2015 BILL 9

	9


Fourth Session, 47th General Assembly 64 Elizabeth II, 2015
BILL 9
AN ACT TO AMEND THE LEGAL AID ACT
Received and Read the First Time.................................................................................................
Second Reading.................................................................................................................................
Committee..........................................................................................................................................
Third Reading.....................................................................................................................................
Royal Assent......................................................................................................................................
HONOURABLE DARIN T. KING Minister of Justice and Public Safety
Ordered to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Legal Aid Act to

· amend the definition of resident to include a person who is illegally in Canada but awaiting adjudication of immigration or citizenship;

· increase the size of the board of commissioners of the Legal Aid Commission;

· allow members of the board of commissioners to participate in meetings by telephone or another telecommunications device;

· clarify that private practice counsel selected by a legal aid client is paid at the tariff rate prescribed in the regulations;

· allow the provincial director when determining an applicant's qualification for legal aid to consider whether a reasonable person of moderate means would be prepared to pay a solicitor to pursue the matter;

· allow an area director or provincial director to amend or cancel written agreements relating to a client's contribution towards part of the cost of legal aid when the client's financial circumstances change;

· exempt a client who receives a judgment, order or settlement relating to child support or spousal support from the requirement to pay the commission the costs of providing legal aid;

· add regulation making authority respecting proceedings for which legal aid shall not be granted; and

· add regulation making authority prescribing the circumstances under which the commission may have a charge against a spousal support judgment, order or settlement.

A BILL

AN ACT TO AMEND THE LEGAL AID ACT

Analysis

1. S.2 Amdt.
Definitions

2. S.3 Amdt.
Legal Aid Commission

3. S.5 Amdt.
Meetings of board

4. S.9 Amdt.
Head office

5. S.23 Amdt.
Audit

6. S.27 R&S
Province may be divided into areas

7. S.28 Amdt.
Area directors

8. S.31 Amdt.
Solicitor may be appointed

9. S.32 R&S
Commission to distribute cases equitably

10. S.36 Amdt.
When legal aid provided

11. S.43 R&S
Notice to client

12. S.44 Amdt.
Agreement re contribution by client

13. S.45 Amdt.
Payment of costs to commission

14. S.47 Amdt.
Coverage

15. S.51 R&S
No legal aid

16. S.58 Amdt.
Secrecy

17. S.66 Amdt.
Suspension

18. S.67 Amdt.
Regulations

19. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

RSNL1990 cL-11
as amended

1. (1) Section 2 of the Legal Aid Act is amended by adding immediately after paragraph (i) the following:

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

(2) Paragraph 2(s) of the Act is repealed and the following substituted:

(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;

2. Subsection 3(2) of the Act is repealed and the following substituted:

(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

3. Subsection 5(2) of the Act is repealed and the following substituted:

(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.

4. Subsection 9(2) of the Act is repealed and the following substituted:

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

5. Subsection 23(1) of the Act is repealed and the following substituted:

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.

6. Section 27 of the Act is repealed and the following substituted:

Province may be divided into areas

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

7. Subsection 28(1) of the Act is repealed and the following substituted:

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.

8. (1) Subsection 31(3.1) of the Act is repealed and the following substituted:

(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.

(2) Subsections 31(7) and (8) of the Act are repealed and the following substituted:

(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.

9. Section 32 of the Act is repealed and the following substituted:

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.

10. Subsection 36(3) of the Act is repealed and the following substituted:

(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;

(d) the likelihood of enforcing judgment.

11. Section 43 of the Act is repealed and the following substituted:

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.

12. Section 44 of the Act is amended by adding immediately after subsection (4) the following:

(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.

13. Section 45 of the Act is amended by adding immediately after subsection (4) the following:

(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.

14. Paragraphs 47(a) and (b) of the Act are repealed and the following substituted:

(a) in the Trial Division - General Division;

(b) in the Trial Division - Family Division;

15. Section 51 of the Act is repealed and the following substituted:

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;

(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.

16. Subsection 58(2) of the Act is repealed and the following substituted:

(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.

17. Subsection 66(2) of the Act is repealed and the following substituted:

(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.

18. (1) Paragraph 67(a) of the Act is repealed.

(2) Section 67 of the Act is amended by adding immediately after paragraph (n) the following:

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

(3) Section 67 of the Act is amended by adding immediately after paragraph (u) the following:

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

Commencement

19. Subsection 8(1) of this Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.