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RSNL1990 CHAPTER L-11

LEGAL AID ACT

Amended:

1996 cR-10.1 s40; 1996 c9; 1996 cH-1.1 s195; 1997 c13 s35;
2001 cN-3.1; 2006 c40 s21; 2008 c25; 2009 c13; 2012 c16; 2015 c11

CHAPTER L-11

AN ACT RESPECTING A PLAN OF LEGAL AID FOR THE PROVINCE

Analysis


              PART I
INTERPRETATION AND ADMINISTRATION

       
1.   Short title

       
2.   Definitions

              PART II
THE NEWFOUNDLAND AND LABRADOR LEGAL AID COMMISSION

       
3.   Legal Aid Commission

       
4.   Chairperson

       
5.   Meetings of board

       
6.   Quorum

       
7.   Payment to members of board

       
8.   Powers of commission

       
9.   Head office

     
10.   Seal

     
11.   Provincial director

     
12.   Staff of commission

   
12.1   Indemnification of staff solicitors

     
13.   Powers of commission

     
14.   Borrowing power limited

     
15.   Legal aid plan

     
16.   Commission reports to minister

     
17.   Commission responsible

              PART III
FINANCIAL

     
18.   Legal aid fund

     
19.   Payments to commission

     
20.   Commission may accept grants

     
21.   Financial year

     
22.   Annual financial statement to minister

     
23.   Audit

     
24.   Reports to be laid before House of Assembly

     
25.   Annual budgets

     
26.   Approval needed to exceed budget

              PART IV
ADMINISTRATIVE PLAN

     
27.   Province may be divided into areas

     
28.   Area directors

     
29.   Legal aid centres

     
30.   Counsel may be appointed

     
31.   Solicitor may be appointed

     
32.   Commission to distribute cases equitably

     
33.   Panels

     
34.   Solicitor on appropriate panel

     
35.   Costs to be taxed

              PART V
LEGAL AID PLAN

     
36.   When legal aid provided

     
37.   Aid may be granted

     
38.   Application for legal aid

     
39.   No aid unless applicant has certificate

     
40.   Aid for non-resident

     
41.   Duties of area director

     
42.   Refusal of legal aid

     
43.   Notice to client

     
44.   Agreement re contribution by client

     
45.   Payment of costs to commission

     
46.   Definition of costs to commission

              PART VI
COVERAGE

     
47.   Coverage

     
48.   Legal aid in summary conviction matters

     
49.   Rep. by 2009 c13 s1

     
50.   Aid where accused elects manner of trial

     
51.   No legal aid

     
52.   Legal aid in an appeal

              PART VII
APPEALS FROM REFUSAL TO GRANT
LEGAL AID

     
53.   Appeals to provincial director

              PART VIII
GENERAL

     
54.   Agreement with Government of Canada

     
55.   No action against minister

     
56.   Commission not considered to practise law

     
57.   Solicitor subject to rules

     
58.   Secrecy

     
59.   Legal aid plan non-profit

     
60.   Tariff of fees

     
61.   Law students

     
62.   Collection of debts

     
63.   Assistance in other projects

              PART IX
OFFENCE AND PENALTIES

     
64.   Offences

     
65.   General offence provision

     
66.   Suspension

              PART X
REGULATIONS

     
67.   Regulations


PART I
INTERPRETATION AND ADMINISTRATION

Short title

        1. This Act may be cited as the Legal Aid Act.

1975 No42 s1

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Definitions

        2. In this Act

             (a)  "appeal board" means the board established by the regulations to hear appeals under section 53 of this Act;

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

             (c)  "application" means an application for legal aid;

             (d)  "area" means a part of the province designated by the regulations as an area for the purposes of this Act;

             (e)  "area director" means an area director appointed under this Act, and, where no area director has been appointed for an area, the provincial director;

             (f)  "auditor general" means the auditor general of the province;

             (g)  "board" means the board of commissioners appointed under this Act;

             (h)  "certificate" means a legal aid certificate or provisional legal aid certificate issued under this Act;

              (i)  "commission" means the Newfoundland and Labrador Legal Aid Commission continued under this Act;

           (i.1)  "department" means the department presided over by the minister;

              (j)  "duty counsel" means a person appointed under section 30 of this Act;

             (k)  "fund" means the legal aid fund established under this Act;

              (l)  "law society" means the Law Society of Newfoundland;

           (m)  "legal aid" means professional services provided under this Act and the regulations;

             (n)  "legal aid agent" means a representative of the commission appointed under this Act;

             (o)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (p)  "panel" means a panel of solicitors established under this Act;

             (q)  "person" means a natural person;

              (r)  "provincial director" means the provincial director of legal aid appointed under this Act;

             (s)  "resident" means a person who is ordinarily resident in the province and who is

                      (i)  lawfully entitled to be or remain in Canada , or

                     (ii)  illegally in Canada but awaiting adjudication of his or her immigration or citizenship status;

              (t)  "solicitor" means a member of the law society entitled to practise law in the province and includes a "barrister";

             (u)  "staff solicitor" means a solicitor employed by the commission on a full-time basis;

             (v)  "tariff" means the tariff of fees prescribed in the regulations; and

            (w)  "taxing master" means a taxing master of the Supreme Court.

1975 No42 s2; 2001 cN-3.1; 2006 c40 s21; 2015 c11 s1

PART II
THE NEWFOUNDLAND AND LABRADOR LEGAL AID COMMISSION

2001 cN-3.1

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Legal Aid Commission

        3. (1) The Newfoundland and Labrador Legal Aid Commission is continued as a corporation.

             (2)  The affairs of the commission shall be managed by a board of commissioners consisting of

             (a)  7 members appointed by the Lieutenant-Governor in Council;

             (b)  the deputy minister of the department; and

             (c)  the provincial director.

             (3)  Three members of the board shall be appointed from a list of 5 persons to be submitted by the law society at the request of the minister.

             (4)  A member of the board, other than the Deputy Minister of Justice and the provincial director, shall hold office during pleasure for the term of 2 years from the date of his or her appointment and is eligible for reappointment.

         (4.1)  Where the term of office of a member of the board expires, he or she continues to be a member of the board until reappointed or replaced.

             (5)  Where a vacancy occurs in the board in respect of the unexpired term of office of a member appointed in accordance with subsection (3), the Lieutenant-Governor in Council may, from a current list submitted by the law society at the request of the minister, appoint another person to fill the vacancy for the balance of the unexpired term.

             (6)  Where a vacancy occurs in the board in respect of the unexpired term of office of another member appointed by the Lieutenant-Governor in Council, the Lieutenant-Governor in Council may appoint another person to fill the vacancy for the balance of the unexpired term.

1975 No42 s4; 2001 c42 s2; 2001 cN-3.1; 2015 c11 s2

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Chairperson

        4. (1) The Lieutenant-Governor in Council shall designate 1 of the members of the board to be chairperson and the members shall select another member to be vice-chairperson.

             (2)  The chairperson of the board shall keep regular minutes of the board and shall ensure that complete books of accounts and records are kept.

1975 No42 s5

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Meetings of board

        5. (1) The board shall hold a meeting at least once in each month except when the chairperson considers a meeting unnecessary.

             (2)  Where a member of the board, other than the deputy minister of the department and the provincial director, without giving a reasonable explanation to the chairperson, fails to attend 3 consecutive meetings of the board, he or she stops being a member of the board.

             (3)  A member of the board may participate in a meeting of the board by means of telephone or another telecommunications device that permits all persons participating in the meeting to communicate with each other.

1975 No42 s6; 2015 c11 s3

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Quorum

        6. (1) A majority of the members of the board shall constitute a quorum.

             (2)  Where, at a meeting of the board, there is an equality of votes, inclusive of his or her own vote, the member presiding has a 2nd or casting vote.

             (3)  The chairperson or, in his or her absence, the vice-chairperson shall preside at all meetings of the board and his or her decision on all points of order shall be final.

             (4)  Where both the chairperson and vice-chairperson are absent from a meeting of the board, the other members of the board present shall appoint a temporary chairperson who has and may exercise the powers and shall carry out the duties of the chairperson at the meeting.

1975 No42 s7

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Payment to members of board

        7. The Lieutenant-Governor in Council may authorize the payment of remuneration and expenses to some or all of the members of the board.

1975 No42 s8

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Powers of commission

        8. (1) The exercise of the powers of the commission shall not be impaired because of a vacancy in the membership of the board.

             (2)  All acts done by the board shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment or qualification of a person purporting to be a member of the board, be as valid as if the defect had not existed.

1975 No42 s9

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Head office

        9. (1) The head office of the commission shall be in the City of St. John's .

             (2)  The commission may establish other offices and agencies in the province that it considers expedient.

1975 No42 s10; 2015 c11 s4

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Seal

      10. (1) The commission shall obtain and maintain a seal at its head office.

             (2)  The application of the common seal of the commission shall be signed by 2 of the following:

             (a)  the chairperson;

             (b)  the vice-chairperson;

             (c)  the provincial director; or

             (d)  other persons that are approved by resolution of the commission.

             (3)  A contract or instrument which, if entered into or executed by a person not being a corporation, would not be required to be under seal may be entered into or executed on behalf of the commission by a person generally or specially authorized by it for that purpose.

             (4)  A document purporting to be a document executed or issued under the seal of the commission or on behalf of the commission shall, until the contrary is proved, be considered to be a document so executed or issued.

1975 No42 s11

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Provincial director

      11. (1) The commission may appoint a provincial director of legal aid and fix that person's salary.

             (2)  The provincial director is, subject to the commission, the chief executive officer of the commission and is charged with the general direction, supervision and control of the business of the commission and has those other powers, duties and functions that are or may be conferred on him or her by this Act, the regulations or the commission.

1975 No42 s12; 1979 c52 s1

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Staff of commission

      12. The commission may establish posts for and appoint those technical and professional and other employees and workers that it considers necessary, and fix their remuneration and terms of service and prescribe their duties and functions.

1979 c52s 2

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Indemnification of staff solicitors

   12.1 (1) In this section

             (a)  "claim" includes a suit;

             (b)  "indemnification" means a payment made as a result of a claim;

             (c)  "insurance policy" means a policy for professional liability insurance for the benefit of members;

             (d)  "insurance premium" means the portion of annual practice fees prescribed by section 82 of the Law Society Act which is for the purpose of purchasing an insurance policy, but does not include the portion collected by the society for a special fund under section 21 of the Law Society Act ;

             (e)  "insured" means a member who is an insured under an insurance policy;

             (f)  "insurer" means an insurer under an insurance policy;

             (g)  "member" means member as defined in the Law Society Act and for the purpose of subsection (4) includes a former member;

             (h)  "rules" means rules as defined in the Law Society Act ; and

              (i)  "society" means society as defined in the Law Society Act .

             (2)  Notwithstanding the Law Society Act or the rules, a member who

             (a)  is a staff solicitor; and

             (b)  does not practise law outside the scope of his or her employment with the commission,

is exempt from paying an insurance premium.

             (3)  The Crown shall provide an indemnification to a member referred to in subsection (2), to the same extent, in the same manner, and with the same limitations that an insured would have been provided an indemnification under an insurance policy.

             (4)  The Crown shall continue to provide an indemnification under subsection (3), in respect of a claim, where the events giving rise to that claim occurred while the member

             (a)  was a staff solicitor; and

             (b)  did not practise law outside the scope of his or her employment with the commission.

             (5)  With respect to an indemnification given under subsection (3) or (4),

             (a)  a member referred to in subsection (2) or (4) shall have the same rights, duties, limitations, responsibilities and liabilities to the Crown as an insured would have to an insurer under an insurance policy; and

             (b)  the Crown shall have the same rights, duties, limitations, responsibilities and liabilities to a member referred to in subsection (2) or (4), as an insurer would have to an insured under an insurance policy.

             (6)  Where a claim is made against a member referred to in subsection (2) or (4), an indemnification under subsection (3) or (4) does not apply where the events giving rise to the claim occurred before July 1, 1996 .

             (7)  A reference to an insurance policy in this section shall be considered to refer to the insurance policy which exists at the time the events giving rise to a claim occur.

             (8)  This section comes into force on July 1, 1996 .

1996 c9 s1

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Powers of commission

      13. The commission may

             (a)  purchase, lease or otherwise acquire land or personal property, or an interest in them, which the commission considers necessary, convenient or advisable to acquire for or incidental to the exercise of the powers, functions or duties of the commission;

             (b)  receive lands, buildings, money or other property, by way of gift or trust for public uses or for the use of the commission;

             (c)  sell, improve, manage, exchange, lease, mortgage, charge, dispose of, turn to account, grant a term easement, right or interest in, over or affecting, otherwise deal with, all or a part of the property and rights of the commission;

             (d)  draw, make, accept, endorse, execute and issue promissory notes, bills of exchange and other negotiable or transferable instruments; and

             (e)  generally do all things which the commission considers necessary, convenient or advisable for or incidental to the exercise of the powers, functions and duties of the commission.

1975 No42 s14

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Borrowing power limited

      14. The commission shall not borrow money unless authorized by the minister to do so.

1975 No42 s15

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Legal aid plan

      15. The commission shall, under this Act and the regulations, take the action that it considers necessary for the establishment and administration of a plan of legal aid for residents of the province.

1975 No42 s16

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Commission reports to minister

      16. The commission shall, through its chairperson, report to the minister, whenever the minister so requires, with respect to its progress and activities and submit to the minister the reports and estimates that the minister may require.

1975 No42 s17

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Commission responsible

      17. The commission is responsible to the minister.

1975 No42 s18

PART III
FINANCIAL

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Legal aid fund

      18. (1) The commission

             (a)  shall establish and maintain a fund to be known as the legal aid fund, and all money and revenues of the commission, including all money appropriated by the Legislature for the fund and all costs awarded to recipients of legal aid who are required to pay a part of its cost, shall be paid into the fund;

             (b)  shall keep those accounts and records of the transactions of the fund that the regulations prescribe; and

             (c)  has full authority to administer all the money deposited to the credit of the fund for the purpose of this Act.

             (2)  The commission shall, subject to the regulations, pay out of the fund

             (a)  expenses attributable to the establishment and administration of the legal aid plan, including expenses and allowances of members of the board and members of committees, salaries, allowances, retainers, office expenses, travelling expenses, advertising expenses, insurance premiums, superannuation contributions or contributions to pension plans that benefit the persons employed by the commission in the administration of this Act or to which the persons may contribute;

             (b)  the fees and appropriate disbursements of solicitors for legal aid;

             (c)  a refund authorized by this Act of a contribution to the fund;

             (d)  money required for the purpose of this Act; and

             (e)  other sums that are authorized by this Act and the regulations to be paid out of the fund.

1975 No42 s19

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Payments to commission

      19. The minister may, from money voted by the Legislature for the purpose, make available and pay to the commission funds for the proper carrying out of its powers, functions and duties.

1975 No42 s20

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Commission may accept grants

      20. Nothing in this Act shall prevent the commission from receiving and accepting money that may be paid to it by way of grant, contribution or reimbursement from a source, if it receives the money to help it in the attainment of its objects or in the proper exercise of its powers, functions or duties or to reimburse it for disbursements made by it or on its behalf.

1975 No42 s21

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Financial year

      21. The financial year of the commission shall correspond to the financial year of the province.

1975 No42 s22

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Annual financial statement to minister

      22. (1) The commission shall, not later than September 30 in each year, prepare and submit to the minister a financial statement setting out the assets and liabilities of the commission and the receipts and expenditures of the commission for the previous financial year, together with a report concerning the work of the commission during the previous financial year.

             (2)  The financial statement referred to in subsection (1) shall be signed by the chairperson and the provincial director and certified by the auditor general.

1975 No42 s23

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Audit

      23. (1) The auditor general shall audit the accounts of the commission and may request the books, vouchers, records and documents that he or she considers necessary for the audit and the commission shall comply with that request.

         (1.1)  The commission's compliance with subsection (1) shall not constitute a breach or waiver of solicitor-client privilege even where the books, vouchers, records and documents contain names and information of clients or applicants.

             (2)  Where the auditor general makes an interim examination of the accounts of the commission during the course of a financial year, he or she shall submit a report of the examination to the chairperson of the commission and to the minister.

1975 No42 s24; 2015 c11 s5

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Reports to be laid before House of Assembly

      24. The minister shall lay the reports referred to in subsection 23(1) before the House of Assembly, if it is in session or, if it is not, then at the next session.

1975 No42 s25

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Annual budgets

      25. (1) The commission shall, not later than September 30 in each financial year, prepare and adopt and submit to the minister a budget containing estimates of all sums required during the next financial year for the purposes of the commission, and in each budget there shall be set out the estimated revenue and expenditure in the detail and in the form that the minister prescribes.

             (2)  Where in a financial year it appears that the actual revenue or expenditure of the commission is likely to be substantially greater or less than estimated in its budget, the commission may, and, where required by the minister, shall submit to him or her a revised budget containing the particulars required under subsection (1), and, in addition, the particulars of actual receipts and payments and outstanding liabilities up to the date of submission.

             (3)  The minister may disapprove or, subject to the approval of the Lieutenant-Governor in Council, approve a budget submitted by the commission.

             (4)  Where the minister requires the commission to submit a revised budget under subsection (2), he or she may notify the commission that the approval given in respect of a budget previously submitted is withdrawn and in each case shall state the date upon which the withdrawal takes effect.

1975 No42 s26

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Approval needed to exceed budget

      26. Except with the approval of the Lieutenant-Governor in Council, the commission shall not in a year incur, enter upon, or contract or become liable for an expenditure or indebtedness beyond or in excess of the estimated amount of expenditure set out in an approved budget.

1975 No42 s27

PART IV
ADMINISTRATIVE PLAN

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Province may be divided into areas

      27. The commission may divide the provinces into areas for the provision of legal services.

2015 c11 s6

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Area directors

      28. (1) The commission may appoint, on a full-time or part-time basis, a solicitor to act as an area director.

         (1.1)  An area director appointed under subsection (1) shall perform the powers, duties and functions conferred on him or her by the provincial director.

             (2)  The commission may appoint representatives to be known as legal aid agents and the duties of a legal aid agent shall include

             (a)  the making available to residents of his or her community and surrounding areas of application forms for legal aid and helping applicants in completing the required forms;

             (b)  the distribution of information concerning legal aid to the residents of his or her community and surrounding areas; and

             (c)  other duties entrusted to him or her by this Act and the regulations.

             (3)  Legal aid agents, while they hold the office and by virtue of their office, are empowered to take and receive statutory declarations, and each of them shall write or stamp his or her signature on declarations made before him or her the words "A Legal Aid Agent acting under the Legal Aid Act".

1975 No42 s29; 2015 c11 s7

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Legal aid centres

      29. The commission may establish and maintain neighbourhood legal aid centres as prescribed by the regulations.

1975 No42 s30

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Counsel may be appointed

      30. The commission may appoint counsel, as prescribed by the regulations, to attend in a court, administrative board or tribunal in the province on a daily or other basis that may be required, for the purpose of representing a person in a civil matter, an administrative law matter, or a person charged with a criminal offence or who is being detained or is under arrest.

2012 c16 s1

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Solicitor may be appointed

      31. (1) An applicant who is found eligible for legal aid may be provided with the professional services of a solicitor in the employ of the commission.

             (2)  [Rep. by 2008 c25 s1]

             (3)  The commission may provide, in certain circumstances and taking into account the requirements of good management, that certain professional service for legal aid shall be exclusively rendered by solicitors employed full time or part time by the commission.

         (3.1)  Where the application is for legal aid with respect to an offence of murder, manslaughter or infanticide, the applicant may select  a solicitor

             (a)  employed by the commission; or

             (b)  in private practice in the province whose name is on a panel established under section 33.

         (3.2)  Subsection (3.1) does not place an obligation on a solicitor in private practice to act for the applicant.

         (3.3)  Where a solicitor in private practice agrees to act for the applicant under subsection (3.1), he or she shall be paid at the tariff rate prescribed in the regulations.

             (4)  [Rep. by 1996 c9 s2]

             (5)  Where the commission has insufficient staff in a legal aid area to provide the applicant with legal aid through a solicitor employed by the commission, the applicant shall be assigned to another solicitor.

             (6)  Where the nature of the problem, dispute, case or proceeding requires specific competence that the commission is unable to provide through a solicitor in its employ, a member of a panel of solicitors shall be assigned to the client.

             (7)  Where a person applying for legal aid is a party to a dispute or case which involves a client for whom a solicitor employed by the commission acts as counsel, the applicant, if found eligible, may be assigned either to another solicitor who is employed by the commission or to a solicitor who is a member of the appropriate panel.

             (8)  Notwithstanding the Law Society Act , 1999 , a solicitor employed by the commission does not commit a breach of the Code of Professional Conduct or a rule of the Law Society of Newfoundland and Labrador relating to conflict of interest by reason only of

             (a)  advising or representing a person in a dispute or case where another person involved in that dispute or case is being advised or represented by another solicitor employed by the commission; or

             (b)  examining a witness in a proceeding who was formerly represented by another solicitor employed by the commission in the same area office, unless that witness establishes to the commission a genuine serious risk that the solicitor in the current proceeding received privileged information respecting the witness's former representation by the commission.

1975 No42 s32; 1988 c36 s1; 1996 c9 s2; 1997 c13 s35; 2008 c25 s1; 2015 c11 s8

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Commission to distribute cases equitably

      32. The commission shall distribute the cases in an equitable manner among the solicitors on the panels taking into account the nature of the cases and the number of cases assigned to each of them.

2015 c11 s9

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Panels

      33. There may be established in accordance with the regulations

             (a)  panels of solicitors who agree to provide professional services to eligible legal aid applicants;

             (b)  panels of solicitors who agree to provide professional services as duty counsel; and

             (c)  panels of solicitors who agree to give legal advice only.

1975 No42 s34

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Solicitor on appropriate panel

      34. (1) Except where otherwise authorized in this Act or the regulations, a solicitor not in the employ of the commission shall not act for a person under a legal aid certificate or provisional certificate unless his or her name is on an appropriate panel in relation to the services to be performed under that certificate.

             (2)  Where a solicitor provides professional services to a holder of a legal aid certificate or a provisional certificate other than those services that are authorized by the certificate, he or she is not entitled to be paid for those services out of the fund.

1975 No42 s35

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Costs to be taxed

      35. (1) A solicitor not in the employ of the commission who has provided legal aid in accordance with this Act and the regulations shall submit a bill of costs to the provincial director for taxation.

             (2)  A bill submitted under subsection (1) shall be taxed by the provincial director, or other person that the commission authorizes, on the basis of the tariff established under and in the manner prescribed by the regulations.

             (3)  A solicitor who provides legal aid in accordance with this Act and the regulations shall be paid out of the legal aid fund an amount equal to the fees for services rendered as determined by the regulations and an amount equal to his or her appropriate out-of-pocket disbursements in the matter in which legal aid was given, both as taxed and allowed under this Act and the regulations.

             (4)  An appeal lies in accordance with the regulations to a judge of the Trial Division from the decision of the provincial director or other person with respect to taxation of a bill submitted under subsection (1) and the order of the judge disposing of the appeal is final.

1975 No42 s36; 1986 c42 Schs A&B

PART V
LEGAL AID PLAN

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When legal aid provided

      36. (1) The commission may, upon receipt of an application and where the applicant is found eligible, provide legal aid in civil, criminal and administrative law matters

             (a)  without charge to an individual who is unable to pay; and

             (b)  with a partial charge, to an individual who is able to pay a portion of the cost.

             (2)  A person who qualifies under the Act and the regulations is entitled to receive legal aid.

             (3)  In determining whether a person is qualified for legal aid, an area director or the provincial director shall consider the matter from the standpoint of a usual solicitor and client relationship, taking into account

             (a)  whether a reasonable person of moderate means would be prepared to pay a solicitor to pursue the matter;

             (b)  the possibility of success;

             (c)  the cost of the proceedings in relation to the anticipated loss or recovery; and

             (d)  the likelihood of enforcing judgment.

1975 No42 s37; 2012 c16 s2; 2015 c11 s10

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Aid may be granted

      37. (1) Legal aid may be granted at any stage of the proceeding before the court or administrative board or tribunal of original jurisdiction, or in an appeal, before a court, an administrative board or tribunal and for a proceeding, contentious or not, including proceedings in execution.

             (2)  Legal aid may not be granted after the matter for which legal aid may have been granted has been completed, except in unusual circumstances and then only with the consent of the provincial director.

1975 No42 s38; 2012 c16 s3

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Application for legal aid

      38. (1) An application for legal aid shall be made in the manner and form prescribed in the regulations to a legal aid agent or to the area director in the area in which the applicant lives at the time the application is made and in which the matter or proceeding for which legal aid is required arises or in which the legal services required are to be performed or to the provincial director.

             (2)  Where an application has been made to a legal aid agent he or she shall forward the application as soon as possible to the area director for the area in which he or she lives.

             (3)  An application for legal aid shall set out the financial condition of the applicant and the basis of his or her claim and all the information prescribed by the regulations and additional information required by the area director.

             (4)  An applicant or recipient of legal aid shall notify without delay the area director or the solicitor in charge of his or her case of a change in his or her condition making inaccurate the information supplied by him or her to obtain legal aid.

1975 No42 s39

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No aid unless applicant has certificate

      39. (1) Except as to professional services provided by duty counsel or staff solicitors, a person is not entitled to legal aid in a matter unless the person holds a certificate or provisional certificate respecting the matter that has been issued to him or her in accordance with this Act and the regulations.

             (2)  Where the holder of a legal aid certificate does not retain a solicitor within 30 days of the date of issue of the legal aid certificate, the legal aid certificate expires.

1975 No42 s40

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Aid for non-resident

      40. Subject to an agreement between the governments of Canada and the province, an application for legal aid by a person not ordinarily resident in the province shall be disposed of in accordance with the regulations.

1975 No42 s41

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Duties of area director

      41. (1) Upon receipt of an application for legal aid an area director shall

             (a)  investigate the circumstances of the applicant in the manner that he or she considers appropriate;

             (b)  require the applicant to provide the information that is required by this Act or as is prescribed by the regulations and to declare under oath or affirmation the truth of the information disclosed; and

             (c)  determine whether the applicant can pay no part, some part or the whole of the cost of the legal aid applied for and the sum that the applicant is able to contribute toward the cost.

             (2)  Whether the legal aid authorized is to be provided by a staff solicitor or a solicitor in private practice, the area director shall issue a legal aid certificate in the manner and form prescribed in the regulations.

             (3)  The area director may issue a legal aid certificate on the terms that in his or her opinion are warranted by the circumstances.

             (4)  Where in the opinion of the area director the circumstances of the applicant require the issue of a certificate immediately, he or she may issue a provisional certificate without having first complied with subsection (1).

1975 No42 s42

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Refusal of legal aid

      42. (1) Legal aid may be refused, suspended or withdrawn or a certificate cancelled with regard to a person otherwise eligible when that person, without sufficient reason

             (a)  neglects to provide the information or documents required to study his or her application;

             (b)  neglects to provide the information required under this Act and by the regulations;

             (c)  refuses or neglects to exercise his or her legal rights and remedies;

             (d)  refuses or neglects to co-operate with the solicitor rendering professional services for him or her, in the manner that is normal and customary between a solicitor and his or her client; or

             (e)  makes a false statement or conceals information in applying for legal aid.

             (2)  An area director may cancel a legal aid certificate issued by him or her or by a former area director for that area or may suspend or withdraw the legal aid where he or she is satisfied that

             (a)  legal aid should not have been given or a legal aid certificate should not have been issued; or

             (b)  because of changed circumstances since the date of granting legal aid or the issuing of the certificate, the benefits of this Act should not be extended to the client.

             (3)  Where legal aid has been suspended or withdrawn or where a legal aid certificate has been cancelled, the client, unless exempted from this provision by the provincial director on the grounds that its application would prove unjust as against the client, shall reimburse the commission for the cost to the commission of providing legal aid up to the time of the suspension, withdrawal or cancellation, and the amount payable is a debt owing to the commission.

             (4)  Where it is found that a client knowingly made false or misleading statements or provided false or misleading information in his or her application, the client shall, unless exempted by the provincial director on the ground that its application would prove unjust as against the client, be required to reimburse the commission for the total cost to the commission of providing legal aid to the client with respect to the matter for which the client made the statements or provided the information, and the amount payable is a debt owing to the commission.

1975 No42 s43

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Notice to client

      43. (1) Where an area director issues a legal aid certificate authorizing legal aid to be provided by a solicitor in private practice, he or she shall advise the holder of the legal aid certificate of the names of all solicitors on the panel that practice where the court in which the holder of the certificate is required to appear is located.

             (2)  Notwithstanding subsection (1), a holder of a legal aid certificate may retain a solicitor who is not in the geographic area referred to in subsection (1) where he or she obtains approval from the provincial director. 

2015 c11 s11

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Agreement re contribution by client

      44. (1) Where an area director determines 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, the area director shall require the applicant to enter into a written agreement to pay that part of the cost under the conditions and at the time that may be set by the area director.

             (2)  The amount that the applicant agrees to pay under subsection (1) is a debt owing to the commission but where the amount exceeds the cost to the commission of providing legal aid to the applicant the debt shall at that time be considered to be an amount equal to the cost to the commission of providing legal aid to the applicant.

             (3)  An area director may require as a condition of authorizing legal aid that the applicant secure a debt referred to in subsection (2) by depositing with the provincial director the security that is authorized by the regulations.

             (4)  Where legal aid has been suspended or withdrawn or where a legal aid certificate is cancelled or expires or where all duties imposed by this Act and the regulations with respect to that legal aid or legal aid certificate have been discharged

             (a)  a portion of the contribution already paid by the client that exceeds the amount of debt owing to the commission shall be refunded to the client; and

             (b)  the portion of security taken that is no longer necessary for securing a debt owing to the commission shall be returned to the client unless in the opinion of the provincial director it would be impractical or unreasonable to release the security in whole or in part.

             (5)  An area director or the provincial director may amend or cancel a written agreement referred to in subsection (1) where there has been a significant change in the applicant's ability to pay a part of the cost of the legal aid.

1975 No42 s45; 2015 c11 s12

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Payment of costs to commission

      45. (1) Where a client recovers costs in respect of the matter or proceeding for which a legal aid certificate was issued under a judgment or order of a court or administrative board or tribunal, the costs shall be paid to the commission.

             (2)  Where proceedings are taken or defended by a recipient of legal aid and he or she is ordered to pay costs by a judgment or order of a court, the provincial director may in his or her discretion authorize a payment in respect of the costs out of the fund.

             (3)  Where a client recovers under a judgment, order, settlement, or otherwise a sum in respect of the proceedings for which a legal aid certificate was issued, he or she shall pay to the commission an amount equal to the cost to the commission of providing legal aid under this Act and the regulations, less the amount paid or payable under subsection (1).

             (4)  Where a client recovers under a judgment, order, settlement or otherwise property other than money in respect of the proceeding for which a legal aid certificate was issued, the commission has a charge against the property so recovered for the costs paid or payable under this Act and the regulations, less the amount paid or payable under subsection (1), and may enforce the charge.

         (4.1)  Subsections (3) and (4) do not apply to judgments, orders or settlements relating to child support or spousal support.

         (4.2)  Notwithstanding subsection (4.1), subsections (3) and (4) may apply to judgments, orders or settlements relating to spousal support where the amount of the judgment, order or settlement exceeds an amount prescribed in the regulations.

             (5)  The commission may reduce or waive an amount payable under subsection (3) or (4) where, under the circumstances of the case, it considers it unjust to require the amount to be paid in full, in which case the amount considered to be payable under subsection (3) or (4) shall be an amount set by the commission.

             (6)  Where a solicitor is in possession of an amount in respect of costs referred to in subsection (1), whether in trust or otherwise, he or she shall pay the amount to the commission and not to his or her client.

             (7)  Where a solicitor is in possession of a sum referred to in subsection (3), whether in trust or otherwise, he or she shall pay the amount to the commission and not to his or her client.

             (8)  Where a solicitor is in possession of property referred to in subsection (4), whether in trust or otherwise, he or she shall withhold the property from his or her client until the time that the client reimburses the commission for the amount of the charge as determined under subsection (4) or until the security for the amount of the charge that is required by the provincial director has been given by the client.

             (9)  An amount payable to the commission under this section is a debt owing to the commission.

          (10)  A client shall be refunded money received or recovered by the fund for costs in excess of the actual cost to the commission.

1975 No42 s46; 2012 c16 s4; 2015 c11 s13

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Definition of costs to commission

      46. For the purpose of this Act, the cost to the commission of providing legal aid to a client is the amount paid or payable to a solicitor in private practice under this Act and the regulations in respect of fees and disbursements or the cost to the commission, as determined by the provincial director, of the services of a staff solicitor plus disbursements made on behalf of the applicant.

1975 No42 s47

PART VI
COVERAGE

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Coverage

      47. Except as otherwise provided in this Act or the regulations, legal aid may be granted to a person otherwise entitled to it in respect of a proceeding or proposed proceeding

             (a)  in the Trial Division - General Division;

             (b)  in the Trial Division - Family Division;

             (c)  in the Provincial Court ;

          (c.1)  before an administrative board or tribunal respecting a person’s

                      (i)  income,

                     (ii)  entitlement to benefits,

                    (iii)  ability to earn a livelihood, or

                    (iv)  immigration status;

             (d)  where the applicant is charged with an indictable offence or where an application is made for a sentence of preventive detention under Part XXIV of the Criminal Code;

             (e)  under the Extradition Act (Canada ); or

             (f)  in the Federal Court of Canada.

1975 No42 s48; 1986 c42 Sch B; 2012 c16 s5; 2015 c11 s14

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Legal aid in summary conviction matters

      48. (1) The area director may only grant legal aid to a person otherwise entitled to it in a summary conviction proceeding under an Act of the Parliament of Canada or of the Legislature where he or she is of the opinion that

             (a)  there is a likelihood of imprisonment or loss of means of earning a livelihood upon conviction; or

             (b)  because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by counsel.

             (2)  For the purposes of paragraph 47(d), an offence that may be tried on indictment or on summary conviction shall be considered to be an offence triable on summary conviction until the time that the prosecution elects to proceed on indictment.

2009 c13 s1

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Rep. by 2009 c13 s1

      49. [Rep. by 2009 c13 s1]

2009 c13 s1

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Aid where accused elects manner of trial

      50. Where an applicant is found eligible for legal aid with respect to a criminal offence and where he or she has an election as to the manner in which to be tried, the legal aid granted shall authorize proceedings in the Provincial Court only unless the applicant's solicitor certifies to the area director that in his or her opinion the interests of the accused require that he or she elect to be tried in some other manner or unless the Crown elects trial in some other manner, in which case the authorization shall be amended accordingly.

1975 No42 s51

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No legal aid

      51. (1) Legal aid shall not be granted to a person for proceedings involving

             (a)  damages for injury to person or property, including economic loss arising from the injury whether based on contract, tort or statutory duty;

             (b)  damages for injury to person or property including economic loss arising from negligent misrepresentation and professional negligence whether based on contract, tort or statutory duty;

             (c)  relator actions;

             (d)  the recovery of a penalty where the proceedings may be taken by a person and the penalty in whole or in part may be payable to the person instituting the proceedings;

             (e)  elections;

             (f)  private prosecutions in criminal and civil matters or proceedings;

             (g)  defamation;

             (h)  civil property claims; or

              (i)  other matters prescribed in the regulations.

             (2)  Notwithstanding paragraph (1)(f), legal aid may be granted for contempt and peace bond proceedings where the proceedings are in relation to an ongoing family law matter for which legal aid has already been granted.

             (3)  For the purpose of paragraph (1)(h), civil property claims shall not include family law matters relating to matrimonial property or property matters between cohabiting partners.

2015 c11 s15

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Legal aid in an appeal

      52. (1) Subject to the approval of the provincial director, legal aid may be authorized to help a person otherwise entitled to it

             (a)  in an appeal

                      (i)  to the Supreme Court of Canada ,

                     (ii)  to the Federal Court of Canada,

                    (iii)  to the Court of Appeal,

                    (iv)  to the Trial Division,

                     (v)  to a judge sitting in court or chambers, or

                    (vi)  under Part XXVII of the Criminal Code or the Summary Proceedings Act; or

             (b)  in a proceeding by way of mandamus, quo warranto, certiorari, motion to quash, habeas corpus or prohibition.

             (2)  Except where, in the opinion of an area director, the circumstances of an application require the immediate granting of legal aid, the area director shall not authorize legal aid in respect of an appeal referred to in paragraph (1)(a) unless

             (a)  the applicant has included in his or her application

                      (i)  the opinion of his or her solicitor as to the advisability of instituting or defending an appeal, where the applicant was represented by a solicitor in the initial proceeding,

                     (ii)  a copy of the order or judgment appealed from, and

                    (iii)  other information that the area director requires him or her to provide;

             (b)  the area director considers that it is reasonable that the appeal be instituted or defended;

             (c)  the area director has submitted the application to the provincial director; and

             (d)  the provincial director has approved the granting of legal aid in respect of the appeal.

1975 No42 s53; 1979 c35 Sch A; 1986 c42 Sch B

PART VII
APPEALS FROM REFUSAL TO GRANT
LEGAL AID

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Appeals to provincial director

      53. (1) Where an area director refuses to grant legal aid or refuses to issue or amend a legal aid certificate, or conditions the granting of legal aid or issuing of a certificate on the contribution of the applicant, or suspends or withdraws legal aid, or cancels or amends a legal aid certificate, the applicant or client may appeal to the provincial director in a form prescribed in the regulations.

             (2)  Where the refusal, issuing, suspension, withdrawal, cancellation or amendment referred to in subsection (1) was originally made by the provincial director, the applicant or client may appeal to the appeal board established by the regulations in a form prescribed in the regulations.

             (3)  An area director or the provincial director shall make available to each applicant entitled to appeal under subsection (1) or (2) the form referred to in those subsections and shall inform the applicant of the name and address of the person to whom the form is to be delivered.

1975 No42 s54

PART VIII
GENERAL

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Agreement with Government of Canada

      54. Subject to the approval of the Lieutenant-Governor in Council, the minister may on behalf of the government of the province enter into, vary or amend an agreement with the Government of Canada respecting legal aid upon the terms and conditions that may be agreed upon.

1975 No42 s56

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No action against minister

      55. An action does not lie against the minister or the commission or a member of the commission with respect to an act or omission relating to the provision of legal aid under this Act or the regulations.

1975 No42 s57

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Commission not considered to practise law

      56. Notwithstanding the Law Society Act, the commission, in carrying out its objects and powers, is not considered to be practising law within the meaning of the Act.

1975 No42 s58

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Solicitor subject to rules

      57. A solicitor remains subject to all the rules of the law society with respect to legal aid provided by him or her.

1975 No42 s59

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Secrecy

      58. (1) A person employed in the administration of this Act shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her employment and shall not communicate the matters to another person except

             (a)  to a solicitor for a purpose relating to legal aid that he or she has provided;

             (b)  for purposes of administration of this Act;

             (c)  for purposes of consultation between the members of the commission and the law society; or

             (d)  in other circumstances that the commission may prescribe.

             (2)  All information and communication in the possession of the commission relating to an applicant and his or her affairs is considered to be privileged to the same extent that privilege would attach to information and communication in the possession of a solicitor.

         (2.1)  Notwithstanding subsection (1), where an allegation of wrongdoing is made against the commission or its employees, the commission may produce the information and communication in its possession to a court, administrative board or tribunal subject to the restrictions the court, administrative board or tribunal may impose.

             (3)  An action shall not lie against a solicitor in respect of information concerning an applicant provided to the commission.

1975 No42 s60; 2015 c11 s16

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Legal aid plan non-profit

      59. The plan of legal aid referred to in this Act shall be administered and operated on a non-profit basis.

1975 No42 s61

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Tariff of fees

      60. The law society shall be consulted by the minister or the commission with reference to the tariff of fees to be paid to solicitors under this Act and the regulations in respect of legal aid, the manner and form in which the fees shall be paid and changes in connection with them.

1975 No42 s62

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Law students

      61. Where permitted by the Law Society Act, a student-at-law, under the supervision of a solicitor, may perform the duties that the solicitor may assign to him or her in respect of legal aid which the solicitor is providing.

1975 No42 s63

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Collection of debts

      62. (1) Debts owing to the commission under this Act and the regulations are collectable in a court.

             (2)  Amounts adjudged to be owing to the commission under this Act and the regulations by recipients of legal aid in respect of the legal aid provided are not subject to garnishment under the Judgment Enforcement Act.

1975 No42 s64; 1996 cJ-1.1 s195

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Assistance in other projects

      63. The commission may, on those terms and conditions consistent with this Act and the regulations and with the approval of the minister, encourage and help, by means of financial support or otherwise, the projects of an individual or group having objects similar to and consistent with the objects of this Act and regulations and carried on under the supervision of the commission or of the law society.

1975 No42 s65

PART IX
OFFENCE AND PENALTIES

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Offences

      64. A solicitor, providing legal aid to an applicant, who wilfully makes a false statement in a bill of cost, report, form or return required to enable a payment to be made under this Act or the regulations is guilty of an offence and is liable on summary conviction to a fine of not less than $500 and not more than $5,000.

1975 No42 s67

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General offence provision

      65. (1) A person who fails to comply with or otherwise contravenes this Act or the regulations is guilty of an offence and, where no penalty is specifically provided in this Act, liable on summary conviction for a 1st offence to a fine not exceeding $500 and for a 2nd or subsequent conviction for a similar offence to a fine not exceeding $800 and in either case, in default of payment, to imprisonment for a term not exceeding 3 months.

             (2)  For the purposes of subsection (1), an offence is not considered to be a 2nd or subsequent offence unless it is an offence committed within 12 months after a prior offence.

1975 No42 s68

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Suspension

      66. (1) A solicitor who

             (a)  fails to comply with or otherwise contravenes this Act or the regulations; or

             (b)  in the opinion of the commission is abusing or has abused his or her right or privilege of obtaining, providing or charging for legal aid,

may, in addition to a penalty provided in this Act, be suspended by the commission from providing legal aid for the period that the commission prescribes.

             (2)  Where the commission suspends a solicitor from a panel established under section 33, it shall immediately report the matter to the president of the law society.

1975 No42 s69; 2015 c11 s17

PART X
REGULATIONS

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Regulations

      67. The Lieutenant-Governor in Council may make regulations

             (a)  [Rep. by 2015 c11 s18]

             (b)  prescribing the powers, duties and functions of the provincial director, the area directors, staff solicitors and other persons employed for the purposes of this Act;

             (c)  prescribing oaths of office and secrecy and requiring persons, or a class of them, engaged in the administration of this Act to take and sign the oaths or affirmations;

             (d)  respecting the non-disclosure of information provided by or about an applicant for or recipient of legal aid;

             (e)  describing the accounts and records that shall be kept of the transactions of the fund;

             (f)  respecting the payment out of the fund of the expenses of the commission attributable to the administration of this Act and the regulations;

             (g)  preventing unnecessary use or abuse of legal aid;

             (h)  providing for the investigation of complaints of violations of this Act or the regulations or of an order made under this Act or the regulations;

              (i)  providing for the settlement, recovery and payment into the fund of costs and other money due to the fund;

              (j)  providing for the payment out of the fund of costs awarded against a person to whom legal aid has been given;

             (k)  respecting panels referred to in section 33, including the removal of solicitors from them;

              (l)  respecting the participation of students-at-law in legal aid;

           (m)  respecting applications for legal aid;

             (n)  respecting entitlement to legal aid;

         (n.1)  respecting the proceedings for which legal aid shall not be granted;

             (o)  prescribing procedures for applying for legal aid;

             (p)  prescribing information to be disclosed by applicants for legal aid;

             (q)  respecting non-disclosure of information provided by or about an applicant for legal aid;

              (r)  prescribing rules for determining financial eligibility for legal aid;

             (s)  respecting the fees to be paid to solicitors for professional services under this Act or the regulations;

              (t)  respecting the establishment and revision of a tariff of fees to be used in taxing a solicitor's bill;

             (u)  providing for the settlement of accounts for professional services under this Act or the regulations;

         (u.1)  prescribing an amount for the purpose of subsection 45(4.2);

             (v)  respecting appeals under section 53;

            (w)  respecting solicitor's reports on legal aid;

             (x)  respecting the repayment of disbursements to solicitors;

             (y)  respecting legal aid agents, their appointment, duties, responsibilities and remuneration;

             (z)  respecting the number, location, organization and staffing of the neighbourhood legal aid centres that may be established under section 29, and prescribing the remuneration and duties of persons employed there;

          (aa)  respecting assistance to projects referred to in section 63;

          (bb)  prescribing methods for the distribution of information to the public and to detained persons respecting legal aid and legal rights and obligations;

           (cc)  providing for the establishment or payment into established plans respecting pensions, insurance benefits and other health and welfare benefits for members of the board or employees of the commission, or both;

          (dd)  governing the calling of meetings of the commission and the conducting of business at the meetings;

           (ee)  governing the appointment of committees and subcommittees and prescribing the duties of committees and subcommittees;

            (ff)  respecting the establishment of the appeal board referred to in section 53 and providing for its constitution, powers and duties;

           (gg)  prescribing the procedures to be followed in carrying out this Act and the regulations; and

          (hh)  generally, to give effect to the purpose of this Act.

1975 No42 s71; 1996 cR-10.1 s40; 2015 c11 s18