From Canadian Lawyer Magazine
By Jean Sorensen
The Canadian Bar Association BC branch gave the B.C. government's 2019 budget lukewarm praise as it sets out some goals in providing greater access to justice, but it was cool on providing funding details to ensure it happens.
"There was nothing in the AG's budget," says CBABC president Margaret Mereigh, adding that in discussions with civil servants regarding the budget, there are contingency funds available, but they were not under the control of the attorney general. (A budget breakdown of new money shows the AG's ministry will receive $9 million for main housekeeping expenditures such as updating equipment, IT infrastructure and expanding the capacity at the Justice Centre and retaining court clerks. The Civil Resolution Tribunal was the big winner and will receive $8 million over the next four years for a total of $32 million).
A government-released synopsis of the budget document entitled “Making Life Better” stated: “Budget 2019 is providing funding to pilot legal clinics in up to eight communities across the province, in partnership with the Law Foundation.” However, no funding details are provided.
The clinics will provide free legal advice and advocacy in poverty law, family law, child protection, children's and senior's law, Indigenous law and criminal law (in areas not covered by the Legal Services Society and will build on the Law Foundation's 40 locations). Executive director Wayne Robertson says he is still in discussion with the B.C. government on the details of the clinics and could provide few details at this time.
Mereigh says she is pleased there is partnering with the Law Foundation but these clinics should not be a substitute for putting dollars into areas such as legal aid.
"We have concerns that they will provide education rather than access to legal services," she says.
Mereigh says there is no mention of much-needed increased dollars for legal aid and to increase tariffs to legal aid lawyers. (The LSS budget was increased in the last 2018 budget with $26 million added over three years, with last year's contribution seeing $12 million in funding.) She says that ,today, legal aid in B.C. only exists in “very narrowly defined cases” through LSS and more funding is needed specifically in the area of family law.
She does not see the Maclaren report on allocation of legal aid resources, which is now under review by the AG, as a possible reason for delaying funding at this time when numerous reports over the years have documented the erosion of legal aid services. She says AG David Eby has a better grasp of the legal aid issue than other AGs and Jamie Maclaren's work in providing access to justice is well respected.
"Good people do good work, but at some point, B.C. has got to get started; there is just so much deterioration of the system," she says.
The low tariff rates paid to lawyers has been documented by the CBABC and is an ongoing issue, she says. It is also identified as an internal risk for the coming year in the service plan of the LSS, which is part of the 2019 B.C. budget report.
"Lawyer dissatisfaction with low tariff rates is an ongoing concern. The last time LSS raised its rates was in 2006. If we are unable to address the dissatisfaction, there is the risk that we will not be able to attract or retain highly skilled lawyers for our clients," the report said.
Mereigh says the situation that exists today is one where the intake for legal aid is narrowly prescribed at the front end, and at the back end, lawyers are struggling with the low LSS tariff. A report on legal aid issued by the CBABC in 2017 set the B.C. rate range from $84 to $92/hour compared with Ontario's rate of $135. The CBABC in updating its An Agenda for Justice report on the justice system for 2018 said LSS requires $38 million to $49 million in funding to increase the tariff to more realistic rates of $150 to $175 per hour.
Asked if the Insurance Corporation of B.C.'s financial crisis of a $1-billion loss — which has caused Eby to implement restrictions on cases that curb the revenues of personal injury lawyers — combined with more sought-after funding for legal aid lawyers isn't like robbing Peter to pay Paul. Mereigh disagreed.
"I don't see any connection to ICBC with money for legal aid," she says.
She does see the connection between provincial sales tax and legal aid. Those dollars paid by clients of lawyers are now directed into general revenue, not into legal aid as originally proposed to the profession when initiated. Lawyers are the only profession that charge PST on legal services in B.C.
"They should either eliminate the PST or the proceeds should go to legal aid," she says, as those collected can substantially increase legal aid funding. (The Vancouver Sun reported that in 2017 the government collected $210.6 million in PST revenues from legal services, yet it contributed from its coffers only $75 million to legal aid with an additional $16 million federal transfer payment for criminal legal aid topping up the figure, which still falls far short of the half mark.)
Mereigh also pointed to another source of funding that lawyers' clients are contributing to provide legal support for those in need. The interest from trust accounts held by lawyers is paid to the Law Foundation, which provides grants to a number of different B.C. organizations.
Indigenous justice issues remain a concern to the CBABC, she says, and the association is looking forward to learning more about the government's Indigenous Justice Strategy mentioned in initiatives in the budget. The strategy is focused on giving Indigenous people a larger role in the justice system. B.C. has 30 programs operating under the strategy, which includes restorative justice and keeping Indigenous children out of government care.
The CBABC wants to see more funding for the training of all court staff in cultural competency and more dollars put forward for Gladue reports when an Indigenous person is before the courts. The 11th B.C. Justice Summit held this past November cited concerns by those attending that B.C. needs thousands of Gladue reports written but is only producing a few hundred annually.
"We are trying to stay positive regarding this budget," says Mereigh, but there is little that indicates financial resolve for programs needed and even those mentioned.
"There is language that references these programs, but there is no money attached in the budget.”