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Newfoundland and Labrador
Regulation 2015


NEWFOUNDLAND AND LABRADOR REGULATION 88/15

NEWFOUNDLAND AND LABRADOR
REGULATION 88/15

Legal Aid Regulations (Amendment)
under the
Legal Aid Act
(O.C. 2015-220)

(Filed October 22, 2015)

Under the authority of section 67 of the Legal Aid Act, the Lieutenant-Governor in Council makes the following regulations.

Dated at St. John’s, October 22, 2015.

Julia Mullaley
Clerk of the Executive Council

REGULATIONS

Analysis


        1.   Sch. A to C R&S

2. Commencement


CNLR 1010/96
as amended

        1. Schedules A to C of the Legal Aid Regulations are repealed and the following substituted:

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.

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.

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.

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.

Accounts in duplicate, signed

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

Separate account

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

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.

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.

Itemization of accounts

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

Proof

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

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.

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.


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.

Maximum hourly rate

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

(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:

(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.

Mileage, meals and accommodations

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


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.

Commencement

        2. These regulations come into force on October 31, 2015.