Legal Aid overpaid lawyer, but doesn’t know by how much

Office was 5 km away from court despite billing higher ‘remote’ rate

Legal Aid Ontario’s process for verifying lawyers’ billings is “ineffective” and the agency is failing to ensure lawyers are providing quality services to the public, Ontario’s auditor general says.

Bonnie Lysyk’s report, released Wednesday, highlights the case of a lawyer who billed Legal Aid $150,000 between 2013 and 2016 using the “guaranteed daily rate” — the fixed $1,181 fee paid to lawyers each time they have to fly to remote courts or drive to a courthouse more than 200 kilometres from their office. The problem? The office of the lawyer in question was only five kilometres from the courthouse.

Legal Aid stopped paying the lawyer the daily rate after identifying the situation in 2016.

But the auditor general found the agency has not examined how much of the money the lawyer should pay back.

“Legal Aid Ontario did not have records to determine how much the billing should have been,” the report says.

Legal Aid does not have direct access to court information containing the start and end time for each court proceeding, according to the report.

It has to ask the lawyer to get copies of the documents from court and provide them to Legal Aid in order to confirm the accuracy of the billing.

“As a result, Legal Aid Ontario does not routinely verify lawyers’ billing for the time spent in courts,” the report says.

More than 90 per cent of “certificate services” — a lawyer taking on a case — were provided by private-sector lawyers paid by Legal Aid in 2017-18, the report says.

Yet despite the fact that Ontario law gives Legal Aid the authority to ask the provincial legal regulator, the Law Society of Ontario, to perform “quality assurance audits” of lawyers, it has never done so, the report says.

Meanwhile, complaints made against lawyers to Legal Aid were up 30 per cent in 2016-17 compared to the previous year. Furthermore, the agency lacks a policy to keep track of lawyers who have completed their annual continuous learning requirements to ensure they’ve maintained the required competency level.

The report finds that in 2016, a total of1,959 of the 5,423 private lawyers used by Legal Aid did not submit their annual selfreport to the agency showing they had completed their learning requirements.

Legal Aid also does not impose consequences on lawyers who have not submitted their selfreport, the report finds.

“Of the 1,959 lawyers who did not self-report, 395 billed Legal Aid Ontario $7.7 million during the period from April 1, 2017, to March 28, 2018,” the report says.

In its official response to the auditor general, Legal Aid says it does monitor lawyers’ work and billings.

But it says it “will explore with the Law Society of Ontario the feasibility of a quality service review that meets the needs of LAO.

“If not feasible, LAO will seek changes to the regulation,” it adds.

It also says it is finalizing a review of the guaranteed daily rate.

“Legal Aid Ontario has rigorous processes in place, including an internal investigation and audit team, to ensure that billing and accounts are compliant,” Legal Aid spokesperson Graeme Burk told the Star.

“Legal Aid Ontario is working with the Ministry of the Attorney General to finalize a process that will give Legal Aid direct access to court information in the Ontario Court of Justice.”

While there will be exceptions, most criminal lawyers are not overbilling Legal Aid, said Michael Mandelcorn, vice- president of the Criminal Lawyers’ Association and chair of the association’s legal aid portfolio.

“To the contrary, most criminal lawyers are underpaid for the work provided to low-income residents of Ontario through the legal aid plan,” he said.

“We support greater accountability for the payment of public funds.”

Legal Aid has faced heavy criticism for years from legal groups that its low-income threshold level is far too low, leaving too many people who can’t afford a lawyer also ineligible to qualify for legal aid.

This is still largely the case despite yearly 6 per cent increases to the threshold instituted by the previous Liberal government.

By 2024, it’s estimated that Legal Aid’s low-income threshold for a single person with no dependants will be $19,341, meaning a person who makes more than that generally won’t qualify for legal aid.