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CONSOLIDATED NEWFOUNDLAND AND LABRADOR REGULATION 1010/96

Legal Aid Regulations
under the
Legal Aid Act
(O.C. 96-165)

Amended by:

2001 c42 s45
2009 c31 s10a
88/15
2017 c10 s19

CONSOLIDATED NEWFOUNDLAND AND LABRADOR REGULATION 1010/96

Legal Aid Regulations
under the
Legal Aid Act
(O.C. 96-165)

Under the authority of section 67 of the Legal Aid Act and the Subordinate Legislation Revision and Consolidation Act , the Lieutenant-Governor in Council makes the following regulations.

REGULATIONS

Analysis


       
1.   Short title

       
2.   Definitions

              PART I
PROCEDURE

       
3.   Applications by residents of the province

       
4.   Applications by minors

       
5.   Applications for mentally incompetent persons

       
6.   Transfer to another area

       
7.   Applications considered and refused by area director

       
8.   Provincial director's approval required before refusal

       
9.   Determining financial eligibility

     
10.   Client's agreement re contribution

     
11.   Failure by client to sign agreement

     
12.   Withdrawal of application

     
13.   Notice of disposition by area director

     
14.   Notice of disposition by provincial director

     
15.   Previous assistance payments

     
16.   Previous social assistance payments

     
17.   Information additional to application

     
18.   Evaluation of appeal

     
19.   Provisional certificate

     
20.   Provincial director to dispose of application

     
21.   Applications by non-resident persons

     
22.   Applications by residents of another province

     
23.   Reciprocal agreements

     
24.   Issuing of provisional certificates

     
25.   Issuing of certificates

     
26.   Form of certificate

     
27.   Contents of certificate

     
28.   Delivery of certificate

     
29.   Panel solicitor's duty on receipt of certificate

     
30.   Where certificate delivered to staff solicitor

     
31.   Staff solicitor's duty on receipt of certificate

     
32.   Expiration of certificates

     
33.   Lost or destroyed certificates

     
34.   Retroactive certificates

     
35.   Client to execute directive

     
36.   Written opinion required

     
37.   Application for amended certificate

     
38.   Area director may amend certificate

     
39.   Issuing of amended certificate

     
40.   Procedure re amended certificate

     
41.   Change in solicitor-client relationship

     
42.   Where client's request refused

     
43.   Appeal

     
44.   Appeal to appeal board

     
45.   Cancellation of the certificate

     
46.   Solicitor's duty on completion of work

     
47.   Collection of costs awarded client

     
48.   Notice regarding costs

     
49.   When certificate considered discharged

     
50.   Notice of non-entitlement

     
51.   Cancellation of certificates

     
52.   Procedure on cancellation of certificate

     
53.   Commencement of appeal to provincial director

     
54.   Determination of appeal

     
55.   Establishment of appeal board

     
56.   Appeal procedure

     
57.   Commencement of appeal to appeal board

     
58.   Solicitor to provide information

     
59.   Staff solicitor's report

     
60.   Area director's records and monthly reports

     
61.   Area director's annual report

     
62.   Provincial director's quarterly report

     
63.   Provincial director's annual report

     
64.   Additional reports

     
65.   Accounts to be kept of the fund

     
66.   Bank accounts

     
67.   Payment by cheque

     
68.   Signing officers

     
69.   Client's contribution to fund

     
70.   Writing off uncollectible accounts

     
71.   Payment under fee schedules

     
72.   Solicitor to submit account and supporting documents

     
73.   Duty counsel accounts

     
74.   Time limit on submitting account

     
75.   Form of account

     
76.   Schedule of fees and disbursements

     
77.   Limitation on remuneration

     
78.   Disbursements

     
79.   Advance for disbursements

     
80.   Each account taxed

     
81.   Items disallowed by taxing officer

     
82.   Notice of taxation of account

     
83.   Review of taxed account

     
84.   Application for review

     
85.   Appeal of taxing officer's review

     
86.   Provincial director to authorize payment

     
87.   Solicitor consenting to costs

     
88.   Notice of settlement required

     
89.   Client liability to commission

     
90.   Settlement where costs not paid

     
91.   Review of client liability to commission

     
92.   Appeal of review

     
93.   Hearing of appeal

     
94.   Disposition of appeal

     
95.   Costs awarded against client

              PART II
ADMINISTRATIVE PLAN ORGANIZATION AND DUTIES

     
96.   Provincial director

     
97.   Powers of provincial director

     
98.   Deputy directors

     
99.   Appointment of controller

   
100.   Responsibilities of controller

   
101.   Designation of taxing officers

   
102.   Responsibilities of taxing officers

   
103.   Division of the province

   
104.   Appointment of area directors

   
105.   Area offices

   
106.   Deputy area directors

   
107.   Where no area director

   
108.   Office hours

   
109.   Responsibilities of area director

   
110.   Provincial director to act as area director

   
111.   Application to be entered on a panel

   
112.   Submission of application

   
113.   Area director to maintain panels

   
114.   Solicitor's name entered on panel list

   
115.   Resignation of and removal of solicitor from panel

   
116.   Removal upon disbarment

   
117.   Hearing re removal from panel

   
118.   Application for restoration to panel

   
119.   Duties of solicitor removed from panel

   
120.   Solicitor may refuse to accept client

   
121.   Compliance with regulations

   
122.   Solicitor's lien

   
123.   Where solicitor unable to act

   
124.   Duty counsel panel

   
125.   Service provided by duty counsel

   
126.   Duty counsel may assist area director

   
127.   Duty counsel weekly report

   
128.   Restriction on duty counsel

   
129.   Exception to restriction on duty counsel

   
130.   Where counsel may be employed to assist solicitor

   
131.   Fees to be paid counsel

   
132.   Appointment of counsel at request of court

   
133.   Commission may employ full or part-time solicitors

   
134.   Records to be kept by solicitors

   
135.   Private practice prohibited

   
136.   Student participation permitted

   
137.   Student may act on behalf of principal

   
138.   Area director may arrange for student's services

   
139.   Student's remuneration

   
140.   Consultants, experts or investigators

   
141.   Remuneration of agents

   
142.   Agents subject to Act and regulations

   
143.   Duties of agents

   
144.   Notice of agency

   
145.   Agents' oath or affirmation

   
146.   Legal aid relationship not to be revealed

   
147.   Provincial director may extend time limits

   
148.   Service

   
149.   Solicitor-client relationship

   
150.   False statements by client

   
151.   Offence by applicant or client

   
152.   Offence by solicitor

   
153.   Investigation and disposition of complaints re solicitors

   
154.   Form of security for debts

   
155.   Oath or affirmation required

   
156.   Fidelity insurance

   
157.   Appointment of committees and subcommittees

   
158.   Out-of-town agents

   
159.   Repeal


Schedule A


Schedule B


Schedule C


Schedule D


Schedule E


Schedule F


Short title

        1. These regulations may be cited as the Legal Aid Regulations.

87/78 s1

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Definitions

        2. In these regulations

             (a)  "Act" means the Legal Aid Act;

             (b)  "controller" means the controller of legal aid appointed under the Act and section 99; and

             (c)  "plan" means the plan of legal aid established by the Act and these regulations.

87/78 s2

PART I
PROCEDURE

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Applications by residents of the province

        3. (1) An application for legal aid by a resident of the province shall be in writing in a form prescribed by the minister.

             (2)  An applicant shall provide the information that is required in order to complete the application and shall sign a consent to inspect assets in a form prescribed by the minister.

87/78 s3

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Applications by minors

        4. An area director may require that an application for legal aid for a minor be made on his or her behalf by that person's parent or guardian when the circumstances appear to justify that application.

87/78 s4

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Applications for mentally incompetent persons

        5. (1) Notwithstanding subsection (2), an application for legal aid for a person who has been found, under an Act, to be mentally incompetent, mentally ill or incapable of managing his or her own affairs shall be made on that person's behalf by his or her committee or legal representative.

             (2)  Where the applicant is a patient in a hospital or an institution an application for legal aid may be made by the patient or a friend or relative of the patient on that person's behalf.

87/78 s5

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Transfer to another area

        6. (1) Where an area director believes that the legal aid applied for can be rendered more conveniently and economically by a solicitor in another area, or for another reason he or she considers proper, that area director may send the application, his or her report of the applicant's financial eligibility and the applicant's agreement to pay the contribution in accordance with the report to the area director in the appropriate area.

             (2)  The other area director referred to in subsection (1) may issue his or her certificate to the applicant in accordance with the application and other material received under that subsection and shall act and proceed as if the application has been made to him or her by the applicant in the first instance.

87/78 s6

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Applications considered and refused by area director

        7. (1) Subject to section 8 and section 47 of the Act, every application for legal aid shall be considered by the area director receiving it.

             (2)  If, under the circumstances, including questions of law or fact arising out of the applicant's claim to relief or defence or the nature of the matter sought to be dealt with by a solicitor,

             (a)  it appears that

                      (i)  the applicant requires legal aid in a matter in which he or she is concerned in a representative, fiduciary or official capacity and it appears the cost can be paid out of any property or fund which is sufficient to pay the costs,

                     (ii)  the applicant is entitled to financial or other aid or has reasonable expectation of the aid excluding assistance under the Social Assistance Act and has failed to satisfy the area director that the aid is not available to him or her,

                    (iii)  the legal aid applied for is frivolous, vexatious, an abuse of the process of the court or an abuse of the facilities provided by the Act,

                    (iv)  the relief sought can bring no benefit to the applicant over and above the benefit that would accrue to him or her as a member of the public or some part of it,

                     (v)  the relief sought, if obtained, is not enforceable in law or there is no reasonable expectation of practically enforcing the relief,

                    (vi)  the relief sought, if obtained, does not justify the cost of obtaining the relief,

                   (vii)  the applicant has failed in an obligation to the commission with respect to legal aid without reasonable justification,

                  (viii)  the professional services sought are available to the applicant without legal aid,

the area director shall refuse to grant legal aid to or issue a certificate to the applicant; or

             (b)  it appears that

                      (i)  the applicant is one of a number of persons having the same interests under the circumstances that one or more may sue or defend on behalf of or for the benefit of all,

                     (ii)  the applicant has a right to be joined in an action as plaintiff with one or more other persons having the same right to relief by reason of there being a common question of law or fact to be determined,

                    (iii)  the application is for legal aid for which the applicant has previously received a certificate with respect to the same action or matter,

                    (iv)  the relief sought is enforceable only in some other jurisdiction,

                     (v)  the cause of action may be prosecuted or defended only in a court of some other jurisdiction, or

                    (vi)  no sufficient reason for the granting of legal aid or the issuing of a certificate is shown at the particular time,

the area director may refuse to grant legal aid or to issue a certificate to the applicant.

87/78 s7; 10/86 s1

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Provincial director's approval required before refusal

        8. Where an application for legal aid is considered in the absence of the area director by the deputy director or another person, if that person is not or has not been a member of the Law Society of Newfoundland, he or she shall not refuse to issue a certificate on the grounds set out in section 7 without the approval of the provincial director.

87/78 s8; 2001 c42 s45

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Determining financial eligibility

        9. The financial eligibility of an applicant for legal aid shall be determined by the rules set out in Schedule E.

87/78 s9

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Client's agreement re contribution

      10. (1) Where an area director determines under section 44 of the Act that the applicant can pay some part of the cost of the legal aid applied for, and the applicant does not pay that part of the cost at that time, he or she shall require the applicant to enter into an agreement in a form prescribed by the minister before granting legal aid or issuing a certificate.

             (2)  Where an area director determines that the applicant can pay no part of the cost of the legal aid applied for, he or she shall require the applicant to enter into an agreement in a form prescribed by the minister before granting legal aid or issuing a certificate.

87/78 s10

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Failure by client to sign agreement

      11. Where the agreement contained referred to in section 10 is not signed and returned within 15 days of the date on which it was delivered or sent to the applicant, the application for legal aid shall be considered to have been withdrawn and no further proceedings shall be taken.

87/78 s11

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Withdrawal of application

      12. Withdrawal of an application under section 11 shall not be a bar to a later application for the same purpose.

87/78 s12

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Notice of disposition by area director

      13. Where an area director

             (a)  refuses to grant legal aid or issue or amend a legal aid certificate; or

             (b)  determines that he or she shall grant legal aid or issue a certificate or amended certificate on condition that the applicant make a contribution to the cost of the legal aid applied for,

he or she shall notify the applicant in a form prescribed by the minister and shall provide that person with the appropriate forms for appeal as prescribed by the minister.

87/78 s13

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Notice of disposition by provincial director

      14. (1) Where the provincial director

             (a)  refuses to grant legal aid;

             (b)  refuses to issue or amend a legal aid certificate;

             (c)  conditions the granting of legal aid or issuing of a certificate on the contribution of the applicant;

             (d)  suspends or withdraws legal aid; or

             (e)  cancels or amends a legal aid certificate,

he or she shall notify the applicant in a form prescribed by the minister and shall provide that person with the appropriate form for appeal as prescribed by the minister.

             (2)  Where an applicant wishes to appeal a decision referred to in subsection (1), he or she shall complete a form prescribed by the minister and deliver it to the provincial director's office in accordance with section 57.

87/78 s14

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Previous assistance payments

      15. All payments to the Newfoundland and Labrador Legal Aid Commission by the Department of Justice on behalf of a person who is eligible for assistance under the Social Assistance Civil Legal Aid Regulations made after July 10, 1980 , shall be considered to be payments of assistance under these regulations.

10/86 s2; 2001 c42 s45

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Previous social assistance payments

      16. All payments out of the Legal Aid Fund after July 10, 1980 , in respect of which a person is eligible for social assistance, civil legal aid, shall be considered to be payments of assistance on his or her behalf.

10/86 s2

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Information additional to application

      17. Where a person applies for legal aid with respect to a matter or proceeding coming under section 52 of the Act, he or she shall include with his or her application to the area director the materials required by that section.

87/78 s15

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Evaluation of appeal

      18. (1) Where an application contemplated in section 17 has been received by the area director, he or she shall submit it to the provincial director immediately together with all the information he or she has concerning the applicant, including a report of the amount the applicant was required to contribute to the fund and if he or she is in default in his or her payments.

             (2)  Together with the requirements of subsection (1), the area director shall provide the provincial director with his or her opinion as to the reasonableness of instituting or defending the appeal.

87/78 s16

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Provisional certificate

      19. An area director who has received an application for legal aid in a matter or proceeding coming within section 52 of the Act and in whose opinion the circumstances of the application require the issue of a certificate immediately may issue a provisional certificate authorizing the service and filing of a notice of appeal without having first received the approval of the provincial director.

87/78 s17

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Provincial director to dispose of application

      20. (1) Upon receipt of the information and materials required under section 52 of the Act and these regulations by the provincial director, he or she shall immediately determine whether or not a certificate shall be issued for legal aid with respect to the matter or proceeding coming under section 52 of the Act.

             (2)  Upon making his or her decision under subsection (1), the provincial director shall immediately notify the area director and the applicant in writing of his or her decision and, if the application is refused, notice in writing in a form prescribed by the minister of the refusal of the application shall be sent immediately by the area director to the applicant together with a notice of appeal form as prescribed by the minister.

             (3)  The applicant may appeal the provincial director's decision in accordance with the Act.

87/78 s18

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Applications by non-resident persons

      21. (1) If an applicant is not a resident of the province but is physically present in the province and the legal aid applied for concerns a matter of proceeding arising in the province, the application shall be in the form prescribed by the minister and may be made to the area director of the area in which the event occurred giving rise to the application.

             (2)  If an applicant is not a resident of the province nor of another province of Canada and is not physically present in the province and the legal aid applied for concerns a matter or proceeding arising in the province, the application shall be in the form prescribed by the minister and shall be made to the provincial director.

             (3)  Where an area director or the provincial director receives an application under subsection (1) or (2), he or she shall

             (a)  make those inquiries and investigations as possible into the matters and means of the applicant; and

             (b)  immediately forward the application with his or her report to the director

and the provincial director may, in his or her discretion, direct the issuance of a certificate or otherwise authorize legal aid for the applicant.

87/78 s19

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Applications by residents of another province

      22. Where the applicant is not a resident of the province and is not physically present in the province but is a resident of another province or territory of Canada and the legal aid applied for concerns a matter of proceeding arising in the province, the application or request for legal aid shall

             (a)  where the commission has entered into an agreement concerning reciprocity in legal aid matters with a recognized legal aid authority in the province or territory where the applicant is resident, be disposed of in accordance with the terms of that agreement; or

             (b)  where the commission has not entered into an agreement concerning reciprocity in legal aid matters with a recognized legal aid authority in the province where the applicant is resident, be disposed of in accordance with the terms set out in Schedule F.

87/78 s20

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Reciprocal agreements

      23. For the purposes of

             (a)  providing legal aid to residents of another province or territory of Canada who are not physically present in the province at the time an application or request for legal aid is made; and

             (b)  providing legal aid for residents of the province with respect to a matter or proceeding arising in another province or territory,

the commission may enter into an agreement concerning reciprocity in legal aid matters with a recognized legal aid authority in any province or territory on terms and conditions that it considers necessary and proper and may vary or amend the agreement.

87/78 s21

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Issuing of provisional certificates

      24. (1) A provisional certificate shall be in a form prescribed by the minister and shall be limited to authorizing legal services that are necessary to protect the rights of the client until the time that the normal requirements of the Act and these regulations have been completed.

             (2)  Upon the issuing of a provisional certificate the client shall complete an undertaking in the form prescribed by the minister.

87/78 s22

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Issuing of certificates

      25. Where it has been determined under the Act that an applicant is entitled to the legal aid applied for, the area director or provincial director shall issue a certificate to the applicant.

87/78 s23

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Form of certificate

      26. (1) A legal aid certificate shall be in the form prescribed by the minister.

             (2)  Notwithstanding subsection (1), where the legal aid applied for is to be provided by duty counsel or through a neighbourhood legal aid centre, the certificate may be in the form the minister considers appropriate.

87/78 s24

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Contents of certificate

      27. A certificate shall bear the date and day on which it was issued and shall set out the nature and extent of the services to be rendered on the applicant's behalf, the amount of his or her contribution to the fund and a restriction or limitation imposed by the area director or provincial director.

87/78 s25

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Delivery of certificate

      28. Where legal aid is provided by a solicitor other than one in the employ of the commission, the area director shall deliver or send the certificate to the applicant or at his or her request to the solicitor to whom his or her case has been assigned or, where the applicant has a choice, to the panel solicitor of his or her choice.

87/78 s26

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Panel solicitor's duty on receipt of certificate

      29. A solicitor, other than one in the employ of the commission, who has received a certificate shall within 10 days,

             (a)  complete and sign the solicitor's acknowledgement and undertaking on the appropriate copy of the certificate and return it to the area director;

             (b)  if unable or unwilling to act, return the certificate immediately to the client or to the area director that the circumstances require.

87/78 s27

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Where certificate delivered to staff solicitor

      30. (1) Where legal aid is to be provided by a solicitor in the employ of the commission, the area director shall send the certificate to the solicitor to whom the case has been assigned and shall send the appropriate copy to the applicant.

             (2)  The certificate shall indicate the name and address of the solicitor to whom the case has been assigned, together with instructions to the applicant that it is his or her responsibility to contact the solicitor at the earliest possible time.

87/78 s28

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Staff solicitor's duty on receipt of certificate

      31. A solicitor in the employ of the commission who receives a certificate shall within 10 days,

             (a)  complete and sign the solicitor's acknowledgement and undertaking on the appropriate copy of the certificate and return it to the area director; or

             (b)  if he or she is unable to act, return the certificate immediately to the area director.

87/78 s29

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Expiration of certificates

      32. (1) Where a certificate has been issued to a solicitor under these regulations and the solicitor has not completed and returned the acknowledgement and undertaking within one calendar month of the issuing of the certificate, the certificate

             (a)  shall expire during the 3 month period following its date of issuance at the discretion of the area director; and

             (b)  shall be considered to have expired at the end of the 3 month period following its date of issuance.

             (2)  Where a certificate has expired or is considered to have expired under subsection (1), the area director shall immediately serve on the client a notice of expiry in the form prescribed by the minister by mailing the notice by prepaid post to the client at his or her last address as shown in the records of the area director and a copy of the notice shall be similarly served on the solicitor, if known.

             (3)  A certificate that has expired or that is considered to have expired under subsection (1) may be reactivated by the area director within one calendar month from the date of its expiry where, having regard to all circumstances, the area director is of the opinion that reactivation of the certificate shall not be detrimental to the fund.

             (4)  Where an area director reactivates a certificate under subsection (3), the area director shall immediately serve on the client a notice of reactivation of certificate in a form prescribed by the minister by mailing the notice by prepaid post to the client at his or her last address as shown in the records of the area director and a copy of the notice shall be similarly served on the solicitor, if known.

             (5)  Where a certificate is reactivated under subsection (3), its date of issue for the purposes of subsection (1) shall be considered to be the original date upon which it was issued, but where a certificate expires or is considered to expire a second time under subsection (1), the certificate shall not be subsequently reactivated.

87/78 s30

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Lost or destroyed certificates

      33. Where an applicant satisfies an area director that a certificate issued to him or her has been lost or destroyed, a replacement certificate for the same legal services may be issued bearing the same date as the one lost or destroyed.

87/78 s31

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Retroactive certificates

      34. Subject to section 37 of the Act, where an area director is satisfied that it is just and proper to do so, he or she may issue a certificate retroactively to a person eligible for legal aid and to whom a solicitor has rendered services.

87/78 s32

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Client to execute directive

      35. Where a solicitor agrees to act for a client under a certificate, he or she shall require the client to execute a directive in a form prescribed by the minister as soon as practicable.

87/78 s33

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Written opinion required

      36. (1) Where a certificate has been issued for a proceeding coming within paragraph 47(a), (b), (c) or (f) of the Act, a civil proceeding may not be taken under the certificate until the solicitor accepting it has provided to the area director his or her written opinion that it is reasonable under all the circumstances for him or her to commence, defend or continue the proceeding and the area director has authorized the solicitor to proceed.

             (2)  Where the initial step in the proceeding is required by a statute, rule of law or practice to be taken immediately if the rights of the applicant are to be preserved, the solicitor may take the initial step, but shall not take a further step until he or she has provided the opinion required by subsection (1).

             (3)  Where a solicitor who has received a certificate referred to in subsection (1) has advised the area director that it is not reasonable, under all of the circumstances, for him or her to commence, defend or continue the proceedings, the area director shall advise the client of that fact.

             (4)  Upon notifying the client of the solicitor's opinion referred to in subsection (3), the area director may cancel or amend the certificate or allow it to remain unchanged and, where the certificate has not been cancelled, may allow the client to change solicitors.

87/78 s34

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Application for amended certificate

      37. (1) Where a client wishes to have his or her certificate amended, he or she may apply in person or by his or her solicitor.

             (2)  Where the applicant is represented by a solicitor, the area director may require the solicitor to provide an opinion, orally or in writing, as to the merits of the application before deciding whether to amend the certificate as requested.

87/78 s35

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Area director may amend certificate

      38. (1) Where an area director has issued a certificate and ascertains that, in his or her opinion

             (a)  the client is able to pay some part of the legal aid authorized by the certificate; or

             (b)  it is proper that the client pay a greater or lesser part of the cost of the legal aid than provided for in the certificate,

he or she may amend the certificate and require the client to sign an agreement to pay the commission the amount ascertained by the area director.

             (2)  A certificate shall not be amended under this section until a written notice in a form prescribed by the minister has been served on the client and his or her solicitor fixing a time and place not less than 7 days from the mailing of the notice at which the client may show cause why the certificate should not be amended.

             (3)  If a client fails or refuses to sign the agreement to pay in accordance with the amended certificate within 5 days after the time fixed in subsection (2) to show cause, the area director may cancel the certificate.

87/78 s36

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Issuing of amended certificate

      39. Where an area director determines that a certificate issued by him or her or by a former area director for that area ought to be amended, he or she

             (a)  shall issue a further certificate showing on its face that it amends and replaces the certificate previously issued; and

             (b)  shall send it to the client's solicitor who shall complete and sign the appropriate copy of the amended certificate and return it together with the replaced certificate immediately to the area director.

87/78 s37

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Procedure re amended certificate

      40. Where no solicitor acts for the client under the original certificate or where the solicitor has ceased to act, the area director, upon issuing an amended certificate, shall proceed as under section 28 or 30 and the client or his or her previous solicitor shall return the original certificate to the area director.

87/78 s38

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Change in solicitor-client relationship

      41. (1) Where a solicitor is notified by his or her client that the client wishes to change his or her solicitor, or where a solicitor is no longer able or willing to represent the client and the client has been so notified, written notice of termination of the solicitor and client relationship shall be given to the area director by both parties.

             (2)  Where a solicitor and client relationship has been terminated and the legal aid for which a certificate was issued has not been completed, the client may apply for a new certificate.

             (3)  Where a client wishes to change solicitors and where the acting solicitor is still able and willing to represent the client, the area director shall not authorize the change of solicitors or the issuance of a new certificate unless he or she is satisfied by the client that the client has good cause for requesting the change.

87/78 s39

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Where client's request refused

      42. Where the area director refuses the client's request for a change of solicitors, he or she shall immediately notify the client of his or her written decision in a form prescribed by the minister and shall provide a notice of appeal form as prescribed by the minister to the client.

87/78 s40

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Appeal

      43. (1) Where the client wishes to appeal the decision of the area director referred to in section 42, he or she shall complete the appropriate form prescribed by the minister and deliver it to the office of the area director whose decision is being appealed within 14 days of the mailing of the notice of disposition of his or her request for a change of solicitors.

             (2)  The area director shall inform the applicant of the disposition of the appeal in a form prescribed by the minister and the area director shall implement the decision of the provincial director.

87/78 s41

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Appeal to appeal board

      44. Where the refusal to grant the client's request for a change of solicitor was originally made by the provincial director, the client may appeal his or her decision to the appeal board in accordance with section 57.

87/78 s42

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Cancellation of the certificate

      45. (1) Where a client's request for a change of solicitor has been refused and the time limited for appeal has expired without an appeal being taken, and the client is not willing to remain with the acting solicitor, the area director shall cancel the certificate or withdraw the legal aid.

             (2)  There is no right of appeal from legal aid cancelled or withdrawn under subsection (1).

87/78 s43

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Solicitor's duty on completion of work

      46. Where

             (a)  a solicitor completes all services authorized under a certificate;

             (b)  a solicitor and client relationship is terminated in a manner referred to in subsection 41(1);

             (c)  a solicitor is of the opinion that no further useful work can be done for the client; or

             (d)  a client has directed the solicitor to proceed no further,

the solicitor shall immediately

             (e)  report to the area director in writing in a form prescribed by the minister;

             (f)  except where the solicitor is in the employ of the commission, submit his or her account and supporting material in accordance with section 72; and

             (g)  except in a case where the certificate has been cancelled, deliver to the client a copy of the report required by paragraph (e) and upon obtaining a receipt for it, and subject to the Act, all papers, documents and other property of the client in his or her possession.

87/78 s44

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Collection of costs awarded client

      47. (1) Where a judgment or an order as to costs may be made in favour of a client, the certificate authorizing legal aid to be given in the matter shall authorize the solicitor to take the steps to collect the amount of any judgment or order as to costs that are reasonable in the circumstances.

             (2)  Where a solicitor is in doubt as to the reasonableness of a step in the collection of an amount owing to his or her client, he or she may obtain the approval of the area director before proceeding.

87/78 s45

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Notice regarding costs

      48. A solicitor representing a client in whose favour a settlement or an order as to judgment or costs is made shall draw to the attention of his or her client the provisions of section 45 of the Act relating to the repayment of amounts in respect of costs, disbursements and fees for professional services, and shall transmit a copy of the directive signed under section 35 to the person from whom the money, property or costs is recoverable and to that person's solicitor.

87/78 s46

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When certificate considered discharged

      49. A certificate is considered to be discharged when

             (a)  the client requests the area director to discharge it or the claim or proceedings have been fully disposed of by judgment order or settlement;

             (b)  except where the taxing officer otherwise directs, the solicitor has taxed costs awarded to the client and has made all reasonable efforts to collect the amount of an award and taxed costs, including as may be necessary the filing of a writ of execution with the sheriff and obtaining his or her return and examining the judgment debtor and filing a transcript of the examination with the area director;

             (c)  where the client is entitled to recover money, property or costs under a judgment, order or settlement, the solicitor has provided a copy of the directive signed under section 48 to the person from whom the money, property or costs is recoverable and to the solicitor of that person;

             (d)  the solicitor has been paid his or her fees and disbursements.

87/78 s47

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Notice of non-entitlement

      50. Where it comes to the attention of a solicitor that his or her client may not have been entitled to or may no longer be entitled to the certificate under which the solicitor is acting, the solicitor shall immediately report that circumstance to the area director.

87/78 s48

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Cancellation of certificates

      51. (1) Where an area director has issued a certificate and ascertains that,

             (a)  in his or her opinion,

                      (i)  the matter is one that comes within section 7,

                     (ii)  it appears that the client is able to pay in full for the legal aid authorized,

                    (iii)  the client no longer has reasonable grounds for continuing the proceedings authorized by his or her certificate;

             (b)  the client has failed without reasonable justification in an obligation to the commission with respect to legal aid; or

             (c)  the client has requested that the area director cancel the certificate and the area director, having regard to all the circumstances, is of the opinion that the cancellation shall not be detrimental to the fund,

he or she may cancel the certificate.

             (2)  Where a certificate has been cancelled under paragraph (1)(c), the area director may, in his or her discretion, cause the date of cancellation to be retroactive to the date that the certificate was issued.

87/78 s49

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Procedure on cancellation of certificate

      52. (1) Notwithstanding section 51, a certificate shall not be cancelled under paragraph 51(1)(a) or (b) until a notice in the form prescribed by the minister has been served on the client and his or her solicitor affixing a time and place not less than 7 days from the mailing of the notice at which the client may show cause why the certificate should not be cancelled.

             (2)  If a certificate is cancelled by an area director under paragraph 51(1)(a) or (b), he or she shall give written notice of cancellation in a form prescribed by the minister immediately to the client and to his or her solicitor.

             (3)  If a certificate is cancelled by an area director under paragraph 51(1)(c), he or she shall give written notice of cancellation in a form prescribed by the minister immediately to the client and to his or her solicitor.

             (4)  Upon receiving notice of cancellation in the form prescribed by the minister the solicitor shall immediately deliver the client's file to the area director.

             (5)  When an area director cancels a certificate, he or she shall report to the provincial director and shall forward the client's file to the provincial director upon its receipt from the solicitor.

87/78 s50

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Commencement of appeal to provincial director

      53. An appeal to the provincial director under subsection 55(1) of the Act shall be commenced by the service on the area director within 14 days

             (a)  after delivery of notice of refusal to grant legal aid or refusal to issue or amend a certificate;

             (b)  of the conditioning of the granting of legal aid or issuing of a certificate on the contribution of the applicant;

             (c)  of the suspension or withdrawal of legal aid;

             (d)  of the cancellation or amendment of a certificate; or

             (e)  of a notice of appeal in a form prescribed by the minister or in another written form that the director may accept.

87/78 s51

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Determination of appeal

      54. (1) The provincial director shall determine the appeal with all due dispatch and may for this purpose conduct an inquiry that in his or her opinion is necessary, including the appointment of a time and place for a hearing of the appeal at which both the area director and the appellant may be present in person or represented by counsel.

             (2)  The provincial director shall immediately notify the appellant and the area director of his or her decision in a form prescribed by the minister.

87/78 s52

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Establishment of appeal board

      55. (1) The commission shall establish an appeal board to hear appeals under section 53 of the Act and appeals which may be taken to the appeal board under these regulations.

             (2)  The appeal board shall consist of 3 members appointed by the commission and the commission shall designate one of the members to be chairperson.

             (3)  The appeal board shall meet whenever required to hear an appeal under the Act.

             (4)  The commission may authorize the payment of remuneration and expenses to some or all of the members of the appeal board.

87/78 s53

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Appeal procedure

      56. (1) On the hearing of an appeal, the appeal board

             (a)  shall consider all relevant information including written submissions;

             (b)  may hear the provincial director or other person whose decision is being appealed and the appellant either in person or by his or her solicitor or representative; and

             (c)  shall hear another person it considers advisable.

             (2)  The appeal board shall determine the appeal and a decision of the appeal board shall be the decision of any 2 of its members.

             (3)  Notice of the appeal board's decision shall immediately be given, in writing, in a form prescribed by the minister to the appellant and to the person whose decision is being appealed.

87/78 s54

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Commencement of appeal to appeal board

      57. (1) An appeal to the appeal board shall be

             (a)  commenced by written notice of appeal in a form prescribed by the minister;

             (b)  delivered to the person whose decision is being appealed within 14 days of delivery to the appellant of notice of the decision being appealed.

             (2)  If the person whose decision is being appealed is not the provincial director, then a copy of the notice of appeal shall be delivered to the provincial director within the time limited by subsection (1).

             (3)  Upon receipt of the notice of appeal the provincial director shall immediately request the chairperson of the appeal board to set a time and place for the hearing of the appeal.

             (4)  Notice in writing of the time and place of the hearing in a form prescribed by the minister shall be given by the provincial director to the appellant and to his or her solicitor and to the person whose decision is being appealed not less than 5 days before the hearing of the appeal.

87/78 s55

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Solicitor to provide information

      58. At the request of the provincial director or an area director, a solicitor who has undertaken to render legal aid shall provide information that the provincial director or the area director may require.

87/78 s56

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Staff solicitor's report

      59. A solicitor employed by the commission on either a full or part-time basis shall maintain the records of his or her time and activities as prescribed by the provincial director and shall, when requested by the provincial director or an area director, provide information with respect to his or her employment that the provincial director or an area director may require.

87/78 s57

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Area director's records and monthly reports

      60. Each area director shall

             (a)  keep accounting and other records that the provincial director may require;

             (b)  report monthly to the provincial director, or at other regular intervals as prescribed by the provincial director, and in the form that the provincial director may prescribe respecting

                      (i)  the name and address of each person to whom legal aid has been granted or a certificate has been issued,

                     (ii)  the amount that each person to whom legal aid has been granted or a certificate has been issued is required to contribute to the fund and the terms of payment,

                    (iii)  the amount of the contributions received and by whom paid, and

                    (iv)  further information that the provincial director may require.

87/78 s58

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Area director's annual report

      61. Each area director shall report to the provincial director in the form that is prescribed by the provincial director not later than April 10 in each year on the business or finances of his or her office for the preceding year ending on March 31.

87/78 s59

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Provincial director's quarterly report

      62. The provincial director shall report to the commission on a quarterly basis for the preceding 3 months in summary form with respect to

             (a)  the amount received under section 19 of the Act;

             (b)  the amount received for or on account of client contributions required to be made to the fund;

             (c)  the amount received on account of amounts recovered by clients;

             (d)  the amount of income received from another source;

             (e)  the amount expended for the costs of administration and operation of the plan;

             (f)  the balance on hand and on deposit to the credit of the fund;

             (g)  other information that the commission may require; and

             (h)  other information that the provincial director considers appropriate.

87/78 s60

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Provincial director's annual report

      63. The provincial director shall report to the commission not later than June 30 in each year for the preceding fiscal year in summary form with respect to

             (a)  the number of applications for legal aid received and certificates issued;

             (b)  the number of clients assisted by solicitors in private practice and the number assisted by staff solicitors;

             (c)  the number of persons assisted by duty counsel;

             (d)  the amount received by way of client contributions;

             (e)  the amount written off as uncollectible;

             (f)  the amount received on account of amounts recovered by clients;

             (g)  the amount received under section 19 of the Act;

             (h)  the amount of income received from another source;

              (i)  the amounts paid for fees and disbursements to solicitors and duty counsel;

              (j)  the amount paid for administrative and operational expenses;

             (k)  the balance in the fund on March 31 after making provision for all outstanding accounts payable;

              (l)  the number and nature of cases outstanding and incomplete on March 31;

           (m)  other information that is required by the commission; and

             (n)  other information that the provincial director considers appropriate.

87/78 s61

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Additional reports

      64. The provincial director shall also report to the commission in summary form on the matters outlined in section 63 when requested to do so by the commission.

87/78 s62

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Accounts to be kept of the fund

      65. (1) The commission shall keep full and proper accounts respecting the transactions of the fund which shall include a record of

             (a)  all cash receipts and disbursements;

             (b)  all cash advances made to area directors;

             (c)  all cash advances made to solicitors and counsel on account of cost and disbursements payable under certificates;

             (d)  all solicitors' accounts received and approved;

             (e)  all accounts receivable, including

                      (i)  amount of clients' contributions, and

                     (ii)  amounts recoverable by clients under judgments or settlements;

             (f)  all administrative expenses, including

                      (i)  salaries, wages and other remunerations and deductions,

                     (ii)  travelling and out-of-pocket expenses of the provincial director, the members of the commission, administrative staff and staff solicitors,

                    (iii)  the cost of maintenance of office accommodation and operational expenses, including stationery and printing, advertising, maintenance of furniture and equipment, communications and rentals, and

                    (iv)  the cost of acquisition of furniture and equipment.

             (2)  The commission shall keep or cause to be kept an up to date inventory of all its property, furniture and equipment.

87/78 s63

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Bank accounts

      66. All money paid to or received in respect of the fund shall be deposited immediately in an account in a chartered bank, loan or trust company to be designated by the commission.

87/78 s64

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Payment by cheque

      67. Every payment out of the fund shall be made by a cheque drawn on an account referred to in section 66 and in accordance with the provisions of section 68.

87/78 s65

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Signing officers

      68. The signing officers of the fund's bank accounts shall be any 2 of the following:

             (a)  the provincial director;

             (b)  the controller; or

             (c)  other persons that the commission may designate.

87/78 s66

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Client's contribution to fund

      69. A client's contribution to the legal aid costs shall be paid into the fund in accordance with his or her agreement with the commission as set out in the certificate or amended payment agreement.

87/78 s67

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Writing off uncollectible accounts

      70. Upon the recommendation of the provincial director, and subject to ministerial approval, the commission may authorize writing off as uncollectible any amount payable by a client or another person to the commission for the fund.

87/78 s68

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Payment under fee schedules

      71. A solicitor not in the employ of the commission who has provided legal aid authorized by the Act and these regulations shall be paid the amount of his or her account as taxed and settled under section 35 of the Act and Schedules A, B and C of these regulations.

87/78 s69

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Solicitor to submit account and supporting documents

      72. (1) A solicitor not in the employ of the commission who has provided services under a certificate and has completed the services or has ceased to act shall submit immediately to the provincial director

             (a)  an account, in duplicate, of his or her fees and disbursements showing the date upon which each item of service was performed, one copy of which shall bear the following certificate signed by him or her:

"I certify that the legal aid was rendered by me or by the other named person that is specifically stated and that the disbursements set out were paid or liability incurred and they were necessary and proper.";

             (b)  the certificate issued to the client;

             (c)  another written authorization for legal services or the expenditure of money;

             (d)  the accounts of an agent or counsel engaged, prepared in accordance with these regulations, certified in accordance with paragraph (a);

             (e)  a copy of his or her report in accordance with section 46;

             (f)  where, before the issue of the certificate, the solicitor was employed by the client to perform services with respect to the same matter, a detailed statement of the services rendered by the solicitor and disbursements made by him or her before the issue of the certificate and a statement of a payment made by the client to the solicitor on account of his or her fees and disbursements; and

             (g)  further or other supporting material that may be required by the provincial director or other person authorized to tax accounts under the Act or these regulations.

             (2)  A solicitor referred to in subsection (1) shall, at the time that he or she is submitting the material required by subsection (1), submit

             (a)  a copy of his or her account referred to in paragraph (1)(a) to the area director and to the client; and

             (b)  a copy of the material referred to in paragraph (1)(f) to the client.

87/78 s70

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Duty counsel accounts

      73. (1) A solicitor, who is not in the employ of the commission, acting as duty counsel after performing his or her duties, shall immediately submit to the provincial director his or her account in duplicate of the times during which and the places at which he or she was engaged as duty counsel and any claim for travelling expenses.

             (2)  The solicitor referred to in subsection (1) shall submit to the provincial director along with his or her account a report and certificate of duty counsel in the form prescribed by the minister for each individual assisted by the solicitor while acting as duty counsel.

             (3)  The solicitor referred to in subsection (1) shall forward a copy of his or her account to the area director for his or her area.

87/78 s71

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Time limit on submitting account

      74. (1) Notwithstanding sections 71 and 73, where a solicitor submits an account to the provincial director under section 72 or 73 more than 6 calendar months after the completion of the services covered by the account, there shall be no liability for payment of the account and the account shall not be taxed but shall be returned promptly to the solicitor with an appropriate reference to this section.

             (2)  Notwithstanding subsection (1), the provincial director in his or her discretion may extend the time during which a solicitor's account may be submitted under section 72 or 73.

87/78 s72

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Form of account

      75. An account submitted under section 71 shall set out in reasonable detail the services rendered and, where appropriate, detail time actually spent, together with the fees and disbursements sought in accordance with the appropriate schedules of fees and disbursements to these regulations, for each item of work.

87/78 s73

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Schedule of fees and disbursements

      76. The schedule of fees and disbursements in Schedules A, B and C shall constitute the fees and disbursements for legal aid authorized by the Act.

87/78 s74

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Limitation on remuneration

      77. (1) A solicitor providing legal aid whether under a certificate or as duty counsel shall not receive or accept a fee, gratuity or other compensation with respect to legal aid over and above the fees and disbursements provided, or, in the case of a staff solicitor, over and above the salary and benefits paid by the commission.

             (2)  A solicitor providing legal aid as a duty counsel may not receive or accept a fee, gratuity or other compensation for professional services rendered to the person in the matter or directly related to the matter for which legal aid as a duty counsel was provided.

87/78 s75

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Disbursements

      78. Disbursements shall be allowed only in accordance with Schedule C.

87/78 s76

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Advance for disbursements

      79. (1) A solicitor who is providing legal aid under a certificate and has incurred proper out-of-pocket disbursements totalling in excess of $250 under that certificate may apply to the provincial director for reimbursements before the submission of his or her account under section 72.

             (2)  An application under this section shall set out a detailed statement of the disbursements for which reimbursement is sought and shall bear the following certificate signed by the solicitor:

"I certify that the disbursements set out have been paid and that they were necessary and proper and I have not received a reimbursement for any of them."

87/78 s77

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Each account taxed

      80. Each account submitted under section 72 or 73 shall be taxed and approved for payment in accordance with section 35 of the Act and with these regulations.

87/78 s78

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Items disallowed by taxing officer

      81. The taxing officer may disallow in whole or in part fees for

             (a)  proceedings

                      (i)  unreasonably taken or prolonged,

                     (ii)  not calculated to advance the interests of a client, or

                    (iii)  incurred through negligence;

             (b)  preparing a document that is improper, unnecessary or of unreasonable length; or

             (c)  preparation that is unreasonable in its nature, scope or time expended.

87/78 s79

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Notice of taxation of account

      82. Where the taxing officer has taxed an account he or she shall immediately send to the solicitor who rendered it the duplicate copy of it and a notice of taxation of account in a form prescribed by the minister showing the disposition he or she has made of the items and certifying the amount at which it is taxed and the amount of it payable under section 35 of the Act.

87/78 s80

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Review of taxed account

      83. A solicitor who is dissatisfied with the taxation of his or her account may apply for a review of it by the taxing officer who shall review his or her taxation and amend or confirm his or her certificate and inform the solicitor of the result of that review.

87/78 s81

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Application for review

      84. Every application for a review of the taxation of an account shall be in writing and shall set out the items objected to and the ground of the objection and shall be made to the taxing officer not later than 10 days after the date of his or her certificate.

87/78 s82

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Appeal of taxing officer's review

      85. A solicitor who is dissatisfied with

             (a)  a review made by the taxing officer with respect to

                      (i)  the interpretation or application of this Part or Schedule A, B or C,

                     (ii)  the principles upon which the taxing officer has exercised his or her discretion in taxing an account; or

             (b)  the determination of costs under section 35 of the Act

may appeal to a judge of the Trial Division and the procedure on the appeal shall be the same as upon an appeal from a taxation made by a taxing officer, and upon receipt of the judge's decision, the provincial director shall settle the account in accordance with the decision of the judge.

87/78 s83

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Provincial director to authorize payment

      86. Where the provincial director is satisfied that the solicitor has performed all his or her duties under the Act, and that

             (a)  the account has been taxed at not less than the amount for which it was rendered;

             (b)  the time for applying for a review of the taxation of an account has elapsed and an application for review has not been received;

             (c)  the time for appealing from a review has elapsed and an appeal has not been taken; or

             (d)  an appeal from a review has been disposed of,

he or she shall authorize payment to be made out of the fund.

87/78 s84

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Solicitor consenting to costs

      87. The solicitor acting for a client in a matter or at a trial or on a settlement of an action or proceeding may, with the prior approval of the provincial director, agree to

             (a)  waive the right to costs;

             (b)  accept a lesser fixed sum for costs; or

             (c)  consent to the amount at which costs are to be taxed.

87/78 s85

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Notice of settlement required

      88. The solicitor acting for a client who effects a settlement on behalf of the client entitling the client to recover money or other property shall immediately inform the provincial director of the detailed terms of the settlement.

87/78 s86

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Client liability to commission

      89. (1) Where a client recovers or is entitled to money or other property by way of judgment, order or settlement,

             (a)  the party and party costs in favour of the client, if not determined by taxation under a judgment or order, may be agreed upon by the parties with the approval of the provincial director;

             (b)  failing an agreement and approval referred to in paragraph (a), the costs may be determined by the provincial director for the purpose of ascertaining the amount for costs to be paid into the fund and all the costs recovered shall be paid into the fund by the solicitor for the client;

             (c)  the costs for the services rendered by the solicitor shall, by agreement of the client and the solicitor with the approval of the provincial director, then be determined as between a client and his or her solicitor and failing that agreement the provincial director may require the taxation of the costs under Rule 55 of the Rules of the Supreme Court, 1986, and the amount by which the costs exceed the party and party costs shall also be paid into the fund unless the provincial director decides that under the circumstances no payment need be made; and

             (d)  where legal services have been rendered to a client before the issue of a certificate, the provincial director may determine the amount of the party and party costs referable to those services and certify the amount payable out of those costs to the client and to the fund.

             (2)  Where a client does not recover money or other property, the costs payable by the client shall not exceed the amount of his or her solicitor's account and any contributions made by the client in excess of the amount of the solicitor's account shall be refunded to him or her.

87/78 s87

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Settlement where costs not paid

      90. Where the client is entitled to recover money or other property under a judgment, order or settlement, unless the client has paid to the fund the costs for the services rendered in accordance with these regulations, the solicitor shall,

             (a)  before payment to the client or to his or her order of money recovered for him or her, pay to the fund the costs referred to; or

             (b)  before delivery to the client or to his or her order of property, other than money recovered for him or her or the title papers relating to it, and subject to the approval of the provincial director, obtain from the client the execution and delivery of an appropriate instrument securing the charge in favour of the commission for the costs, and shall register the instrument in the proper office and forward the duplicate original with registration or filing notations to the provincial director.

87/78 s88

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Review of client liability to commission

      91. (1) The provincial director shall determine the amount payable by a client under sections 45 and 46 of the Act and shall give notice to the client and to his or her solicitor of the amount due to the commission.

             (2)  A client who is dissatisfied with the determination of the provincial director may, within 14 days of mailing of the notice referred to in subsection (1), apply for a review of the determination by the provincial director.

             (3)  The provincial director shall review and confirm or vary the determination and shall inform the client within 10 days of his or her receipt of the application for review as to his or her disposition of the matter.

87/78 s89

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Appeal of review

      92. (1) Where a client is dissatisfied with a review made by the provincial director under subsection 91(3), he or she may appeal to the appeal board.

             (2)  An appeal under subsection (1) shall be commenced by the service of a notice of appeal in a form prescribed by the minister on the provincial director within 14 days after the mailing of the decision of the provincial director as to the review being appealed.

             (3)  Upon receipt of a notice of appeal the provincial director shall request a hearing of the appeal before the appeal board.

87/78 s90

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Hearing of appeal

      93. (1) The chairperson of the appeal board shall set a date and location for the hearing of an appeal and shall give reasonable notice to the provincial director and to the person initiating the appeal.

             (2)  The client and the provincial director may appear at the hearing of the appeal in person or by counsel.

87/78 s91

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Disposition of appeal

      94. The appeal board shall dispose of every appeal referred to in sections 92 and 93 and may affirm, increase or decrease the amount determined by the provincial director.

87/78 s92

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Costs awarded against client

      95. (1) Where proceedings have been taken or defended by a client and the costs of it have been awarded by a court against him or her, he or she may apply to the provincial director for payment out of the fund of the costs awarded.

             (2)  Where the client refuses or fails to apply for payment within a reasonable time, the person to whom the costs are awarded may make application.

             (3)  Where the provincial director receives an application under subsection (1) or (2) he or she shall, in accordance with subsection 45(2) of the Act, make disposition that appears to him or her to be just, including payment out of the fund of the whole or a part of the costs.

             (4)  The provincial director may make inquiries and hear submissions with respect to application that he or she considers advisable.

87/78 s93

PART II
ADMINISTRATIVE PLAN ORGANIZATION AND DUTIES

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Provincial director

      96. The provincial director is the chief executive officer of the commission and is responsible to the commission for the proper administration of the plan and he or she is responsible for

             (a)  establishing and maintaining legal aid, duty counsel and legal advice panels for the province that are necessary;

             (b)  organizing and supervising the activities of the legal aid agents provided for in section 28 of the Act;

             (c)  organizing, maintaining and supervising all accounting and financial procedures and records relating to the fund;

             (d)  organizing and supervising the work of the staff of the provincial director's office, of a neighbourhood legal aid centre, and organizing and supervising the work of duty counsel;

             (e)  organizing and maintaining and supervising procedures for collecting, retaining and analyzing information relating to the operation of the plan that is required by the commission;

             (f)  the submission to the commission of financial statements and reports that the commission may require;

             (g)  maintaining an office in St. John's in a place approved by the commission;

             (h)  publicizing the services offered by the commission and the terms of eligibility for legal aid;

              (i)  supervising the work of area directors employed by the commission in the administration of the plan and calling meetings of area directors that he or she considers to be desirable to consider matters of common interest and to encourage uniformity of practice;

              (j)  organizing and supervising the work of staff solicitors;

             (k)  acting as area director for an area for which no area director has been appointed or for which there is no acting area director;

              (l)  ensuring that all solicitor's accounts are taxed and paid in accordance with the Act and these regulations; and

           (m)  performing other duties that the commission may require.

87/78 s94

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Powers of provincial director

      97. The provincial director has all the powers of an area director with respect to all areas and may exercise those powers in addition to, or instead of, the exercise of those powers by an area director.

87/78 s95

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Deputy directors

      98. The commission may appoint one or more deputy directors and may approve the delegation of the provincial director's duties where not inconsistent with the Act or these regulations.

87/78 s96

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Appointment of controller

      99. The commission may in accordance with section 12 of the Act appoint a controller of legal aid.

87/78 s97

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Responsibilities of controller

   100. The controller is responsible to the provincial director for

             (a)  organizing, maintaining and supervising all accounting and financial procedures and records relating to the fund;

             (b)  organizing and supervising the work of the clerical staff in the office of the provincial director;

             (c)  organizing, maintaining and supervising procedures for collecting, retaining and analyzing information relating to the operation of the plan that is required by the provincial director;

             (d)  the submission to the provincial director of financial statements and reports that the provincial director may require;

             (e)  organizing, maintaining and supervising procedures for the collection of amounts owed to the commission; and

             (f)  performing other duties that the provincial director or the commission may require.

87/78 s98

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Designation of taxing officers

   101. For the purposes of taxation of accounts the provincial director or other person that the commission authorizes in accordance with section 35 of the Act shall be designated as a taxing officer.

87/78 s99

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Responsibilities of taxing officers

   102. The taxing officer is responsible for the taxation in accordance with these regulations of all solicitors' accounts for services rendered under the Act including accounts of duty counsel and he or she is authorized to make any inquiries he or she considers necessary for this purpose.

87/78 s100

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Division of the province

   103. For the purpose of administering the plan, the province is divided into the area designated in Schedule D.

87/78 s101

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Appointment of area directors

   104. The commission may appoint, in accordance with section 28 of the Act, an area director who shall maintain in his or her area an office in some convenient place approved by the provincial director.

87/78 s102

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Area offices

   105. An area legal aid office may be established to serve more than one area.

87/78 s103

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Deputy area directors

   106. One or more deputy area directors may be appointed by the commission for an area.

87/78 s104

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Where no area director

   107. In an area for which a deputy area director has not been appointed, the provincial director may appoint some suitable person to perform the duties of the area director during his or her absence.

87/78 s105

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Office hours

   108. Each area office shall be open during the hours approved by the provincial director as being sufficient for the business required to be performed.

87/78 s106

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Responsibilities of area director

   109. Each area director shall

             (a)  be responsible to the provincial director for the administration of the plan within his or her area;

             (b)  establish and maintain legal aid, duty counsel and legal advice panels for his or her area that the provincial director shall authorize;

             (c)  perform all the duties required of an area director by the Act;

             (d)  maintain and make available upon request lists of members of the individual panels in his or her area with the addresses of their places of business;

             (e)  make reports, estimates and recommendations respecting the operation and administration of the plan in his or her area that the provincial director may request; and

             (f)  perform other duties that the provincial director may require.

87/78 s107

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Provincial director to act as area director

   110. Where an area director has not been appointed for a particular area, the provincial director shall perform the duties of an area director for that area.

87/78 s108

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Application to be entered on a panel

   111. A solicitor who desires that his or her name be entered upon a panel established under section 33 of the Act shall submit an application in a form prescribed by the minister to an area director or the provincial director.

87/78 s109

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Submission of application

   112. An application under section 111 may be submitted to the area director of an area in which the solicitor maintains an office or in which he or she has an established practice.

87/78 s110

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Area director to maintain panels

   113. Each area director shall maintain lists of the names on the panels established under section 33 of the Act and may divide a panel into criminal and civil divisions and may further divide the civil division into family law and general civil divisions.

87/78 s111

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Solicitor's name entered on panel list

   114. The name of every solicitor who has applied under these regulations shall be entered on the appropriate area panel lists.

87/78 s112

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Resignation of and removal of solicitor from panel

   115. (1) A solicitor whose name has been entered on a panel may have his or her name removed from that panel upon written request to the area director or to the provincial director, as soon as he or she has completed all work that he or she has undertaken under the Act.

             (2)  Subject to section 66 of the Act, and following a hearing at which the solicitor is entitled to appear, the commission may remove the name of a solicitor from a panel for cause or where considered by the commission to be proper.

             (3)  Where a notice of complaint is served upon a solicitor by the commission, or a criminal charge is laid against a solicitor and the offence set out in the notice of complaint or alleged in the criminal charge relates in whole or in part to the operation of the plan, the provincial director shall immediately remove the name of the solicitor from all panels.

87/78 s113

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Removal upon disbarment

   116. Notwithstanding section 117, the provincial director, upon being advised by the law society that a solicitor has been disbarred or suspended, shall remove the name of the solicitor from all panels.

87/78 s114

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Hearing re removal from panel

   117. (1) Notwithstanding subsection 115(1), a solicitor who has received a notice from the commission removing his or her name from a panel may, within 14 clear days of receiving the notice, apply to a judge of the Trial Division for a hearing of the matter.

             (2)  Both the solicitor and the commission may be represented by counsel at the hearing.

             (3)  Upon hearing the matter, the judge may confirm the commission's action or may order the solicitor's name be restored to the panel from which it has been removed.

87/78 s115

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Application for restoration to panel

   118. A solicitor whose name has been removed from a panel under these regulations may apply to the area director or provincial director to have his or her name restored to the panel and his or her name may be restored by the provincial director with the approval of the commission.

87/78 s116

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Duties of solicitor removed from panel

   119. Every solicitor whose name has been removed from a panel shall

             (a)  deliver a legal aid file in his or her possession to the area director or provincial director when required;

             (b)  report to the area director or provincial director on the state of all incomplete work; and

             (c)  render his or her accounts for fees and disbursements in accordance with these regulations.

87/78 s117

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Solicitor may refuse to accept client

   120. Nothing in these regulations shall interfere with a solicitor's privilege to refuse a request for his or her professional services.

87/78 s118

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Compliance with regulations

   121. Every member of a panel shall make reports, provide information and render accounts in accordance with these regulations.

87/78 s119

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Solicitor's lien

   122. (1) No solicitor has a lien for his or her fees, charges or expenses for legal aid upon the property or papers in his or her possession belonging to a client.

             (2)  Nothing in this section shall be considered to deprive a solicitor of his or her lien on the property and papers in his or her possession for the fees, charges and expenses that the client was liable to pay to him or her for professional services rendered before the issuing of a certificate and not covered in it.

87/78 s120

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Where solicitor unable to act

   123. Where a solicitor whose name has been entered on a panel is unable to undertake legal aid during a period in excess of 10 days, he or she may so inform the area director or provincial director who shall cause the non-availability of the solicitor to be noted accordingly on all copies of the panel.

87/78 s121

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Duty counsel panel

   124. Each area director may establish and maintain panels of duty counsel for his or her area and may divide the panels into civil panels and criminal panels.

87/78 s122

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Service provided by duty counsel

   125. (1) Where a person has been taken into custody or summoned and charged with an offence, before that person's appearance to the charge, he or she may obtain the assistance of duty counsel, who shall

             (a)  advise that person of his or her rights; and

             (b)  take those steps as the circumstances require to protect that person's rights, including

                      (i)  representing him or her on an application for remand or adjournment or for bail or on the entering of a plea of guilty, and

                     (ii)  making representations with respect to sentence where a plea of guilty is entered.

             (2)  A person described in subsection (1) is entitled to the assistance of duty counsel notwithstanding that he or she has not been issued or is ineligible to receive a certificate.

87/78 s123

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Duty counsel may assist area director

   126. An area director may designate one or more duty counsel to assist in the operation of his or her office or to assist in the operation of neighbourhood legal aid centres in carrying out the provisions of the Act and these regulations in civil matters.

87/78 s124

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Duty counsel weekly report

   127. Every duty counsel during each period of duty shall prepare and submit weekly to the area director a report in a form prescribed by the minister on each person assisted.

87/78 s125

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Restriction on duty counsel

   128. (1) Notwithstanding subsection 77(2), the commission may designate an area or a part of an area where a duty counsel or a person associated with him or her in the practice of law shall not knowingly, unless with the prior approval of the provincial director and subject to subsection (2), act in the same matter for a person whom he or she has represented or advised as duty counsel.

             (2)  In an area or a part of an area designated by the commission under subsection (1), where duty counsel certifies in writing in a form prescribed by the minister to the area director that a prior solicitor and client relationship existed between a person and that duty counsel or anyone associated with him or her in the practice of law, he or she or anyone associated with him or her may act subsequently for that person if requested to do so.

87/78 s126

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Exception to restriction on duty counsel

   129. Notwithstanding the provisions of section 128, a staff solicitor who acts as duty counsel is free to accept a person whom he or she has represented as duty counsel as a client.

87/78 s127

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Where counsel may be employed to assist solicitor

   130. (1) Where in the opinion of a solicitor acting for a client the matters or proceedings for which aid has been authorized require the assistance of counsel, he or she may apply in writing to the area director for authority to employ counsel.

             (2)  An application referred to in subsection (1) shall state

             (a)  the extent of services to be performed by counsel; and

             (b)  the reasons the services are required.

             (3)  The area director shall submit the application referred to in subsection (1), together with his or her recommendations to the provincial director for its consideration.

             (4)  Authority to employ counsel shall

             (a)  be granted only to the extent approved by the provincial director;

             (b)  be in writing signed by the area director; and

             (c)  specify the extent of the services to be performed by counsel under that authority.

             (5)  Where authority has not been granted to employ counsel at trial or on the hearing of an appeal, a solicitor acting for a client with respect to the matter may, with the prior written approval of the area director, employ junior counsel to attend at the trial or the hearing of the appeal to assist him or her as counsel.

             (6)  Counsel may be selected from a legal aid panel but shall not be a person associated in the practice of law with the solicitor employing him or her except with the prior approval of the provincial director.

             (7)  Where authority has been granted to employ counsel at trial or on the hearing of an appeal, the solicitor employing the counsel may, with the prior written approval of the area director, attend at the trial or the hearing of the appeal to assist counsel.

87/78 s128

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Fees to be paid counsel

   131. (1) The fees payable to counsel shall be limited to those for the services performed within the authority referred to in subsection 130(4) and shall be in accordance with the schedule of fees to these regulations.

             (2)  Except as otherwise specifically provided in the schedule of fees to these regulations, the fees for attending at trial or on a hearing of an appeal payable to a junior counsel or solicitor authorized to attend under subsection 130(5) or (7) shall be one-third of the counsel fee payable in accordance with the schedule of fees to these regulations.

             (3)  For the purposes of this section and section 130, the expression "junior counsel" shall include a solicitor who has been admitted to the practice of law for less than 5 full years.

87/78 s129

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Appointment of counsel at request of court

   132. (1) Where an appeal by a convicted person or the Crown is heard in the Supreme Court of Canada or the Supreme Court of Newfoundland and Labrador and the appellant or respondent is not represented by counsel, and the court is of the opinion that it is desirable in the interest of justice that the appellant or respondent be represented in that manner the provincial director may, upon the request of the court, appoint counsel for that purpose where the provincial director is satisfied that the appellant or respondent does not have sufficient means to employ counsel.

             (2)  Every counsel appointed under subsection (1) shall be paid his or her fees and disbursements in accordance with the Act under the certificate of the taxing officer.

87/78 s130; 2001 c42 s45

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Commission may employ full or part-time solicitors

   133. (1) Subject to section 12 of the Act, the commission may, upon the terms and conditions and for a period it considers appropriate, employ solicitors for the proper carrying out of the work of the commission and may, for the purpose of this section, enter into an agreement with a solicitor setting out the terms and conditions of employment and the solicitor shall hold and vacate office in accordance with the agreement.

             (2)  A solicitor employed by the commission shall perform his or her duties in accordance with the terms and conditions of his or her employment agreement and in accordance with the Act and these regulations, and except as otherwise provided, shall be subject to the same rules and regulations governing the provision of legal aid as apply to a solicitor not in the employ of the commission.

87/78 s131

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Records to be kept by solicitors

   134. A solicitor in the employ of the commission shall keep a complete account of the professional services performed for each client and, upon completion of the services authorized to be performed or where the solicitor-client relationship has otherwise terminated, he or she shall file a written report in a form prescribed by the minister with the area director.

87/78 s132

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Private practice prohibited

   135. A solicitor employed by the commission on a full-time basis shall not engage in the private practice of law and shall not receive or accept, directly or indirectly, a fee, gratuity or other compensation with respect to legal aid provided by him or her, other than the remuneration or compensation and benefits provided in his or her terms of employment with the commission.

87/78 s133

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Student participation permitted

   136. Notwithstanding section 138, an articled student shall not participate in legal aid unless he or she has filed with the area director of his or her area

             (a)  the written approval of his or her principal to that participation; and

             (b)  a written acknowledgement of his or her principal that the participation of the articled student in legal aid shall be under the general supervision and control of the principal and within the scope of that approval.

87/78 s134

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Student may act on behalf of principal

   137. Notwithstanding section 136, nothing in these regulations shall interfere with an articled student participating in legal aid on behalf of and under the supervision of his or her principal or on behalf of and under the supervision of a solicitor who is a partner or employee of his or her principal's firm.

87/78 s135

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Area director may arrange for student's services

   138. (1) An area director may

             (a)  arrange with an articled student in his or her area for assistance to duty counsel and panel solicitors in rendering legal services through neighbourhood legal aid centres; and

             (b)  where for other than financial reasons a person has been refused a legal aid certificate under section 49 of the Act, refer the person in respect of the matter to an articled student in his or her area having requisite approval to deal with that matter.

             (2)  An articled student, with the approval of his or her principal, may represent and appear on behalf of a person who has been referred to him or her by an area director, provided he or she has the consent of the person and is entitled in law to appear.

87/78 s136

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Student's remuneration

   139. (1) An articled student providing legal aid shall not receive or accept, directly or indirectly, a fee, gratuity or other compensation with respect to the legal aid.

             (2)  Subsection (1) does not apply to

             (a)  receipt of wages by an articled student;

             (b)  receipt of wages by an articled student employed under the plan with the approval of the provincial director; or

             (c)  receipt of necessary disbursements by an articled student and out-of-pocket expenses, otherwise than from the fund.

87/78 s137

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Consultants, experts or investigators

   140. (1) The provincial director may allow the expense of consulting or employing an expert, investigator or consultant actually incurred by a solicitor for the purposes of a legal aid matter, where the solicitor applies for and receives authorization before incurring the expense.

             (2)  Notwithstanding subsection (1), an application required under that subsection shall be submitted to the provincial director in writing and shall state the name of the expert, investigator or consultant whose services are required, the nature of the services, the anticipated maximum cost of the services and the reason for requiring the services.

             (3)  Notwithstanding subsection (1), the authorization required under that subsection shall

             (a)  be in writing;

             (b)  be signed by the provincial director or his or her agent; and

             (c)  specify

                      (i)  the name of the expert, investigator or consultant who is being authorized to provide services,

                     (ii)  the nature of the services that are being authorized, and

                    (iii)  the maximum amount that shall be payable by the commission for those services.

             (4)  Notwithstanding subsection (1), the amount allowable to a solicitor under this section shall not exceed the maximum specified in the authorization and shall be allowable only in respect of the services that are

             (a)  specified in the authorization; and

             (b)  rendered by the expert, investigator or consultant named in the authorization.

87/78 s138

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Remuneration of agents

   141. The commission may set the remuneration to be paid to agents appointed under subsection 29(2) of the Act.

87/78 s139

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Agents subject to Act and regulations

   142. Each agent appointed by the commission shall perform his or her duties in accordance with the terms and conditions of his or her appointment and in accordance with the Act.

87/78 s140

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Duties of agents

   143. In addition to the duties and responsibilities set out in subsection 28(2) of the Act, a legal aid agent shall

             (a)  report monthly to the area director for his or her area concerning the number of

                      (i)  applications he or she has distributed,

                     (ii)  completed applications he or she has returned to the area director,

                    (iii)  inquiries directed to him or her regarding legal aid;

             (b)  distribute information on eligibility for legal aid;

             (c)  advise the residents of his or her area of the coverage provided by the Act and regulations; and

             (d)  assist applicants in completing applications,

provided that a legal aid agent, other than a solicitor, shall not give or pretend to give advice of a professional legal nature and shall not represent himself or herself as capable of giving advice of a legal nature.

87/78 s141

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Notice of agency

   144. Each legal aid agent shall maintain, in some conspicuous place at his or her office or residence, a notice to the effect that he or she is a legal aid agent.

87/78 s142

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Agents' oath or affirmation

   145. Upon being appointed each legal aid agent shall take and sign the oath or affirmation of office and secrecy as outlined in section 155.

87/78 s143

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Legal aid relationship not to be revealed

   146. A solicitor or articled student providing services under the Act shall not reveal to a person, other than an employee of the commission, or to a court that his or her services are being provided under the Act.

87/78 s144

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Provincial director may extend time limits

   147. The provincial director may extend the time for doing an act or taking a proceeding under these regulations and this function may be exercised although the application to extend is not made until after the expiration of the time prescribed.

87/78 s145

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Service

   148. (1) A written notice or other document directed or permitted to be served on an applicant or client may be served personally or by prepaid mail addressed to the person at his or her address last known to the area director and service shall be considered to have been made at the time of mailing.

             (2)  A written notice or other document directed or permitted to be served on a solicitor may be served personally or by prepaid mail addressed to him or her at his or her office or by delivering the notice or other document to his or her office.

             (3)  A written notice or other document directed or permitted to be served on the provincial director or on an area director may be served personally or by prepaid mail addressed to him or her at his or her office or by delivering the notice or other document to his or her office.

87/78 s146

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Solicitor-client relationship

   149. The customary solicitor and client relationship shall exist between a solicitor and his or her legal aid client and nothing in these regulations shall be construed to vary the customary relationship.

87/78 s147

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False statements by client

   150. Where it appears that a client has made a false statement or has concealed information in connection with his or her application,

             (a)  a certificate issued to him or her may be cancelled or any legal aid authorized for him or her may be suspended or withdrawn by the area director;

             (b)  the provincial director may declare that the certificate or legal aid so given or authorized was not given or authorized under the Act and these regulations and shall inform, in writing, the client and his or her solicitor of that declaration; and

             (c)  the commission on behalf of the fund shall be entitled to recover from the client the amounts that it has paid or is obligated to pay from the fund on the client's behalf.

87/78 s148

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Offence by applicant or client

   151. If it appears to an area director that an offence punishable under the Criminal Code or under the Act or under another statute has been committed by an applicant in applying for or by a client in receiving legal aid under the plan, the area director shall so inform the provincial director who shall refer the matter to the minister or other appropriate authority.

87/78 s149

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Offence by solicitor

   152. If it appears to an area director that a solicitor or articled student has committed an offence punishable under theCriminal Code or under the Act or these regulations or another statute while providing legal services under the plan, the area director shall report the matter to the provincial director who may refer the matter to the minister or other appropriate authority and to the treasurer of the law society.

87/78 s150

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Investigation and disposition of complaints re solicitors

   153. (1) Where an area director receives a complaint that a solicitor has failed to carry out his or her duties with respect to legal aid, he or she shall investigate the complaint and shall report the complaint and the results of his or her investigation to the provincial director.

             (2)  Where the provincial director receives a complaint that a solicitor has failed to carry out his or her duties with respect to legal aid, he or she may investigate the complaint or may refer the complaint to the appropriate area director.

             (3)  Where the provincial director receives a report of an investigation into a complaint, he or she may make further investigation that he or she considers appropriate and may deliver the complaint, report and the results of an investigation to the commission and to the treasurer of the law society, that he or she considers necessary.

87/78 s151

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Form of security for debts

   154. (1) Where a person is obligated to pay an amount to the commission under the Act and the Act authorizes security to be taken, the debt may be secured by the deposit of the forms of legal security that are approved by the provincial director.

             (2)  Where a person secures an obligation to the commission in a manner authorized in subsection (1), the provincial director or his or her agent shall prepare a memorandum of the transaction in a form prescribed by the minister and shall deliver a copy of the memorandum to the person securing the obligation to the commission.

87/78 s152

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Oath or affirmation required

   155. Under section 58 of the Act, all persons employed by the commission or appointed under the provisions of the Act and of these regulations including

             (a)  the provincial director, area directors, staff solicitors, articled students and legal aid agents;

             (b)  all other professional, clerical and technical staff; and

             (c)  members of the board, the appeal board and members of committees or subcommittees appointed under the Act or these regulations,

shall, before assuming or performing his or her duties, swear or affirm the following oath or affirmation of office and secrecy:

"I ........................................ do solemnly and sincerely swear (affirm) that I shall faithfully and honestly fulfil the duties which devolve upon me as an employee of the Newfoundland and Labrador Legal Aid Commission (or as an appointee under the Legal Aid Act or the regulations) and that I shall not without due authority in that behalf disclose or make known a matter which comes to my knowledge by reason of my holding office as that employee (or appointee)." (Where an oath is taken, add "So help me God".).

SWORN TO OR AFFIRMED
________________________
at ______________________
in the Province of Newfoundland and Labrador
_________________, 19____
before me:
____________________________
Commissioner, Notary or Barrister

87/78 s153; 2001 c42 s45

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Fidelity insurance

   156. The commission may procure and maintain a policy of fidelity insurance covering the employees that the commission may determine and a premium payable shall be paid out of the fund.

87/78 s154

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Appointment of committees and subcommittees

   157. (1) The commission may, to assist in carrying out the provisions of the Act, appoint the committees and subcommittees that it considers necessary and advisable.

             (2)  Upon the appointment of a committee or subcommittee the commission shall set the terms of reference for the committee or subcommittee and shall designate one of its members to be chairperson.

87/78 s155

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Out-of-town agents

   158. (1) A solicitor authorized to provide legal services under the Act may engage an out-of-town agent to perform the services which the solicitor is authorized to perform.

             (2)  An agent engaged under this section shall be paid his or her fees and disbursements in accordance with the schedules of fees and disbursements to these regulations, however, in no case shall the agent be entitled to be paid more than the solicitor would be entitled to be paid for the services performed without the prior approval of the provincial director.

87/78 s156

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Repeal

   159. The Legal Aid Regulations, 1976, Newfoundland Regulation 87/78, are repealed.

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Schedule A

Schedule of Fees in Criminal, Quasi - Criminal and Civil Matters

Legal aid tariff

        1. This Schedule is a legal aid tariff reflecting fees that are considered to be reasonable for the services provided taking into consideration the experience of the solicitor and the nature and complexity of the case.

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Taxation of account

        2. In taxing an account, the taxing officer shall take into consideration all the circumstances of the case, including

             (a)  the result obtained;

             (b)  the complexity of the matter;

             (c)  the nature of the work done;

             (d)  the importance of the matter to the client;

             (e)  the solicitor's degree of skill and competence;

             (f)  the number of similar or related matters handled for any one or more clients by the solicitor and whether or not they are dealt with at around the same time;

             (g)  the length of the trial or hearing;

             (h)  the amount of court time saved;

              (i)  the amount of money saved by the Legal Aid Commission;

              (j)  the time necessarily spent;

             (k)  whether or not the solicitor has been successful in recovering costs;

              (l)  the extent to which the matter had progressed before a settlement or an agreement was reached;

           (m)  what a reasonable person of moderate means would be prepared to pay a solicitor to pursue a similar matter; and

             (n)  any other factor the taxing officer reasonably considers relevant.

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Increase in maximum hours

        3. (1) A solicitor may apply in writing to the provincial director for a preauthorized increase in the maximum number of allowable hours for a matter where upon initial review of the file the solicitor is of the opinion that the maximum number of allowable hours stated in the certificate is insufficient to complete the matter.

             (2)  Notwithstanding subsection (1), where the need for an increase in the maximum number of allowable hours stated in the certificate could not have been reasonably foreseen upon initial review of the file a solicitor may, as soon as the need for additional hours becomes apparent, apply in writing to the provincial director for a preauthorized increase in the maximum number of allowable hours.

             (3)  The provincial director may prescribe the form and content of the preauthorized application for an increase in the maximum number of allowable hours.

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Maximum hours exceeded

        4. A solicitor submitting an account in which the maximum number of allowable hours have been exceeded, whether or not doing so was preauthorized by the provincial director, shall justify the account having regard to the criteria in section 2.

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Accounts in duplicate, signed

        5. Accounts shall be prepared in duplicate and signed by the solicitor or firm submitting the account.

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Separate account

        6. A separate account shall be submitted for each legal aid client except accounts for duty counsel services.

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Representation of multiple clients

        7. If a solicitor is representing 2 or more persons for similar or related matters or for appearances in court that occur at the same time and one of them is a private client, this fact shall be disclosed in the solicitor's account.

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Hourly rates

        8. (1) The maximum hourly rates contained in Section 2 of Schedule B are divided into categories which indicate the rates to be paid to solicitors based on the number of years a solicitor has been a member of the bar association of the province, another province or another jurisdiction recognized by the commission.

             (2)  Upon receipt of a file a solicitor may apply in writing to the provincial director for a preauthorized increase in the maximum hourly rate contained in section 2 of Schedule B.

             (3)  The provincial director may authorize an increase in the maximum hourly rate where he or she is satisfied that exceptional circumstances exist that require an increase in the maximum hourly rate.

             (4)  The provincial director may prescribe the form and content of the preauthorized application for an increase in the maximum hourly rate.

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Itemization of accounts

        9. All accounts shall be itemized by date, service performed and time spent.

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Proof

      10. The taxing officer may require proof and justification of all items included in an account.

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Interim accounts, disbursements

      11. Interim accounts may be rendered when the unbilled account balance, exclusive of disbursements, exceeds $500 and at other times that the provincial director may permit.

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Reasonable fee

      12. In a matter not dealt with by this Schedule, the taxing officer shall allow a reasonable fee and, in determining the fee properly payable in respect of the matter, the taxing officer shall have regard to this Schedule for comparable services.

88/15 s1

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Schedule B

Fees

Definition

        1. In this Schedule of Fees the following definitions apply:

             (a)  attendance in court means attendance in court or a judge's chambers and waiting at the court house for either;

             (b)  preparation means a service performed on behalf of a client other than attendance in court; and

             (c)  appeals include prerogative writ and charter of rights applications.

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Maximum hourly rate

        2. (1) The maximum hourly rate chargeable by a solicitor for preparation or attendance in court, including travel, is as follows:

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(a)

for articled students

50

(b)

for solicitors who are members of the bar for less than 5 years

120

(c)

for solicitors who are members of the bar for at least 5 years but less than 10 years

125

(d)

for solicitors who are members of the bar for 10 years or more

135

             (2)  For the purposes of subsection (1), travel includes in transit waiting time.

Maximum hours

        3. (1) The maximum number of hours for preparation in criminal and quasi-criminal matters are as follows:

(a)

for all offences within the exclusive jurisdiction of the Supreme Court and dangerous offender applications

200

(b)

for all offences before a judge and jury

100

(c)

for all indictable offences before a judge alone

50

(d)

for all summary conviction offences

20

(e)

for all bail, bail review and bail variations before any level of court

20

(f)

for young offenders

 

 

(i)

all offences and bail applications are to be taxed as if the young offender was an adult

 

 

(ii)

transfer hearings

50

 

(iii)

review of disposition

10

             (2)  The maximum number of hours for preparation in civil matters are as follows:

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(a)

for divorce

7

(b)

for maintenance

20

(c)

for all custody matters except custody proceedings referred to in paragraphs (e) and (f)

40

(d)

for all child access matters except custody proceedings referred to in paragraphs (e) and (f)

20

(e)

for temporary custody proceedings under the Child Youth Care and Protection Act

30

(f)

for continuous custody proceedings under the Child Youth Care and Protection Act

60

(g)

for all other civil actions

20

(h)

for appeals

 

 

(i)

before the Trial Division

50

 

(ii)

sentence appeals before the Court of Appeal

40

 

(iii)

all other appeals before the Court of Appeal

75

 

(iv)

bail pending appeal

10

 

(v)

Supreme Court of Canada

100

(i)

before an administrative boards and other tribunals

30

(j)

for appeals from administrative boards and other tribunals

 

 

(i)

to the Trial Division

40

 

(ii)

to the Court of Appeal, Federal Court or Federal Court of Appeal

60

 

(iii)

to the Supreme Court of Canada

100

Maximum hours per day

        4. The maximum number of hours chargeable in a day for

             (a)  appearances in court or appearances before another tribunal, including waiting time and delays of court proceedings, is 7 hours a day ; and

             (b)  actual time spent travelling to and from the solicitor's ordinary place of business, including in transit waiting time, is 7 hours a day.

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Mileage, meals and accommodations

        5. Mileage, meals and accommodations shall be paid in accordance with amounts paid by the provincial government to its employees.

88/15 s1

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Schedule C

Solicitor's Out-of-Pocket Disbursements

             Every solicitor who has rendered legal aid shall be entitled to be paid in accordance with this Schedule the following out-of-pocket disbursements actually and reasonably incurred:

             (a)  disbursements, not being witness fees, required or permitted to be made under a statute, rule having statutory authority, regulation or order-in-council;

             (b)  witness fees and travelling expenses of witnesses in accordance with the statute, rule or regulation under which the proceeding is brought, and if no provision is made for witness fees, then in accordance with the scale of costs as set out in the Rules of Supreme Court, 1986 ;

             (c)  fees payable for a transcript of evidence taken on a preliminary inquiry, reasons for judgment or evidence for use on an appeal authorized by the regulations to be taken;

             (d)  subject to Schedules A and B, a solicitor's travelling expenses where the distance travelled is more than 16 kilometres one way from the solicitor's ordinary place of business, and the solicitor satisfies the taxing officer that the travel was reasonable and necessary under the circumstances;

             (e)  telephone and telecommunications charges;

             (f)  subject to section 158 of the regulations, the fees and out-of-pocket disbursements of his or her out-of-town agent in the province for routine attendance and services, except where the agent is acting as counsel;

             (g)  postage or courier charges;

             (h)  notwithstanding paragraph (b), with the prior approval of the provincial director, the services of a person entitled by law or practice to give expert or opinion evidence may be engaged and the reasonable and proper fees paid at the rate specified by the provincial director in his or her authorization; and

              (i)  with the prior approval of the provincial director or taxing officer, any other proper out-of-pocket disbursements, including a deposit or other proper payment that may be required, made in furtherance of the proceeding or matter, which approval shall, except in an emergency, be obtained before the disbursements being made.

88/15 s1

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Schedule D

Areas

             With reference to the provincial electoral district boundaries contained in the House of Assembly Act and the Electoral Boundaries Act , the province, for the purposes of the Act and these regulations, is divided into the following areas:

 

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AREA 1
(serviced by
St. John's office)

ST. JOHN'S: Cape St. Francis, Conception Bay East & Bell Island, Conception Bay South, Kilbride, Mount Pearl, St. John's Centre, St. John's East, St. John's North, St. John's South, St. John's West, Signal Hill - Quidi Vidi, Topsail, Virginia Waters, Waterford Valley

AREA 2
(serviced by
St. John's office)

AVALON SOUTH: Ferryland, Placentia & St. Mary's

AREA 3
(serviced by
Carbonear office)

HARBOUR GRACE: Carbonear - Harbour Grace, Harbour Main - Whitbourne, Trinity - Bay de Verde, Port de Grave

AREA 4
(serviced by
Clarenville office)

TRINITY NORTH: Bellevue , Bonavista South, Terra Nova, Trinity North

AREA 5
(serviced by
Gander office)

BONAVISTA NORTH: Bonavista North, Gander , Lewisporte, Twillingate & Fogo

AREA 6
(serviced by
Grand Falls - Windsor office)

GRAND FALLS : Exploits, Grand Falls - Buchans, Windsor - Springdale , Fortune Bay - Cape La Hune

AREA 7
(serviced by
Marystown office)

BURIN: Burin - Placentia West, Grand Bank

AREA 8
(serviced by
Corner Brook office)

CORNER BROOK: Bay of Islands, Baie Verte, Humber East, Humber Valley , Humber West, St. Barbe, The Straits & White Bay North

AREA 9
(serviced by
Stephenville office)

STEPHENVILLE: Burgeo & La Poile, Port au Port, St. George's - Stephenville East

AREA 10
(serviced by
Happy Valley office)

LABRADOR: Cartwright - L'Anse au Clair, Labrador West, Lake Melville , Torngat Mountains

87/78 Sch VI

Schedule E

Rules for Determining Financial Eligibility

             In determining an applicant's financial eligibility for legal aid the commission shall apply flexible rules which take into account whether the applicant can retain counsel at his or her own expense without that person or his or her dependents suffering undue financial hardship as incurring heavy indebtedness or being required to dispose of modest necessary assets. The commission shall require a recipient of legal aid to contribute toward the cost of that assistance to the extent that, in the opinion of the commission, the recipient can do so without suffering undue hardship. In determining an applicant's financial eligibility the following rules shall apply:

Definitions

        1. In these rules

             (a)  "adult" means a person 16 years of age or over;

             (b)  "applicant" means a person who has applied for legal aid under the Act and regulations;

             (c)  "dependent" means a dependent child or a dependent adult;

             (d)  "disposable income" means the income of an applicant, his or her spouse and dependents after deducting from income calculated under section 3 the living expenses calculated under section 4;

             (e)  "dependent adult" means an adult who is substantially supported by the applicant and includes the spouse;

             (f)  "dependent child" means a person under 16 years of age living with or supported by the applicant;

             (g)  "liquid assets" includes cash, bonds, stocks, debentures, other assets that can be converted readily into cash and includes the beneficial interest in assets held in trust and available to be used for maintenance, but does not include real property or the amount remaining to be paid under a mortgage or agreement of sale or the cash surrender value of a life insurance policy;

             (h)  "spouse" means an adult living with the applicant as a spouse, regardless of legal marital status.

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Ability to pay

        2. The ability of an applicant to pay no part, some part or the whole of the cost of the legal aid applied for shall be determined with reference to the assets and liabilities, income and expenses of the applicant, his or her spouse and his or her dependents.

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Income

        3. For the purpose of determining the income of the applicant, his or her spouse and dependents, income includes

             (a)  salaries, wages and commissions;

             (b)  business, professional farming, fishing and rental income after deducting reasonable expenses;

             (c)  investment income;

             (d)  pensions received under the Old Age Security Act (Canada ) and the Canada Pension Plan Act;

             (e)  allowances received under the War Veterans Allowances Act (Canada ) or under the Civilian War Pensions and Allowances Act (Canada );

             (f)  Workers' Compensation Board payments received under the Workplace Health, Safety and Compensation Act;

             (g)  unemployment insurance benefits received under the Employment Insurance Act (Canada );

             (h)  alimony, separation or maintenance payments;

              (i)  40% of the income received from a person for board;

              (j)  regular payments received under an annuity, pension or insurance scheme;

             (k)  regular payments received from a mortgage, agreement of sale or loan agreement; and

              (l)  welfare or social assistance payments received from the province or other welfare agency.

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Reasonable living expenses

        4. For the purposes of determining the requirements and living expenses of the applicant, his or her spouse and his or her dependents, reasonable living expenses include

             (a)  a basic living allowance for purposes of meeting the cost of food, clothing, household supplies and personal requirements;

             (b)  a reasonable amount for shelter expenses including, where applicable, rent, mortgage, principal and interest, property taxes, property insurance and necessary maintenance;

             (c)  utilities including fuel, hydro, water and telephone;

             (d)  transportation expenses necessary to the earning of income or attendance at school exclusive of depreciation of motor vehicles;

             (e)  medical, optical, dental and hospital costs including payments made to a recognized medical or hospital insurance scheme;

             (f)  life insurance premiums;

             (g)  instalment payments on debts incurred before the date of application for legal aid; and

             (h)  other expenses that are approved by the provincial director.

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Presumption of qualification

        5. An applicant who is in receipt of a benefit from the Department of Social Services under the Social Assistance Act for which he or she has satisfied a needs test shall be considered to financially qualify for legal aid without otherwise meeting the requirements of this Schedule.

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Ability to contribute

        6. In determining whether an applicant can pay no part, some part or the whole of the cost of the legal aid applied for, an area director shall consider

             (a)  in respect of disposable income available, that the applicant has available for contribution a sum equal to the monthly amount of disposable income available, multiplied by 18 or the annual amount of disposable income available multiplied by 1 1/2;

             (b)  in respect of liquid assets, that the applicant has available for contribution the aggregate of the full value of the liquid assets owned by him or her, his or her spouse and his or her dependents after deducting from that amount the value of the debts and liabilities of the applicant, his or her spouse and his or her dependents which shall be paid from these liquid assets other than encumbrances on real property and the debts referred to in paragraph 4(g) of these rules;

             (c)  in respect of any interest or estate owned by the applicant, his or her spouse or dependents in real property used by the applicant as his or her own dwelling place, that the applicant has available for contribution a portion of the value of the estate or interest that, in the opinion of the area director, exceeds the needs of the applicant, his or her spouse and dependents, after deducting from that amount the value of all encumbrances and the necessary expenses of disposition of those encumbrances;

             (d)  in respect of any interest or estate owned by the applicant, his or her spouse or dependents in other real property, that the applicant has available for contribution the full value of the interest or estate after deducting the value of all encumbrances and the necessary expenses of the disposition of those encumbrances; and

             (e)  in respect of any interest owned by the applicant, his or her spouse or his or her dependents in a motor vehicle or other chattel, that the applicant has available for contribution a portion of that interest that, in the opinion of the area director, exceeds the needs of the applicant, his or her spouse and dependents.

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Assignment or transfer of property or interest

        7. Where within 12 months preceding the date of application or at any date subsequent an applicant, spouse or dependent of an applicant has made or makes an assignment or transfer of any interest in liquid assets or real property and, in the opinion of the area director, the consideration for the assignment or transfer was or is inadequate and the assignment or transfer was made or is made for the purpose of qualifying the applicant for legal aid, the area director may determine that the applicant can pay an increased part of the cost of the legal aid taking into account the value of the asset or property so assigned or transferred less the value of the consideration received.

87/78 Sch VII 10/86 s3; 2009 c31 s10; 2017 c10 s19

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Schedule F

Non-Resident Applications

             For the purpose of paragraph 22(b) of the regulations the following terms shall apply:

Request for legal aid

        1. The request for legal aid is to be made in the applicant's province of residence to a recognized legal aid authority in that province.

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Financial eligibility

        2. Financial eligibility is to be determined in the applicant's province of residence under the criteria in effect in the province.

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Applicant subject to Act

        3. Once the request has been accepted, the applicant becomes subject to the provisions of the Act.

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Free legal aid

        4. The applicant, once accepted, shall receive free legal aid under the Act.

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Services to non-residents

        5. The services rendered to non-residents shall be the same as those rendered to residents of the province.

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Security for costs against non-residents

        6. Whenever a petition for security for costs is made against a non-resident, the legal aid authority of the province of residence of the legal aid beneficiary shall deposit the security.

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Travelling and accommodation

        7. Travelling and accommodation expenses incurred by a legal aid beneficiary who is requested to appear before a court sitting in the province shall not be reimbursed by the commission.

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Services not to be billed

        8. The commission shall not bill the legal aid authority in the province of residence for services rendered.

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Provincial director

        9. The provincial director shall be responsible for dealing with applications or requests under section 22 of the regulations and all requests shall be directed to him or her.

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Province

      10. In this Schedule the term "province" includes a territory of Canada .

87/78 Sch VIII