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The Legal Aid Services Society of Manitoba Amendment Act

This is an unofficial version.
If you need an official copy, contact Statutory Publications.

S.M. 2004, c. 50

Bill 47, 3rd Session, 38th Legislature

The Legal Aid Services Society of Manitoba Amendment Act

(Assented to December 9, 2004)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. L105 amended

1           The Legal Aid Services Society of Manitoba Act is amended by this Act.

2           The title of the English version is replaced with "THE LEGAL AID MANITOBA ACT".

3           Section 1 is amended

(a) in the definition "executive director", by striking out "the society" and substituting "Legal Aid Manitoba";

(b) by repealing the definitions "board", "director" and "society"; and

(c) by adding the following definitions:

"council" means the management council established under section 5; (« conseil »)

"councillor" means a member of the council; (« conseiller »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« ministre »)

4           Section 2 is amended by adding "under the name "Legal Aid Manitoba"" at the end.

5           The following is added after section 2:

Purpose

2.1          Legal Aid Manitoba is to serve the public interest by

(a) providing quality legal advice and representation to eligible low-income individuals;

(b) administering the delivery of legal aid in a cost-effective and efficient manner; and

(c) providing advice to the minister on legal aid generally and on the specific legal needs of low income individuals.

6           Sections 5 to 8 are replaced with the following:

Management council

5(1)        The management council of Legal Aid Manitoba is to consist of at least seven but no more than nine members appointed by the Lieutenant Governor in Council.

Term of appointment

5(2)        Councillors are to be appointed for the term fixed in the order appointing them, which must not exceed three years.

Appointment continues

5(3)        After a councillor's term expires, the councillor continues to hold office until he or she is reappointed, a successor is appointed or the appointment is revoked.

Law Society nominees

5(4)        Three of the councillors must be selected by the Lieutenant Governor in Council from a list of seven solicitors submitted by the Law Society at the request of the minister.

Vacancy of Law Society nominee

5(5)        If a vacancy occurs on the council with respect to a solicitor appointed under subsection (4), the solicitor appointed to fill that vacancy is to be selected by the Lieutenant Governor in Council from a new list of seven solicitors submitted by the Law Society at the request of the minister.

Non-lawyers on council

5(6)        At least three of the councillors must be persons who are not solicitors.

Chair and vice-chair

5(7)        The Lieutenant Governor in Council must designate one of the councillors as the chair and one as the vice-chair of the council.

Duties of vice-chair

5(8)        The vice-chair has the authority of the chair if the chair is absent or unable to act, or when authorized by the chair.

Remuneration

5(9)        Legal Aid Manitoba must pay councillors the remuneration specified by the Lieutenant Governor in Council in the order appointing them and must reimburse councillors for reasonable expenses incurred in performing their duties.

Duties of council

6           The council is to direct the business and affairs of Legal Aid Manitoba, and must

(a) oversee the financial management of Legal Aid Manitoba;

(b) manage the resources of Legal Aid Manitoba efficiently;

(c) establish operational and strategic policies for Legal Aid Manitoba; and

(d) evaluate the quality and cost-effectiveness of the services provided by Legal Aid Manitoba and the delivery of legal aid in Manitoba.

Tariff review

6.1(1)      At least once every two years, the council must review the tariff of fees paid to solicitors for providing legal aid.

Consultation with advisory committee

6.1(2)      The council must consult with the advisory committee when conducting the review.

Report to minister

6.1(3)      The council must provide the minister with a report on the findings of the review. The report must set out any recommended adjustments to the tariff of fees and provide an explanation for any recommendation.

By-laws

7           The council may make by-laws respecting the conduct and management of its business and affairs.

Advisory committee

8(1)        The council must establish an advisory committee to

(a) provide advice to the council on matters of general or regional concern respecting the provision of legal aid;

(b) provide advice to the council on the needs of individuals and groups receiving legal aid; and

(c) study and make recommendations to the council on any matter referred to it by the council.

Consultation re tariff changes

8(2)        The council must consult with the committee respecting any proposed changes to the tariff of fees paid to solicitors for providing legal aid.

Considerations re appointments

8(3)        When appointing persons to the committee, the council must ensure that the committee

(a) includes persons from rural and northern Manitoba;

(b) reflects the cultural diversity of Manitoba; and

(c) includes persons who are familiar with issues commonly faced by low-income individuals.

Lawyers on committee

8(4)        The committee must include

(a) one appointee selected from a list of three criminal defence solicitors submitted by the Manitoba Bar Association;

(b) one appointee selected from a list of three solicitors practising family law submitted by the Manitoba Bar Association; and

(c) one appointee selected from a list of three solicitors employed by Legal Aid Manitoba submitted by the Legal Aid Lawyers' Association.

Chair and vice-chair

8(5)        The committee must elect one of its members as the chair and another as the vice-chair of the committee.

Meetings

8(5.1)      The committee must meet at least four times each year.  One of the meetings must be a joint meeting with the council.

Executive director and chair to attend

8(5.2)      The executive director and the chair of the council must attend each meeting of the committee or send a delegate on his or her behalf.

Reimbursement for expenses

8(6)        Members of the committee are to serve without remuneration, but Legal Aid Manitoba may reimburse them for reasonable expenses incurred in performing their duties on the committee.

Annual report on advisory committee activities

8.1         The chair of the council must submit an annual report to the minister about the activities of the advisory committee.

Information to advisory committee

8.2         The chair of the council must provide the advisory committee with the following information on an annual basis:

(a) the number of applications for legal aid;

(b) the number of applications approved;

(c) the number of eligible applicants who requested the appointment of a specific solicitor to provide legal aid;

(d) the number of eligible applicants who had legal aid provided by their requested solicitor.

7           Section 11 is replaced with the following:

Applying for legal aid

11(1)       An application by an individual for legal aid

(a) must be made in the manner required by the regulations; and

(b) must be submitted to the executive director or the area director for the district in which the applicant lives or is charged or detained.

Authorization to disclose financial information

11(2)       In order to determine whether an applicant is, or continues to be, eligible to receive legal aid, the applicant must complete a written consent form authorizing third parties to disclose financial information about the applicant to Legal Aid Manitoba.

Additional information

11(3)       An applicant must provide any additional information or evidence that the executive director or an area director requests to determine whether the applicant is, or continues to be, eligible to receive legal aid.

Offences re eligibility

11(4)       A person who

(a) fails to promptly advise the executive director or an area director of any change in financial circumstances that may affect his or her eligibility to receive legal aid; or

(b) intentionally makes a false statement or a misrepresentation, or gives false or misleading information, for the purpose of obtaining legal aid;

is guilty of an offence and is liable on summary conviction to a fine of not more than $10,000.

Investigating applicant's finances

11.1        In assessing the eligibility of an applicant, Legal Aid Manitoba

(a) must investigate the financial resources and obligations of an applicant who is charged with

(i) a criminal organization offence as defined in section 2 of the Criminal Code (Canada), or

(ii) any other offence prescribed by regulation; and

(b) may investigate the financial resources and obligations of any other applicant.

Eligibility

11.2        The executive director or the area director who receives an application for legal aid under section 3 (legal aid for individuals) must determine, in accordance with the regulations,

(a) whether the applicant is eligible to receive legal aid; and

(b) whether the applicant will be required to pay a portion or all of the costs of providing legal aid, and, if so, the portion the applicant will be required to pay.

Lawyer's duty to disclose

11.3        If, in the course of providing legal aid to an applicant, information comes to the attention of a solicitor that the applicant

(a) is not eligible for legal aid; or

(b) was not, at any time since the applicant's application was submitted, eligible for legal aid;

the solicitor must promptly provide that information to the executive director or an area director.

8           The following is added after subsection 12(2):

Criminal organization ineligible

12(3)       A criminal organization as defined in section 2 of the Criminal Code (Canada) is not eligible for legal aid under section 4 (legal aid to groups).

9           Section 14 is replaced with the following:

No right to choose lawyer

14(1)       The executive director or an area director must appoint a solicitor who is a registered member of the panel to provide legal aid to an eligible person or group.

Consideration of request

14(2)       In making the appointment, the executive director or area director must consider any request by the person or group for the appointment of a specific solicitor.

10          Subsection 15(1) is amended

(a) by striking out "selected by or appointed for an applicant" and substituting "appointed to provide legal aid"; and

(b) by striking out "for that applicant" in the English version.

11          Section 18 is replaced with the following:

Appeal by applicant

18(1)       An applicant may appeal a decision to

(a) reject the applicant's application;

(b) impose conditions or restrictions on the provision of legal aid to the applicant; or

c) l'annulation des services d'aide juridique qu'il reçoit.

Appeal by lawyer

18(2)       A solicitor may appeal a decision about the amount he or she is to be paid for providing legal aid.

Procedure on appeal

18(3)       An appeal is to be made in accordance with the procedure specified by the regulations.

Who hears appeals

18(4)       An appeal is to be heard

(a) by an appeal committee established by the regulations, if it deals with

(i) a decision made by the executive director, or

(ii) any other decision prescribed by the regulations; and

(b) by the executive director, if it deals with a decision made by any employee of Legal Aid Manitoba other than the executive director, except a decision referred to in subclause (a)(ii).

Decision on appeals

18(5)       After hearing the appeal, the executive director or appeal committee, as the case may be, may

(a) confirm or set aside the decision under appeal;

(b) make any decision that could have been made by the original decision maker; or

(c) refer the matter back, with directions, to the original decision maker for further consideration.

No further appeal

18(6)       The decision of the executive director on hearing an appeal under clause (4)(b) is final and may not be appealed to an appeal committee.

12          Section 20 is replaced with the following:

Law Society rules and code of conduct apply

20(1)       A solicitor providing legal aid remains subject to the rules and code of professional conduct of the Law Society.

Conflict of interest

20(2)       A solicitor employed by Legal Aid Manitoba does not commit a breach of a rule or the code of professional conduct of the Law Society relating to conflict of interest by reason only of advising or representing a person in a dispute or case involving another person who is or has been advised or represented by another solicitor employed by Legal Aid Manitoba.

13          Subsection 24(2) is replaced with the following:

Exception

24(2)       Despite subsection (1), Legal Aid Manitoba may disclose information about an applicant's eligibility

(a) to a person retained by it to conduct an investigation under section 11.1; and

(b) in a civil or criminal proceeding brought against the applicant with respect to the applicant's eligibility to receive legal aid.

14          The following is added after section 24:

Society not practising law

24.1        Despite The Legal Profession Act, Legal Aid Manitoba, in carrying out its objects, is not considered to be practising law within the meaning of that Act.

15          Section 27 of the English version is amended by striking out "provincial auditor" and substituting "Auditor General".

16          Section 29 is amended

(a) by adding the following after clause (d):

(d.1) respecting investigations of the financial resources and obligations of applicants;

(d.2) prescribing offences for the purposes of subclause 11.1(a)(ii);

(d.3) respecting the rejection or cancellation of legal aid and the imposition of conditions or restrictions on the provision of legal aid, including, without limitation, the cancellation or imposition of conditions or restrictions to prevent applicants from

(i) receiving legal aid in civil matters that are frivolous or have little chance of success, or

(ii) delaying matters unreasonably or using legal aid for vexatious purposes;

(b) in clause (g) of the English version by striking out "centresas" and substituting "centres as";

(c) by adding the following after clause (f):

(f.1) respecting appeals under section 18;

(f.2) respecting the establishment of an appeal committee referred to in section 18 and providing for its powers and duties;

(f.3) for the purposes of subclause 18(4)(a)(ii), prescribing decisions from which an appeal is to be heard by an appeal committee;

(d) by adding the following after clause (j):

(j.1) respecting the organization of the operations of Legal Aid Manitoba to avoid conflicts of interest and the unauthorized disclosure of information about applicants;

(e) by adding the following after clause (k):

(l) respecting any matter necessary or advisable to carry out the purposes of this Act.

Various amendments to Act

17          The provisions of the Act listed in Schedule A are amended as specified in Schedule A.

Consequential amendments

18          The Acts listed in Schedule B are amended as specified in Schedule B.

Coming into force

19          This Act comes into force on a day to be fixed by proclamation.

SCHEDULE A

AMENDMENTS TO THE LEGAL AID SERVICES SOCIETY OF MANITOBA ACT

The Act is amended as follows:

Amendment Provisions amended
(a) by striking out "the society" wherever it occurs in the English version of the provisions identified in the opposite column and substituting "Legal Aid Manitoba"; 3(2); 4; 5; 9(3); 12(2); 15.1(1); 17; 17.1(5); 19; 21; 23(2); 24; 25; 26; 27
(b) by striking out "The society" wherever it occurs in the English version of the provisions identified in the opposite column and substituting "Legal Aid Manitoba"; 3(1); 4; 5(8); 10; 13(1); 16(3); 17(8); 19; 22; 23(1); 25(3)
(c) by striking out "Society" in the English version of the provisions identified in the opposite column and substituting "Legal Aid Manitoba"; The section headings to the following provisions: 5(4); 17(6) and (9); 24(2); 26(2)
(d) by striking out "society" in the English version of the provisions identified in the opposite column and substituting "Legal Aid Manitoba"; The section headings to the following provisions: 17(5); 19; 25(1)
(e) by striking out "the society's" and substituting "Legal Aid Manitoba's" in the English version of the provisions identified in the opposite column; 9(1); 17.1(2)
(f) by striking out "Minister of Justice" wherever it occurs in the provisions identified in the opposite column and substituting "minister"; 3(2); 23; 25(2); 27; 28
(g) by striking out "board" in the English version of the provisions identified in the opposite column and substituting "council". 3(2); 9(4); 10; 13(2); 17(9); 28(1)

SCHEDULE B

CONSEQUENTIAL AMENDMENTS

The English version of the following Acts is amended in the provisions listed opposite the title of the Act:

(a) by striking out "The Legal Aid Services Society of Manitoba" wherever it occurs and substituting "Legal Aid Manitoba":

Name of Act Provision(s) amended
The Criminal Property Forfeiture Act, S.M. 2004, c. 1 19(c)
The Employment and Income Assistance Act 8(3)
The Law Enforcement Review Act 24(7)(c)
The Legal Profession Act 19(3)(a)(ii); 90(1)(a); 90(3)
The Public Sector Compensation Disclosure Act 4
The Victims' Bill of Rights 24

(b) by striking out "The Legal Aid Services Society of Manitoba Act" and substituting "The Legal Aid Manitoba Act":

Name of Act Provision(s) amended
The Employment and Income Assistance Act 8
The Legislative Assembly Act 17(1)(f)
The Public Sector Compensation Disclosure Act 4

(c) by striking out "Legal Aid Services Society Act" and substituting "Legal Aid Manitoba Act":

Name of Act Provision(s) amended
The Public Sector Compensation Disclosure Act section heading to section 4