent, the result has been increased opportunities for collaboration and cross-referral.

Funding stability

According to one respondent, the stability of CLC funding is a positive feature of the current poverty law system in Ontario. Legal Aid Ontario provides funding for poverty law work while, at the same time, allowing CLCs to remain independent structures rooted in their local communities. Accordingly, CLC staff are not always obliged to be “looking over their shoulder,” but are generally free to determine where funding should best be spent, according to community conditions and needs.

However, one CLC respondent did note that there remains a frustrating amount of bureaucracy at Legal Aid Ontario with which clinic staff have to deal, particularly when requests made by the provincial organization are not consistent with local priorities. With respect to the CLC expansion process, for example, one CLC respondent noted that there is a certain amount of re-education that is continually happening on the part of clinic staff concerning “how things work” at the community level. For this representative, this is being played out in terms of decisions about physical space and equipment - why video cameras and sealed reception areas are not necessary in community-based offices, for example.