Fourth

Session, 47th General Assembly

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

S.2 Amdt.

Definitions

S.3 Amdt.

Legal Aid Commission

S.5 Amdt.

Meetings of board

S.9 Amdt.

Head office

S.23 Amdt.

Audit

6. S.27 R&S

Province may be divided into areas

S.28 Amdt.

Area directors

S.31 Amdt.

Solicitor may be appointed

9. S.32 R&S

Commission to distribute cases equitably

S.36 Amdt.

When legal aid provided

S.43 R&S

Notice to client

S.44 Amdt.

Agreement re contribution by client

S.45 Amdt.

Payment of costs to commission

S.47 Amdt.

Coverage

S.51 R&S

No legal aid

S.58 Amdt.

Secrecy

S.66 Amdt.

Suspension

S.67 Amdt.

Regulations

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cL-11

as amended

(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 ,

(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

(

c) the provincial director.

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

(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.

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

(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

(

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.

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;

(

c) the cost of the proceedings in relation to the

anticipated loss or recovery; and

(

d) the likelihood of enforcing judgment.

Section 43 of the Act is repealed and the

following substituted:

Notice to client

(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.

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.

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;

Section 51 of the Act is repealed and the

following substituted:

No legal aid

(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.

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.

(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.

Queen's Printer