Citizenship and Immigration Committee on Dec. 12th, 2006

[John Frecker]

The federal government contributes to the provincial plans.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

But the actual province would pay for the legal aid services itself?

[John Frecker]

Yes, and they get grants from the federal government to defray some of the costs.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

These grants are negotiated between the provinces and the federal government?

[John Frecker]

That's correct.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

And it's dependent on a whole lot of factors, not necessarily RAD? The negotiations of the various—

[John Frecker]

It's criminal law, it's family law, it's civil legal aid. There's a whole bundle of things.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

But we do know one thing, that by having the RAD provisions implemented, it will be an extra drain or an extra requirement on the legal aid services provided by the province.

[John Frecker]

Yes, and, as I said, I made a mistake when I gave you the $6 million figure. It would be somewhere between one and three million.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

I'm not so much concerned about the figure right now, but the province would be providing the legal aid services. Would you agree with me that as between provinces there are differences in the provision of services as among the legal aid commissions or agencies, in that some use staff lawyers, some use private lawyers, and some have other contractual terms? Is that correct?

[John Frecker]

Absolutely. In fact, the level of service varies wildly across the country.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

And since the level of service varies wildly, so would the cost.

[John Frecker]

And the manner of delivery.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

The manner of delivery and the amount of costs would vary.

How do you come to a cost figure, when there's such a variance from province to province?

[John Frecker]

What we did when we were doing the analysis was look at the procedures each province used and extrapolate how much extra it would cost in that jurisdiction if they had lawyers preparing RAD applications instead of preparing leave for judicial review applications.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Is there a cost difference between staff lawyers providing a service and private lawyers doing so?

[John Frecker]

That's an interesting question. There's been a lot of literature on it. Theoretically, services provided by staff lawyers are cheaper, because in judicare, with billing per hour, there's less control over cost, but some studies have indicated that when you have legal aid clinics with staff lawyers, the effort they expend on the cases tends to be greater than a lawyer who is on a legal aid tariff would put in on the same case. It may be that there's a higher quality at the same price, or it may be that when.... The evidence is not conclusive. It certainly seems that—

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

You would agree with me that it's the kind of thing private lawyers would certainly be amenable to: using the system to the extent they could to the maximum benefit of their client.

[John Frecker]

In fact that's one of the central theses of the study, that there's an economically rational behaviour to maximizing income from a program like that. The incentives to control costs are not as strong as they would be in a situation with a paying client.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

As a non-paying client, wouldn't you obviously want to use every resource available, if somebody were paying for your legal costs, privately under contract or through a clinic?

[John Frecker]

The way the legal aid plans have controlled that cost typically has been to put a cap on what you can bill. Yes, you can take a claim, but the maximum you can bill for that particular service, regardless of how much time you spend on it, is x dollars.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

By the same token, if I were a client, so to speak, I would want to use not only the appeal to RAD, which you say is one avenue, but if I were unsuccessful, I would also want to use legal services in another avenue, and that's to go to the Federal Court of Appeal for judicial review; would I not?

[John Frecker]

Okay. I come back to the reasoning why.... I hear what you're saying, but please allow me to explain.

If the granting of legal aid is based on a merits test—whether there is a reasonable prospect for success, and most legal aid plans do have that threshold—and you have a RAD that's doing its job properly, the likelihood of cases that are left over after the RAD has done its job having a reasonable prospect of success in the Federal Court goes down demonstrably. The number of cases that would likely qualify for legal aid would predictably be reduced.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Obviously, if you were to err on the side of the client to appeal if there were any kind of question at all, certainly that wouldn't eliminate appeals to the Federal Court.

[John Frecker]

No. I'll explain.

Any statutory tribunal is subject to review by the Federal Court, but it's on leave, and the Federal Court, if it has a high level of confidence in the tribunal, is likely to dismiss a large number of the leave applications.