|This is an unofficial archived version of The Legal Aid Services Society of Manitoba Act|
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. L105
The Legal Aid Services Society of 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")
"board" means the board of directors of the society constituted under section 5; ("conseil")
"director" means a member of the board; ("administrateur")
"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 the society; ("directeur général")
"graduate-at-law" means a student, as defined in The Law Society Act, who has completed the law courses prescribed under that Act; ("diplômé en droit")
"juvenile applicant" means an applicant under the age of 18 years; ("bénéficiaire mineur")
"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")
"panel" means the panel of solicitors maintained under section 11; ("répertoire")
"society" means The Legal Aid Services Society of Manitoba continued under this Act; ("Société")
"solicitor" means a member of the Law Society who is entitled to practise within the province as a barrister or a solicitor or both. ("procureur")
"The Legal Aid Services Society of Manitoba", a body corporate consisting of the persons appointed under section 5, is continued.
Subject to this Act and the regulations, the society may furnish legal aid in such civil and criminal matters, including appeals and matters before administrative tribunals, as are prescribed by the regulations,
(a) without charge, to any individual who is unable to pay therefor; and
(b) with a partial charge, to any individual who is able to pay a portion of the cost thereof;
upon the receipt of an application, and where the applicant is found eligible.
Subject to this Act and the regulations, the society 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.
The society may furnish legal aid to a group under subsection (1) in any matter that, in the opinion of the society, 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.
The society may furnish legal aid to a group under subsection (1)
(a) without charge; or
(b) with a partial charge;
as the society may determine and, where the society 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 affairs of the society shall be managed by a board of directors consisting of 12 persons appointed by the Lieutenant Governor in Council.
Three of the persons appointed under subsection (1) shall be selected by the Lieutenant Governor in Council from a list of seven solicitors to be submitted by the Law Society from time to time at the request of the Attorney-General.
At least four of the persons to be appointed under subsection (1) shall be persons who are not solicitors.
At least one of the persons to be appointed under subsection (1) shall be a solicitor who is an employee of the society.
One of the persons appointed under subsection (1) shall be a person nominated by the Attorney-General of Canada.
Each director shall hold office for a term of one year and, thereafter, until a successor is appointed.
The Lieutenant Governor in Council shall appoint one of the directors as presiding member, to preside at all meetings of the board.
The society shall pay to the directors, not including the director nominated by the Attorney-General of Canada, such remuneration as the Lieutenant Governor in Council may prescribe and such out-of-pocket expenses as they may incur in respect of their duties.
Any vacancy occurring on the board in respect of an unexpired term of office shall be filled by such person as the Lieutenant Governor in Council may appoint, to hold office for the remainder of the term and, thereafter, until a successor is appointed.
Where a vacancy occurs on the board in respect of the unexpired term of any of the directors appointed under subsection 5(2), the person appointed to fill the vacancy shall be selected by the Lieutenant Governor in Council from a current list submitted by the Law Society under that subsection.
A director whose term of office has expired may be re-appointed.
The board shall hold a meeting at least once in each month, except where the presiding member deems it unnecessary.
A majority of the directors constitute a quorum for the purpose of holding a directors' meeting and transacting business thereat.
An executive director, and such solicitors, office staff and other employees as may be required for the society'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 the society shall be deemed to form part of the Consolidated Fund.
The board, with the approval of the Attorney-General, may in each district appoint a solicitor as area director for that district and may fix the solicitor's remuneration and the executive director may be the area director for the Eastern Judicial District.
The society shall pay the salaries and remuneration of persons employed or appointed under section 9, and the board shall prescribe their duties.
An application for legal aid under section 3 may be made to the executive director, or to the area director for the district in which the applicant resides or is charged or is detained, in such manner and on such forms as may be prescribed by the regulations.
The eligibility of an applicant to receive legal aid under section 3, and the amount of the applicant's contribution, if any, to the cost thereof, shall be determined by the executive director or the area director who receives the application on the basis of the application and in accordance with the regulations.
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 the society notwithstanding that the members of the group or some of them would not be eligible as individuals, if the society 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.
The society 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 board or is employed under section 9, desiring to participate in the furnishing of legal aid shall become registered as a member of the panel.
A solicitor appointed as an area director may become registered as a member of the panel, but may not, unless employed for the society's purposes under subsection 9(1). undertake the furnishing of legal aid without the approval of the executive director.
Subject to section 15, any legal aid furnished to an individual under section 3 or to a group under subsection 4(1)
(a) shall be furnished by a solicitor selected from the panel by the individual or the group, as the case may be: or
(b) where the individual or the group declines or is unable to select a solicitor under clause (a), shall be furnished by a solicitor appointed from the panel by either
(i) in the case of an individual's application the area director authorized under section 11 to receive the application, or the executive director, or
(ii) in the case of a group's application, the executive director.
Subject to section 15, any legal aid furnished to a group under section 4 shall be furnished by a solicitor appointed from the panel by the executive director.
A solicitor selected by or appointed for an applicant under section 14 may decline to act for that applicant.
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.
Where permitted by The Law Society Act, and under the supervision of a solicitor, a graduate-at-law may perform such duties as the solicitor may assign in respect of legal aid which the solicitor is furnishing
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.
The society 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 the society under subsections (2), (3) and (4) in respect of a particular applicant, together with any other moneys paid to the society by or on behalf of that applicant: ("compte de bénéficiaire" )
"expenditure incurred" means solicitor's fees and disbursements and other expenses incurred by the society 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, 4 or 11, as the case may be, is payable to the society and, until paid, constitutes a debt due and owing to the society recoverable in any court of competent jurisdiction.
Where it has been determined that an applicant is eligible to receive legal aid in respect of a matter and the solicitor selected or appointed to furnish the legal aid has prior thereto received or thereafter receives any money from the applicant on account of fees or disbursements in connection with the matter, the solicitor shall forthwith pay the money to the society.
All moneys recovered by an applicant from an opposing party, by way of costs or otherwise, shall be paid to the society.
Subject to subsection (6), the society 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 the society 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, the society 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 the society is entitled to retain under subsections (5) and (6) are not subject to garnishment, attachment, execution or seizure.
The society 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 board for payment of those costs by the society and, if the board in its absolute discretion determines that in the special circumstances of the case the costs or a part thereof should be paid by the society, the society may pay on behalf of the applicant all or part of those costs as the board 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 the society out of that applicant's fund, if any, and constitutes a debt due and owing from the applicant to the society 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 the society 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.
An applicant or a solicitor may appeal to the executive director in respect of any decision of an area director, and to the board in respect of any decision of the executive director.
Where under subsection (1) an appeal is made to the board, the board may designate any one of its members to hear the appeal and upon such designation that member has, for the purposes of taking evidence and acquiring information, all the powers of the board.
The member designated under subsection (2) shall, after the completion of the hearing of the appeal, submit a report to the board as to the evidence taken, the information acquired and the facts found at the hearing, together with a recommendation as to the disposition of the appeal.
Upon receipt of a report under subsection (3), the board may
(a) determine the appeal: or
(b) hold a further hearing and determine the appeal:
and a decision of a majority of the members hearing the appeal constitutes a decision of the board.
The society 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 is a solicitor appointed or employed under section 9.
A solicitor furnishing legal aid remains subject to the rules of the Law Society.
For the purposes of this Act, the society may establish and maintain community legal aid centres as prescribed by the regulations.
The society 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.
The society may, on such terms and conditions not inconsistent with the regulations as the Attorney-General 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 Law Society Act.
Where permitted by The Law Society Act, and on such terms and conditions not inconsistent with the regulations as the Attorney-General may approve, the society 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 the society under this Act.
All information and communications in the possession of the society 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.
Notwithstanding subsection (1), and notwithstanding the provisions of The Law Society Act, the society, in carrying out its objects, is not deemed to be practising law within the meaning of that Act.
The funds of the society 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 Attorney-General, may pay grants to the society from and out of the Consolidated Fund with moneys authorized to be paid and applied for legal aid by an Act of the Legislature.
The society 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), the society 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 the society under subsection 25(2) as are used by the society 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 social allowances under The Social Allowances Act are deemed to be monies paid and used for the purposes of section 8 of The Social Allowances Act.
Upon being so authorized under section 11 of The Social Services Administration Act, the society 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), the society 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 the society may be necessary for the purposes of this section and section 8 of The Social Allowances Act.
The provincial auditor shall annually audit or cause to be audited the books, records and accounts of the society and submit a report thereof to the Attorney-General.
The board shall submit to the Attorney-General an annual report on its affairs, and such other statistical and financial reports as the Attorney-General may require.
The annual report submitted under subsection (1) shall, within 14 days after it is submitted, be tabled by the Attorney-General 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.
For the purpose of carrying out the provisions of this Act, the Lieutenant Governor in Council may make such regulations as are ancillary thereto and not inconsistent therewith, and every regulation made under this section has the force of law; and, without restricting the generality of the foregoing, 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) prescribing the standards and criteria for determining an applicant's eligibility for legal aid under section 3,
(i) without charge, or
(ii) with a partial 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 juvenile applicants under section 3;
(e) prescribing the basis for determining the amount of fees payable to a solicitor for furnishing legal aid;
(f) for the establishment and revision from time to time of a tariff of fees to be used in taxing a solicitor's bill;
(g) respecting the number, location, organization and staffing of such community legal aid 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) prescribing 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;
(k) prescribing the procedures to be followed and the forms to be used in carrying out the provisions of this Act.