Law Times

LAW TIMES / FEBRUARY 1, 2010 NEWS Lawyers make gains as boycott ends BY TIM SHUFELT Law Times T he increases to legal aid tariffs wrested from the provincial government last week are still far off what can be earned in other areas of law, says a veteran Toronto criminal lawyer. But the agreement that ended the legal aid boycott will at least help to reduce the disincentives to joining the criminal bar for those with a passion for the work, according to John Struthers. "We're still way behind. At the same time, there is a cadre of very talented lawyers that like doing these cases." In the meantime, Struthers says measures to increase fund- ing for expert defence witnesses were desperately needed. "There's virtually no psychia- trist that will take legal aid cases. That's just ridiculous." The new fee schedule, far Struthers notes, is off the rate the province pays to outside counsel — about $190 an hour. But Struthers believes the Criminal Lawyers' Association won all the concessions it could from the provincial government. "There's no question that had we rejected it, we would have been in for a multi-year war." As talks between the bar and the Ministry of the Attorney General approached the deadline last week while the CLA threat- ened to broaden the boycott, the parties reached an 11th-hour deal to bring an end to the eight- month job action. The deal calls for annual five- per-cent increases to legal aid tariffs paid to criminal, immi- gration and refugee, family, and mental health lawyers. Two of those increases will take place this year — one in February and one in April — and then annually until 2015. Compounded, the rate hikes amount to a 40.5-per-cent increase by 2015. "I'm very satisfied that we're taking a big step in the right direction," says Frank Addario, the former CLA president who spearheaded the boycott. He concedes, however, that lawyers will always be able to earn more lucrative fees in other practice areas. "There is a public service component to legal aid. That's an article of incorporation of every criminal law practice." He also points out the deal provides for a new tariff tier that offers higher rates for complex cases. They are to rise to around $160 per hour by 2015. Attorney General Chris Bentley says the province is mak- ing the commitments without having to allocate additional funding, at least over the next four years. That's because the deal makes use of the four-year, $150-mil- lion boost to legal aid funding announced last September. "We figured out how to leverage the funding," Bentley says. He adds the settlement has a built-in escalator to provide extra money after the fourth year. "If additional funding is required, we'll provide that," Bentley says, who notes the increased tariffs are necessary to maintain the integrity of the justice system. "Unless people are paid rea- they're not going to sonably, stick around." That's a refrain boycotting lawyers themselves issued repeat- edly over the past eight months. CLA president Paul Burstein says the deal makes strides in attracting new talent into the realm of criminal defence. "You can't isolate the rates alone as to what's in this package. There's a great focus in the agree- ment on younger lawyers." Specifically, it eliminates the 25-per-cent penalty junior discouraging young lawyers," Burstein says. In addition, Burstein notes 'Unless people are paid reason- ably, they're not going to stick around,' says Chris Bentley. counsel faced in working on complex criminal cases. As well, Legal Aid Ontario has commit- ted to creating a junior-lawyer mentoring program in consulta- tion with the CLA. "Now, there's nothing really LAO's annual billing limits will rise on the same scale as the tariff increases. For its part, the CLA agreed to encourage its members to start accepting legal aid certificates again for all types of cases. In addition, the association committed to working with the government to achieve its Justice on Target goals, includ- ing a 30-per-cent reduction in the average number of days and court appearances needed to complete a criminal case. The deal also includes a for- mal commitment by the prov- ince to an independent private defence bar as opposed to a public defender model, a move Burstein says will help to ensure the CLA has a strong voice on legal aid funding for the foresee- able future. "Legal Aid is very anxious to repair the divide it helped to cre- ate during the boycott." For those accused left strand- ed by the boycott, new legal aid certificates will most likely be issued, Burstein says. At the same time, while he's not certain what will happen with the outstanding enhanced funding applications a num- ber of those accused brought forward during the boycott, he says the involvement of the judiciary will no longer be necessary. Besides the rate increase, the agreement includes new block fees for standard cases reflecting both the higher tariff amounts and 50 per cent of the average discretionary increase to cur- rent tariff awards. LT Judges can sit past 75, court rules Federal Court ruled last week. The decision comes after Toronto lawyer M Rocco Galati issued a notice of motion last year on behalf of his client, Luis Felipa, for a dec- laration that such judges are not statutorily or constitutionally permitted to sit on the bench. Galati argued the practice of approving them constituted "a breach of the applicant's consti- tutional rights to rule of law, constitutionalism, and federalism; embarrassingly invites and brings the administration of justice into disrepute by tainting and breaching the applicant's right(s) to a fair and independent judiciary." andatory retirement doesn't apply to former judges who continue to work occasionally past age 75, the The challenge raised concerns about poten- tial challenges of rulings by deputy judges who have continued to sit beyond retirement at 75. It centred on the jurisdiction of deputy judge Louis Tannenbaum, 77, to hear Felipa's immigration matter. In his decision last week, Federal Court Chief Justice Allan Lutfy said the practice is legal. "Simply put, deputy judges do not hold office as judges of the Federal Court and can- not, therefore, cease to hold an office to which they have not been appointed," he wrote. LT G.K. 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• Cover
• Boycott Ends
• Judicial Retirement
• Focus On Family Law/Trusts and Estates