|This is an unofficial archived version. |
This version was current from December 5, 2013 to March 28, 2014.
Note: It does not reflect any retroactive amendment enacted after March 28, 2014.
|Search this Act
C.C.S.M. c. L105
The Legal Aid Manitoba Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"applicant" means an individual or group, as the context may require, applying for or receiving legal aid; (« bénéficiaire »)
"application" means an application for legal aid; (« demande »)
"council" means the management council established under section 5; (« conseil »)
"councillor" means a member of the council; (« conseiller »)
"district" means a judicial district of the province as defined on July 1, 1983; (« district »)
"eligible" means eligible for legal aid in accordance with this Act and the regulations; (« admissible »)
"executive director" means the executive director of Legal Aid Manitoba; (« directeur général »)
"Law Society" means The Law Society of Manitoba; (« Société du Barreau »)
"legal aid" means legal advice and services available or furnished under this Act; (« aide juridique »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« ministre »)
"panel" means the panel of solicitors maintained under section 13; (« répertoire »)
"solicitor" means a member of the Law Society who holds a valid practising certificate under The Legal Profession Act; (« procureur »)
"youth applicant" means an applicant under the age of 18 years. (« bénéficiaire mineur »)
"The Legal Aid Services Society of Manitoba", a body corporate consisting of the persons appointed under section 5, is continued under the name "Legal Aid Manitoba".
The Corporations Act does not apply to Legal Aid Manitoba.
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.
Legal Aid Manitoba may provide legal aid to an applicant who is eligible in such civil and criminal matters as are prescribed by regulation
(a) without charge, to an individual who is determined, in accordance with the regulations, to be unable to pay for legal aid; and
(b) with a partial or full charge to an individual who is determined, in accordance with the regulations, to be able to pay a portion or all of the costs of providing legal aid.
Subject to the approval of the council, Legal Aid Manitoba may provide legal aid requested by the minister, a judge, or an officer of a court or tribunal, including providing representation as a friend of the court, and legal information or advice to an organization or agency, or to persons within a geographic area.
Subject to this Act and the regulations, Legal Aid Manitoba may furnish legal aid in accordance with subsections (2) and (3) to any group, whether incorporated or not, that submits an application and is found eligible under section 12.
Legal Aid Manitoba may furnish legal aid to a group under subsection (1) in any matter that, in the opinion of Legal Aid Manitoba, involves an objective or interest
(a) common to the members of the group; and
(b) relating to an issue of public interest including, without restricting the generality of the foregoing, any consumer or environmental issue.
Legal Aid Manitoba may furnish legal aid to a group under subsection (1)
(a) without charge; or
(b) with a partial charge;
as Legal Aid Manitoba may determine and, where Legal Aid Manitoba determines to furnish the legal aid with a partial charge, it shall also determine the amount of the group's contribution to the cost of the legal aid.
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.
Councillors are to be appointed for the term fixed in the order appointing them, which must not exceed three years.
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.
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.
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.
At least three of the councillors must be persons who are not solicitors.
The Lieutenant Governor in Council must designate one of the councillors as the chair and one as the vice-chair of the council.
The vice-chair has the authority of the chair if the chair is absent or unable to act, or when authorized by the chair.
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.
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.
At least once every two years, the council must review the tariff of fees paid to solicitors for providing legal aid.
The council must consult with the advisory committee when conducting the review.
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.
The council may make by-laws respecting the conduct and management of its business and affairs.
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.
The council must consult with the committee respecting any proposed changes to the tariff of fees paid to solicitors for providing legal aid.
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.
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.
The committee must elect one of its members as the chair and another as the vice-chair of the committee.
The committee must meet at least four times each year. One of the meetings must be a joint meeting with the council.
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.
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.
The chair of the council must submit an annual report to the minister about the activities of the advisory committee.
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.
An executive director, and such solicitors, office staff and other employees as may be required for Legal Aid Manitoba's purposes, may be employed under The Civil Service Act.
The provisions of The Civil Service Act and The Civil Service Superannuation Act, and the regulations made under those Acts, apply to persons employed under subsection (1).
Notwithstanding subsection 25(3), for the purposes of applying subsection 12(4) of The Civil Service Act to persons employed under subsection (1), the funds of Legal Aid Manitoba shall be deemed to form part of the Consolidated Fund.
The council may appoint an area director, who shall be a solicitor, for each district.
Legal Aid Manitoba shall pay the salaries and remuneration of persons employed or appointed under section 9, and the council shall prescribe their duties.
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.
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.
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.
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.
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.
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.
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.
An application for legal aid under section 4 may be made to the executive director in such manner and on such forms as may be prescribed by the regulations.
A group submitting an application for legal aid under section 4 may be found eligible by Legal Aid Manitoba notwithstanding that the members of the group or some of them would not be eligible as individuals, if Legal Aid Manitoba determines
(a) that the incomes of the members generally are at such a level that payment by the group of the legal costs in respect of which the application is submitted would work a serious hardship upon the group and would seriously hamper its activities; or
(b) that the group does not have sufficient funds to pay the legal costs in respect of which the application is submitted.
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).
Legal Aid Manitoba shall maintain an up-to-date panel of solicitors prepared to undertake the furnishing of legal aid under this Act.
Any solicitor including any solicitor who is a member of the council or is employed under section 9, desiring to participate in the furnishing of legal aid shall become registered as a member of the panel.
[Repealed] S.M. 1991-92, c. 16, s. 6.
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.
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.
A solicitor appointed to provide legal aid under section 14 may decline to act.
A solicitor may not delegate a legal aid matter or any portion thereof to another solicitor, whether or not the solicitors are practising in association with each other, except
(a) under exceptional circumstances, and then only with the consent of the applicant and the approval of the area director; or
(b) in respect of interlocutory or other preliminary steps in the matter.
An articling student under The Legal Profession Act may perform, as permitted under that Act, under the supervision of a solicitor the duties assigned by the solicitor in respect of the legal aid being furnished by the solicitor.
Despite the other sections of this Act but subject to the Criminal Code (Canada), Legal Aid Manitoba may employ persons who are not lawyers or students, within the meaning of The Legal Profession Act, to provide under the general direction and supervision of a solicitor services that would ordinarily be provided by lawyers or articling students.
No person who has been disbarred, suspended or struck off the rolls or books of the law society of any province shall be employed under this section.
A solicitor who has furnished legal aid shall submit a bill of costs to the executive director for taxation.
A bill submitted under subsection (1) shall be taxed by the executive director on the basis of the tariff established under and in the manner prescribed by the regulations.
Legal Aid Manitoba shall pay to any solicitor who submits a bill under subsection (1), such fees and disbursements as are taxed under subsection (2).
In this section,
"applicant's fund" means the total of all moneys received by Legal Aid Manitoba under subsections (2), (3) and (4) in respect of a particular applicant, together with any other moneys paid to Legal Aid Manitoba by or on behalf of that applicant; (« compte de bénéficiaire »)
"expenditure incurred" means solicitor's fees and disbursements and other expenses incurred by Legal Aid Manitoba in the course of and as a consequence of furnishing legal aid to an applicant. (« dépenses contractées »)
An applicant's contribution, as determined under section 3 or 4, is payable to Legal Aid Manitoba and, until paid, constitutes a debt due and owing to Legal Aid Manitoba recoverable in any court of competent jurisdiction.
Where a solicitor receives money from an applicant in respect of a matter for which the applicant is found by Legal Aid Manitoba, before or after the money is received by the solicitor, to be eligible for legal aid, the executive director may, at any time after the solicitor is authorized to provide legal aid in respect of the matter, require the solicitor to pay the money to Legal Aid Manitoba.
All moneys recovered by an applicant from an opposing party, by way of costs or otherwise, shall be paid to Legal Aid Manitoba.
Subject to subsection (6), Legal Aid Manitoba may retain out of an applicant's fund an amount equivalent to the expenditure incurred in respect of that applicant, or such portion thereof as Legal Aid Manitoba may determine, and shall pay the balance of the fund, if any, to the applicant.
Where an applicant's fund includes costs recovered from an opposing party, Legal Aid Manitoba may, under subsection (5), retain the total amount of those costs, notwithstanding that they exceed the expenditure incurred in respect of that applicant.
Moneys in an applicant's fund which Legal Aid Manitoba is entitled to retain under subsections (5) and (6) are not subject to garnishment, attachment, execution or seizure.
Legal Aid Manitoba is not liable for the payment of costs awarded against an applicant in any proceeding taken on the applicant's behalf under this Act.
Notwithstanding subsection (8), where costs are awarded against an applicant, the applicant may apply to the council for payment of those costs by Legal Aid Manitoba and, if the council in its absolute discretion determines that in the special circumstances of the case the costs or a part thereof should be paid by Legal Aid Manitoba, Legal Aid Manitoba may pay on behalf of the applicant all or part of those costs as the council may determine.
Where it appears that an applicant originally found eligible is in fact not eligible or has ceased to be eligible, no legal aid shall thereafter be furnished to that applicant, and the cost of any legal aid furnished while the applicant was not eligible may be retained by Legal Aid Manitoba out of that applicant's fund, if any, and constitutes a debt due and owing from the applicant to Legal Aid Manitoba recoverable in any court of competent jurisdiction.
Where in any matter costs are awarded in favor of an applicant, the costs shall be awarded and are recoverable without regard to the fact
(a) that the applicant may not be liable to Legal Aid Manitoba for payment of the expenditure incurred in respect of the matter, or for payment of some portion thereof; or
(b) that the amount of the costs awarded may exceed the actual amount of the expenditure incurred in respect of the matter.
In this section and section 17.2, "land" has the same meaning as it has under The Real Property Act.
Where an applicant who owns or has an interest in land in Manitoba receives legal aid, the executive director may register in a Land Titles Office a statement certifying that the applicant has received legal aid and setting out the name of the applicant, the legal description of the land, and Legal Aid Manitoba's address for service.
A statement may be registered under subsection (2) without the consent of any person owning or having an interest in the land, and without fee.
From the time of its registration, a statement registered under subsection (2) binds and forms a lien and charge on the applicant's estate or interest in the land against which it is registered for an amount equal to the cost of the legal aid provided to the applicant, before and after the date of registration; but no such statement has the effect of severing a joint tenancy or affecting a right under The Homesteads Act.
The executive director
(a) may discharge a lien or postpone the priority of a lien where, in his or her opinion, it is just and proper to do so; and
(b) shall, on payment to Legal Aid Manitoba of the cost of the legal aid, register a notice of discharge in the form prescribed under The Real Property Act.
In this section, "parent" means
(a) in a case where a biological parent, or a person declared to be the parent of a child under Part II of The Family Maintenance Act, is responsible for the care and control of a child, the biological parent of the child or the person declared to be the parent of the child under Part II of The Family Maintenance Act, as the case may be;
(b) in a case where an adoptive parent is responsible for the care and control of a child, the adoptive parent of the child; or
(c) in a case where a court of competent jurisdiction has appointed a person as guardian of the person of a child, the guardian of the child;
but does not include the Director of Child and Family Services or an agency under The Child and Family Services Act that is responsible pursuant to any Act or arrangement for the care or supervision of a child.
In the following circumstances, the cost of legal aid provided to a child constitutes a debt due and owing from the parent of the child to Legal Aid Manitoba recoverable in any court of competent jurisdiction:
(a) a child is charged with an offence;
(b) the child is ineligible to receive legal aid because of the income or other financial resources of the child's parent or parents, or the refusal or failure of the child's parent or parents to provide information to determine the child's eligibility for legal aid;
(c) the child's parent or parents refuse or fail to retain legal services on behalf of the child;
(d) Legal Aid Manitoba provides legal aid to the child as the result of a direction made under section 25 of the Youth Criminal Justice Act (Canada).
When legal aid is provided to a child in the circumstances set out in subsection (2), the executive director may register a statement in a Land Titles Office against land owned by the child's parent or in which the parent has an interest.
The statement must
(a) certify that legal aid was provided to the parent's child; and
(b) set out the following:
(i) the name of the parent whose child received legal aid,
(ii) the value of the legal aid provided,
(iii) the legal description of the land in question,
(iv) Legal Aid Manitoba's address for service.
The executive director may register a statement in a Land Titles Office only after
(a) all proceedings in relation to the offence in respect of which legal aid was provided are completed and the time allowed for an appeal has expired; or
(b) if an appeal has been commenced, all proceedings in relation to the appeal have been concluded.
From the time of its registration, a statement under this section binds and forms a lien and charge on the person's estate or interest in the land against which it is registered for an amount equal to the cost of the legal aid provided to his or her child. However, the statement does not have the effect of severing a joint tenancy or affecting a right under The Homesteads Act.
Subsections 17.1(3) and (5) apply, with necessary changes, to a statement registered under this section.
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) cancel the applicant's legal aid.
A solicitor may appeal a decision about the amount he or she is to be paid for providing legal aid.
An appeal is to be made in accordance with the procedure specified by the regulations.
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).
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.
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.
Legal Aid Manitoba is not liable for anything done or omitted to be done by a solicitor in the course of furnishing legal aid whether the solicitor is a private practitioner or a solicitor employed by Legal Aid Manitoba.
A solicitor providing legal aid remains subject to the rules and code of professional conduct of the Law Society.
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.
For the purposes of this Act, Legal Aid Manitoba may establish and maintain community law centres as prescribed by the regulations.
Legal Aid Manitoba may appoint counsel, as prescribed by the regulations, to attend in any court of the province on a daily or such other basis as may be required, for the purpose of advising or representing any person in a civil matter, or any person charged with a criminal offence or who is being detained or is under arrest.
Legal Aid Manitoba may, on such terms and conditions not inconsistent with the regulations as the minister may approve, encourage and assist, by means of financial support or otherwise, the projects of any group of full-time undergraduate students of the Faculty of Law at the University of Manitoba having objects similar to and not inconsistent with the objects of this Act and carried on under the supervision of the faculty in a manner not contrary to The Legal Profession Act.
Where permitted by The Legal Profession Act, and on such terms and conditions not inconsistent with the regulations as the minister may approve, Legal Aid Manitoba may make use of any full-time undergraduate student of the Faculty of Law at the University of Manitoba to assist in the work of Legal Aid Manitoba under this Act.
All information and communications in the possession of Legal Aid Manitoba relating to an applicant or the affairs of an applicant, is deemed to be privileged to the same extent that privilege would attach to information and communications in the possession of a solicitor.
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.
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.
The funds of Legal Aid Manitoba consist of moneys received by it from any source including, without restricting the generality of the foregoing, moneys granted to it for its use by the Parliament of Canada or the Legislature of Manitoba, or moneys retained under section 17.
For the purposes of subsection (1), the Minister of Finance, on the requisition of the minister, may pay grants to Legal Aid Manitoba from and out of the Consolidated Fund with moneys authorized to be paid and applied for legal aid by an Act of the Legislature.
Legal Aid Manitoba has charge, control and management of its funds, and may disburse, expend or otherwise deal with those funds in such manner, consistent with its objects and with this Act, as it may deem proper.
Without restricting the generality of subsection (3), Legal Aid Manitoba may invest any moneys not immediately required for its purposes in any investments authorized by the Minister of Finance.
Such moneys out of any grants paid to Legal Aid Manitoba under subsection 25(2) as are used by Legal Aid Manitoba to pay the cost of legal aid in civil matters furnished under this Act to persons who, while the legal aid is being so furnished, are receiving or are eligible to receive income assistance under The Employment and Income Assistance Act are deemed to be monies paid and used for the purposes of section 8 of The Employment and Income Assistance Act.
Upon being so authorized under section 11 of The Social Services Administration Act, Legal Aid Manitoba may, as agent for the government and subject to the provisions of that section, do any or all of the things set out in that section, as the authorization may provide.
Notwithstanding subsection 24(1), Legal Aid Manitoba may release to the Executive Director of Social Security appointed under The Social Services Administration Act such information in its possession relating to an applicant or former applicant or the affairs of an applicant or former applicant as in the opinion of the executive director of Legal Aid Manitoba may be necessary for the purposes of this section and section 8 of The Employment and Income Assistance Act.
The Auditor General shall annually audit or cause to be audited the books, records and accounts of Legal Aid Manitoba and submit a report thereof to the minister.
The council shall submit to the minister an annual report on its affairs, and such other statistical and financial reports as the minister may require.
The annual report submitted under subsection (1) shall, within 14 days after it is submitted, be tabled by the minister in the Legislature if it is then in session; but, if the Legislature is not then in session, the report shall be tabled not later than 14 days after the opening of the next ensuing session of the Legislature.
The Lieutenant Governor in Council may make regulations
(a) specifying the matters in respect of which legal aid may be furnished under section 3;
(b) respecting applications for legal aid and standards and criteria for determining an applicant's eligibility for legal aid under section 3,
(i) without charge, or
(ii) with a charge, and the amount thereof;
(c) prescribing methods for accommodating applicants under section 3 who reside in remote areas of the province;
(d) prescribing methods for accommodating youth applicants under section 3;
(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;
(e) respecting the basis for determining the amount of fees payable to solicitors for furnishing legal aid;
(f) for the establishment and revision from time to time of a tariff of fees to be used in taxing solicitors' accounts;
(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;
(g) respecting the number, location, organization and staffing of such community law centres as may be established under section 21, and the employment therein of graduates-at-law, and prescribing the remuneration and duties of persons employed therein;
(h) respecting the manner of appointment, number, location, duties and remuneration of counsel appointed under section 22;
(i) respecting assistance for student projects and the use of law students under section 23;
(j) prescribing methods for the dissemination of information to the public and to detained persons respecting legal aid;
(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;
(k) respecting the procedures to be followed and the forms to be used in carrying out the provisions of this Act.
(l) respecting any matter necessary or advisable to carry out the purposes of this Act.
|Table of Contents|