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May 28, 2009 to June 26, 2012 |
RSNL1990
CHAPTER L-11 LEGAL AID ACT Amended: 1996 cR-10.1 s40; 1996 c9; 1996 cH-1.1
s195; 1997 c13 s35; CHAPTER L-11 AN ACT RESPECTING A PLAN OF LEGAL AID
FOR THE PROVINCE
PART I
PART II
PART III
PART IV
PART V
PART VI
PART VII
PART VIII
PART IX
PART X PART I
Short title
1.
This Act may be cited as the Legal Aid
Act.
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
(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 lawfully entitled to be or to remain in Canada who
makes his or her home and is ordinarily present in the province, but does not
include a tourist, transient or visitor to the province;
(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 PART II
Legal Aid Commission
3.
(1) The
(2)
The affairs of the commission shall be managed by a board of commissioners
consisting of 5 members appointed by the Lieutenant-Governor in Council and of 2
members who shall be the Deputy Minister of Justice and 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
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.
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 Justice 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.
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.
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.
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.
Head office
9.
(1) The head office of the commission shall be in the City of
(2)
Subject to the approval of the minister, the commission may establish other
offices and agencies in the province that it considers expedient.
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.
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.
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.
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
(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
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.
Borrowing power limited
14.
The commission shall not borrow money unless authorized by the minister to do
so.
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.
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.
Commission responsible
17.
The commission is responsible to the minister. 1975 No42 s18
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.
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.
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.
Financial year
21.
The financial year of the commission shall correspond to the financial year of
the province.
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.
Audit
23.
(1) The auditor general shall audit the accounts of the commission and has
authority to call for and shall be supplied by the commission with all books and
vouchers which he or she considers necessary for the audit.
(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.
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.
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.
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
Province divided into areas
27.
The province, as prescribed by the regulations, is divided into areas.
Area directors
28.
(1) The commission may appoint, on a full-time or part-time basis, a solicitor
to act as an area director and an area director so appointed is responsible for
the general administration of the legal aid plan in his or her area in
accordance with this Act and the regulations.
(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".
Legal aid centres
29.
The commission may establish and maintain neighbourhood legal aid centres as
prescribed by the regulations.
Counsel may be appointed
30.
The commission may appoint counsel, as prescribed by the regulations, to attend
in a court in the province on a daily or other basis that may be required, for
the purpose of advising or representing a person in a civil matter, or a person
charged with a criminal offence or who is being detained or is under arrest.
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 employed by the commission or a solicitor in
private practice in the province, except a solicitor whose name has been removed
from the panel, other than upon his or her own request, however, this subsection
does not place an obligation on that solicitor to act for the applicant.
(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 in an area.
(8)
Notwithstanding the Law Society Act
, a solicitor employed by the commission does not commit a breach of a rule or
code of legal ethics of the Law Society of Newfoundland relating to conflict of
interest, by reason only of 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. 1975 No42 s32; 1988 c36 s1;
1996 c9 s2;
1997 c13 s35;
2008 c25 s1
Area director to distribute cases equitably
32.
An area director shall distribute in an equitable manner among the solicitors on
the panels in his or her area the cases assigned to them, taking into account
the nature of the cases and the number of cases assigned to each of them.
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.
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.
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
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 and criminal 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 form the standpoint of a usual
solicitor and client relationship, taking into account the possibility of
success, the cost of the proceedings in relation to the anticipated loss or
recovery, and the likelihood of enforcing judgment.
Aid may be granted
37.
(1) Legal aid may be granted at any stage of the proceeding before the court of
original jurisdiction or in appeal, before a court 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.
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.
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.
Aid for non-resident
40.
Subject to an agreement between the governments of
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).
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.
Notice to client
43.
(1) Where an area director issues a legal aid certificate authorizing legal aid
which is 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 appropriate panel for that area.
(2)
Nothing in subsection (1) prevents the holder of a legal aid certificate from
retaining a solicitor who is not on a panel for that area where the solicitor
retained is on the appropriate panel for another area and the provincial
director gives his or her approval.
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.
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,
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.
(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.
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
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 Supreme Court;
(b)
in a Family Court;
(c)
in the Provincial Court;
(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 theExtradition Act
(Canada) or theFugitive Offenders Act
(Canada); or
(f)
in the Federal Court of Canada. 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.
Rep. by 2009 c13 s1
49.
[Rep. by 2009 c13 s1]
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.
No legal aid
51.
Legal aid shall not be granted to a person
(a)
in proceedings wholly or partially in respect of defamation, breach of promise
of marriage, loss of services of a female in consequence of rape or seduction,
alienation of affections, or criminal conversation;
(b)
in relator actions;
(c)
in proceedings for 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;
(d)
in proceedings relating to an election; or
(e)
private prosecutions in criminal and civil matters or proceedings.
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
(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 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
Agreement with Government of
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.
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.
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.
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.
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 communications 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.
(3)
An action shall not lie against a solicitor in respect of information concerning
an applicant provided to the commission.
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.
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.
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.
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
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
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.
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.
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 providing legal aid, it shall
immediately report the matter to the treasurer of the law society and the
benchers of the law society shall, notwithstanding another Act, immediately
appoint and instruct a committee of the law society to investigate and deal with
the matter. 1975 No42 s69
Regulations
67.
The Lieutenant-Governor in Council may make regulations
(a)
designating regions of the province as areas for purposes of this Act;
(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;
(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;
(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 ŠEarl G. Tucker, Queen's Printer |