Legal Aid in Ontario: More of the Same?
Larry Taman*
In December, 1973, the Government of Ontario charged the
Honourable Mr Justice Osler of the Supreme Court of Ontario and
six other members with the formation of a Task Force on Legal
Aid. They were to “review in depth” the Ontario Legal Aid Plan
and to “determine the parameters of the future direction and de-
velopment in order to ensure that it has the capacity to meet its
objectives in the years ahead”.’ Their report appeared in March,
19752 and is the subject of this comment. I shall begin with a brief
history of legal aid in Ontario with particular reference to the back-
ground to the Task Force.
1. Background to the Task ForceO
Prior to 1951, there was no statutory legal aid scheme in Ontario.
Capital offences apart, the accused, even in the gravest criminal
matters, would often go unrepresented. “The so-called ‘dock brief’
said to exist in England, involving the appointment of counsel then
present in Court to represent indigents, did not … exist to any
great extent in Ontario.’ 4 It may be assumed that, notwithstanding
the generosity of some individual members of the bar, legal
services in civil matters were generally unavailable to those unable
to pay.
No doubt reassured by the appearance in Great Britain of the
Legal Aid and Advice Act, 1949,’ the Law Society of Upper Canada
* Associate Professor of Law, Osgoode Hall Law School of York University.
‘Report of the Task Force on Legal Aid, Toronto: Queen’s Printer (1974)
(hereinafter referred to as Report).
2 Notwithstanding the Report’s submission to the then Minister of Justice
and Attorney General on November 29, 1974, it was not made public until
March, 1975.
3The following material on the background of the 1966 Plan was originally
gathered for an earlier essay: I. A. McDougall and L. Taman, Legal Aid in
Ontario: A Study in Symbolic Reassurance, Osgoode Hall Law School, Toronto
(1969)
(unpublished).
4Report of the Joint Committee on Legal Aid, tabled in the Legislative
Assembly, April 14, 1965, 10.
.512, 13 & 14 George VI, c.51 (U.K.).
McGILL LAW JOURNAL
[Vol. 22
embarked on a programme of locally administered legal aid clinics.”
Lawyers volunteered their services to those clients who passed a
stringent eligibility test.- Naturally, following the English precedent,
the administration of the plan was entrusted to the profession. This
feature of legal aid in Ontario was not to be seriously contested for
almost twenty-five years. On the other hand, the voluntary, un-
remunerated provision of legal services represented a marked
departure from the British example.
It quickly proved difficult to provide legal services to large
numbers of applicants on a charitable basis. 8 By the early Sixties,
the task appears to have approached imposssibility. A series of
devastatingly critical articles appeared in the Toronto Globe and
Mail:
is outmoded, discriminatory,
In practice, [the Plan]
inadequate. It
certainly does not defend every person in this province who cannot
afford a lawyer.
Legal Aid in Ontario is still a charity given to those who, in the discretion
of the executive or local director of the Legal Aid Plan, are worthy of it….
… of 2,000 members of the bar who practice in Metropolitan Toronto,
only 100 give legal aid on a regular basis.9
These and other pressures culminated in the appointment of a
the Joint Committee on Legal Aid.1
blue-ribbon committee –
Composed of lawyers and civil servants, the Committee, like its
heir ten years later, stumped the province, then the continent, in
search of information. Their final report, tabled in 1965, eventuated
in the Legal Aid Act” of 1966 which, in substantially unaltered form,
has served to the present day.
The Plan’s salient features are, first, its administration by the
Legal Aid Committee of the Law Society of Upper Canada. Second,
the Plan is built.on a principle of freedom of choice which entitles
the qualified applicant to take his legal problem to any lawyer who
is prepared to act for him on a legal aid certificate. The lawyer, in
turn, is remunerated by the Plan on a fee-for-service basis. The Plan
0 The Law Society Amendment Act, 1951, S.O. 1951, c.45.
7See supra, note 4, 10-21 for a description and evaluation of the 1951 Plan.
SAs early as 1955, Joseph Sedgwick, a prominent Toronto counsel, was
quoted as recommending compensation for the (predominantly) younger
lawyers who were donating considerable services to the Plan.
9 The Globe and Mail, February 8, 1963.
1o The County of York Law Association may have been particularly in-
fluential in the result; in May, 1963, it had recommended the appointment of
a Royal Commission to investigate legal aid.
11 R.S.O. 1970, c239.
19761
LEGAL AID IN ONTARIO: MORE OF THE SAME?
employs no full-time lawyers to render professional services.12 Duty
counsel are retained to represent the unrepresented in the Provincial
Courts (Criminal and Family Divisions).
This fee-for-service, profession-administered model, has been
subjected to searching criticism in Canada and elsewhere.’ 3 It is
said to be the most costly delivery model available, heavily biased in
favour of litigation and against preventive services, largely incapable
of the kind of outreach which is necessary to attack the unmet need
for legal services, too diffused to husband limited resources by
developing energy-saving strategies of test cases and community
education, and too inflexible to respond to the demands of changing
circumstances.
Although legal services has never been a major public issue in
Ontario, a number of forces combined to create the climate which
ultimately gave birth to the Osler Report. The student legal aid
societies at the various law schools were important centres of
criticism and innovation from early on in the piece.’ 4 Parkdale
Community Legal Services in Toronto, first funded 5 in 1971 became,
under its first director, Professor Fred Zemans, a vocal public critic
of the existing Plan and a successful model of an alternative ap-
12 The lawyers who do the initial interviews for the purpose of establishing
entitlement to assistance do, of course, often give legal advice to applicants.
13 See L. Taman, The Legal Services Controversy: An Examination of the
Evidence, National Council of Welfare, Ottawa (1971) for a summary of the
writing to that date. The essay contains a more detailed examination of the
Ontario Plan than is possible here. Of course, there are a number of seminal
works which heavily influenced the critique of the fee-for-service delivery
model: E. and J. Cahn, The War on Poverty: A Civilian Perspective (1964) 73
Yale L.J. 1317; What Price Justice: The Civilian Perspective Revisited (1965-66)
41 Notre Dame Law. 927. Perhaps the first detailed critique of the Ontario Plan
was I. A. McDougall, Brief to the Special Senate Committee on Poverty:
Legal Assistance of the Poor and the Principle of Equality Under the Law
(1970), Proceedings, no27, p.132, Appendix C.
’14E.g., I. McDougall’s work, ibid., was born in the work of the Community
and Legal Aid Services Programme of Osgoode Hall Law School of York
University. The Students’ Legal Aid Society at the University of Toronto
was also a potent force and later made strong representations to the Task
Force. The same can be said of the other student legal aid organizations in
the Province.
15 This crucial seed money came from the federal Department of National
Health and Welfare, the Council for Legal Education on Professional Res-
ponsibility (a Ford Foundation subsidiary), and York University. The same
grant funded Saskatoon Legal Services, Pointe St Charles Legal Services
(Montreal) and Dalhousie Legal Services (Halifax), each of which had a
catalytic effect on events in its own province.
McGILL LAW JOURNAL
[Vol. 22
proach. Many other predominately neighbourhood-based legal ser-
vices organizations sprang up after 1971. Each of these took a
continuing, professional interest in changing the system.
Two other factors, perhaps the most telling, need to be mentioned.
First, the Ontario Plan, much vaunted as the leading Canadian model,
was not slavishly followed as new policies developed in other pro-
vinces;’ Manitoba, Nova Scotia, Saskatchewan and Quebec all
determined to devote considerable resources to the neighbourhood-
based model, employing full-time legal and para-legal professionals.
Saskatchewan opted for a near exclusive use of salaried lawyers.1 7
Saskatchewan and Quebec each saw fit to depart from Law Society
administration and to create quasi-governmental administrative
structures. These policy initiatives made the value of profession-
administered fee-for-service plan suspect, if not passd.
Second, and perhaps most importantly, rapidly rising costs fueled
by inflation and new demands on the Plan must have helped trip
the government trigger which created the Task Force. The 1965
Report of the Joint Committee proved prescient in declaring that
“no meaningful estimate of the cost of a legal aid programme …
can be made”.18 The cost to the province went from approximately
seven million dollars for the year ending in March, 196919 to over
seventeen million for the 1974-75 fiscal year.20 This last figure
represents an increase of approximately one-third over the previous
year. Even more to the point, the costs of the fee-for-service pro-
gramme are inherently open-ended, proving difficult to predict and
to control. While neither party is particularly forthcoming about
matters of this kind, it appears likely that the Law Society has been
under Government seige for a number of years over the issue of
rising costs. The Law Society has probably stoutly resisted Govern-
16For useful descriptions of the various provincial and territorial program-
mes see I. Cowie, The Delivery of Legal Aid Services in Canada, Department
of Justice, Ottawa (1974); R. Brooke, Legal Services in Canada – 1975 (forth-
coming, Modern Law Review). This excellent work is due to appear very
shortly.
17 See The Community Legal Services (Saskatchewan) Act, 1974, S.S. 1973-
74, c.11.
18 Supra, note 4, 93.
19 The Law Society of Upper Canada, Ontario Legal Aid Plan: Annual Report,
1969, 6 and Appendix B.
2O lbid. Note that the actual cost to the province was reduced in 1974-
to the criminal
75 by the federal contribution of four million dollars
legal aid programme. Federal cost-sharing in criminal legal aid began in 1973.
1976]
LEGAL AID IN ONTARIO: MORE OF THE SAME?
ment pressure to limit costs by various administrative expedients,21
insisting no doubt that changes in the level of service ought to come
from explicit Government policy, publicly determined. At approx-
imately the same time, new sources of revenue (from lawyers’ trust
funds and from federal cost-sharing in criminal legal aid) became
available. These factors must have combined to make a reassessment
of the Plan and its priorities seem particularly appropriate.
2. The Report
Reading the Report is like watching an experienced tightrope
walker. There is exhibited a natural anxiety in the face of the
waiting unpleasantness should one lean too far to one side or the
other, counterbalanced by the professional’s easy confidence in his
ability to complete the task without mishap. The result is a Report
which, at least to the casual onlooker, is scrupulously balanced in
tone, comprehensive in its coverage and yet perhaps a touch too
jittery in formulating its recommendations.
The finely balanced approach might be traced to a number of
factors. First, one expects that on a committee of a Supreme Court
judge, two Benchers of the Law Society of Upper Canada (one of
whom was vice-chairman of the Legal Aid Committee), a social
worker, a journalist, a former chairman of the Ontario Human
Rights Commission and a law professor, there might be certain
differences of approach and degree of commitment to the status quo
which would dicate compromise as the price of unanimity. Secondly,
as indicated by Appendices C and D to the Report the Task Force
received inputs of the widest variety. Initial meetings with Andrew
Lawson, the Director of the Plan, gave way to attendance by some
members at Parkdale Community Services Clinic. A submission by
Sydney L. Robins, then Treasurer and chief elected official of the
Law Society of Upper Canada (now a Justice of the Ontario Court
of Appeal) ,22 which the Task Force must have found more defensive
than helpful, had somehow to be balanced against the concerns ex-
pressed by groups like the Sarnia Anti-Poverty Coalition, the Ha-
21 For example, in 1972, the Plan, with only dubious legislative sanction, began
refusing applications for divorce certificates
to those without plans for
immediate remarriage. While the pressure for this expedient of doubtful
legality probably came from the cost-conscious Government,
the public
criticism came to the Law Society, which ultimately withdrew the’ “re-
marriage” limitation.
22An adaptation of the presentation is found in S. L. Robins, Q.C., The
Ontario Legal Aid Plan (1973) L. Soc. Gaz. 211.
McGILL LAW JOURNAL
[Vol. 22
milton North End Residents’ Organization and the Thunder Bay
Indian Friendship Centre. In all, there were 285 written submissions
and 105 oral submissions in the three months of hearings in ten
different centres throughout the province. Lastly, one asumes that
the need for future cooperation among the Law Society, the Legal
Aid Plan, the profession, citizens’ groups and others determined the
Task Force to try to say something generous about all concerned.
The Law Society, for example is praised for its efforts numerous
times throughout the Report, albeit occasionally with overtones of
the left-handed compliment:
… it is enough to say that our inquiries have led us to have nothing but
admiration for the founders of the Ontario Plan. We find that it has been
conscientiously and energetically administered by The Law Society and
that, particularly in the more recent years, a degree of imagination has
been brought to bear upon its administration. While it is a reasonably
comprehensive Plan, it is not sufficiently comprehensive for today.23
Student legal aid societies 4 and others25 are congratulated for
their innovative endeavours, while lip service is paid to the con-
ventional wisdom that ”
it is important to recall that many
‘poverty law’ problems are not primarily legal problems”2
Yet beneath the finely measured tone, the criticism of the existing
Ontario Legal Aid Plan is remarkably pointed. The application pro-
cedure is said to be:
-.. so complicated and prolonged that it produces in the lower courts
additional appearances and adjournments and therefore delays in the
whole court process and makes expensive demands upon the time of
judges, court personnel and witnesses.2
The supposedly representative nature of the Area Committees is
debunked. 8 The applicant’s vaunted freedom to choose his own
solicitor, said to be a hallmark of the fee-for-service model, is found
in the event to be “somewhat illusory”. 29 The reputedly enthusiastic
participation in the Plan” of practising lawyers is shown to be rather
desultory in some areas,30 including York County, the province’s
largest. “The concept of Legal Aid as ‘litigation’ is now clearly seen
as inadequate”, 31 while it is said with delicate understatement to be
23 Report, supra, note 1, 22.
24 Ibid., 77 et seq.
25 Ibid., 55.
26 Ibid., 40.
27 Ibid., 4.
28 Ibid., 5.
2Ibid., 12.
O Ibid., 1i-12.
z1 Ibid., 21.
19761
LEGAL AID IN ONTARIO: MORE OF THE SAME?
“apparent that the full potential of the Plan with regard to advice
and assistance has not been realized”.3 2 The complaints of applicants
who have been unfairly assessed as being able to repay part or all of
the cost of services rendered appear vindicated by the conclusion
that “[i]t is apparent that unrealistic contribution targets have been
set with respect to many clients”.3 3 The considerable inadequacy of
the York County facilities, responsible for about one-half the work
in the province, is set out in a particularly dismal passage3 4 The
well-merited praise for “[t]he ingenuity of Mr. Donkin (the Area
Director) and his staff in confronting these myriad difficulties”‘ 5
ought perhaps to have been juxtaposed with a blunter criticism
of the Plan’s senior administrators and policy makers who have
made no progress in dealing with the problem for many, many
years.
It is not possible fairly to summarize the wide range of re-
commendations made by the Task Force.36 Detailed recommenda-
tions would streamline the application procedure and liberalize
the financial eligibility criteria. Important recommendations for
changes in the Plan’s coverage would extend entitlement as of
right to include proceedings before administrative tribunals and
would provide for the first time for the funding of class actions in
appropriate cases. The duty counsel system would be extended to
Small Claims Court, to landlord and tenant matters in the County
Court and to areas of 9pecial need like psychiatric hospitals, prisons
and airport immigration centres. Advertising and information dis-
semination, directed not only to publicizing the Plan’s availability
but also to enhancing public awareness of legal rights and remedies,
would assume a higher priority. The charitable 25% fee reduction
presently endured by participating lawyers would be eliminated, to
be replaced (rather oddly) by a 10% reduction “to account for the
fact that there will be no ‘bad debts’ “6a These and a host of other
recommendations are sweeping in scope and forceful in presentation.
Unfortunately, one must hesitate to offer the same unreserved
praise to the two most important and, as so, most contentious re-
commendations.
321Ibid., 10.
33 Ibid., 85.
34 Ibid., 15.
35 Ibid., 108.
36 See “Summary”, ibid., 119 et seq.
3 a Ibid., 92.
McGILL LAW JOURNAL
[Vol. 22
The controversy in Ontario between the fee-for-service delivery
model and the neighbourhood legal services model has sometimes
reached the emotional intensity of holy war. The Report succeeds in
cooling out the debate, coming up with a series of quite detailed
recommendations 37 for the implementation of neighbourhood law
offices.
We do not, therefore, see the private office, the staffed neighbourhood
legal aid clinic or the rotating panel as competing but rather as com-
plementary models, all of which are designed to remedy the chronic
under-utilization of the profession and the law by the poor. Clinics, it
seems to us, may be appropriate where the presence of Legal Aid in a
forthright and obvious way is desirable in the interests of the poor of
the community and where the patterns of private law practice have
created a sense of psychological and physical inaccessibility. What we
seek is not to maximize the use of one technique or the other, but
rather to maximize the chance that the Plan will be used by its intended
beneficiaries. 38
How perfectly sensible! Yet the Report fails to give us, and
presumably the waiting policy-makers, any sense of the kind of mix
it has in mind. Some of the recommendations indicate a substantial
understanding of the peculiar problems of neighbourhood legal
services clinics. For example, specific reference is made to the
desirability of allowing clinics to specialize in certain areas of priority
as an answer to the inevitable caseload crisis. Given this level of
interest and insight, one wonders why the failure to give some advice
on the appropriate mix.
This matter is of crucial importance in policy-making in the
area. On the one hand, there exists the danger that, should con-
servative interests continue to dominate, only token funding would
go to neighbourhood law offices, leaving the existing, highly un-
satisfactory situation quite intact. The no less frightening Charybdis,
of course, is a policy which would shift the bulk of the existing pro-
gramme to overworked, underpaid clinic lawyers and para-pro-
fessionals. This could be done on the supposition that the pro-
gramme would then be less costly. It might not be realized, and
would certainly not be publicly declared, that the likely result of an
overbalancing to clinics would be that the Plan as a whole could
be crushingly overburdened with criminal and domestic matters,
leaving even less energy than at present for the kind of preventive
and organizing work that the neighbourhood law office does best.
37 Ibid., 51 et seq.
38 Ibid., 25.
1976]
LEGAL AID IN ONTARIO: MORE OF THE SAME?
This is a dilemma on which policy-makers could probably have
used more direction than they received.
Secondly, the Task Force made the quite unexpected recommenda-
tion that the administration of the plan be taken from the Law
Society of Upper Canada to be entrusted to a statutory non-profit
corporation named Legal Aid Ontario.3 9 The rationale for the
change is explained in the delicate prose characteristic of the Report:
A number of briefs were delivered and submissions made to us re-
presenting that the position of The Law Society under the present
scheme involves a conflict of interest. The public good must be the sole
purpose of the Legal Aid Plan, whereas The Law Society is by statute
the governing body of the legal profession and must be primarily
concerned with its welfare. The term “conflict of interest” may not be
one appropriate in the circumstances, and we state emphatically that
no suggestion was made to us at any time that The Law Society or its
Legal Aid Committee has in fact permitted such a conflict to develop.
Nevertheless, it is impossible to perceive the direction of the Legal Aid
Plan as being sufficiently single-minded if it is left in the hands of a
Committee of The Law Society, reporting to Convocation, the governing
body of that Society, both groups being composed overwhelmingly of
lawyers. 40
The proposal which follows 4′ is styled “a partnership between The
Law Society and the public, though we must recognize that the public
will be represented by those whom government nominates for this
purpose” 42
Given that the goal was a functioning organization independent
insofar as can be managed of both the profession and the govern-
ment, the Report’s proposal is as unsatisfying as can be imagined.
Firstly, was it necessary to give the profession at least ten repre-
sentatives on a twenty-person board of directors? While there can
be no doubt that representation from the profession is both ne-
cessary and desirable, representation begins to look like control
when it reaches fifty percent. Surely the very arguments employed
to justify shifting control from The Law Society militate against
the proposed arrangement. One hopes that when Legal Aid Ontario
is finally put in place, representation from the profession will be
rather less formidable. Secondly, rather more imagination might
have been used to protect Legal Aid Ontario from government
domination through its nominating powers. For example, the new
Area Committees, which are intended to be more broadly repre-
39 Ibid., 27 et seq.
40 Ibid., 23.
41 Ibid., 27 et seq.
42 Ibid., 24.
McGILL LAW JOURNAL
[‘Vol. 22
sentative, could have been given a certain number of seats on the
Board of Directors. Or again, it would have been desirable to have
reserved positions for representatives of the neighbourhood law
offices’ community advisory boards. Other constituencies –
the
student legal aid societies, the law teaching profession, the pro-
fessional social worker associations – might have been given
nominating rights to ensure a measure of diversity. As the proposals
stand, the representation of the public interest in the development
of legal services policy is far from guaranteed.
Lastly, the Report makes the essential recommendation that
Legal Aid Ontario be funded on a “global” basis, remaining free to
allocate priorities as it sees fit. While this is certainly desirable,
there is another crucial aspect of funding which went unexamined.
The Task Force ought, I think, to have strongly recommended a
system of guaranteed funding for periods of years. If the Legislature
were required to commit itself to given levels of support for each
of the next, say, five years, the often expressed concern about the
potential for government interference in the programme could be
effectively met. The concern is not, of course, without foundation.
As the largest single litigant in legal aid matters, the Government
ought to be encouraged by every structural device possible to live
by its finer instincts. It has not been unknown for governments,
harrassed and embarrassed by energetic legal service lawyers, to
cut down the pressure by simply cutting down the lawyers.4 3
3. More of the same?
The Osler Report was in the hands of the Government on
November 19, 1974. It was not released for public view until
March, 1975. As of the date of this writing (August, 1976), twenty
months after submission of the Report, there has been no policy
response from the Government of Ontario.
Changes have been made. The Legal Aid Committee of the Law
Society, for example, has been expanded to include the kind of lay
representation the Report envisaged for the proposed directorate of
Legal Aid Ontario. Through what appears to have been considerable
efforts on the part of the Attorney General of Ontario, interim
funding has been extended to a number of existing neighbourhood
legal services organizations which would otherwise have gone under
43 T. Branch, The Ordeal of Legal Services: How Poor People Won in Court
But Lost in OEO, January, 1971, The Washington Monthly 3, 5.
19761
LEGAL AID IN ONTARIO: MORE OF THE SAME?
for want of funds. These steps are not without importance. Yet the
Report, with characteristic indirection, was unequivocal in assessing
the complete inadequacy of the existing Plan. It holds not only that
there are many people whose legal rights are, for a variety of
reasons, at present going wholly by default but equally that there
are considerable areas of the law, notably those relating to housing,
landlord and tenant matters and welfare benefits, where expert
advice and assistance is urgently needed but is often hard to come
by.44 That this is an accurate evaluation of twenty-five years of
legal aid in Ontario is a great disappointment. That the Govern-
ment is apparently ready to tolerate the situation is a disgrace.
44 See Report, supra, note 1, 19-20.
