FOLA calls for Ontario to boost legal aid funding and court innovation

Ahead of the province’s 2023 budget, the Federation of Ontario Law Associations (FOLA) is calling on the Ontario government to boost legal-aid spending and continue court modernization.

FOLA is asking the provincial government to increase annual spending on Legal Aid Ontario to $480 million, up from $350 million, which would restore funding to its 2014 level. The federation also wants the threshold increased for legal aid eligibility, an increase in lawyer tariff rates, more modernization, and improved data collection.

After all the technological progress in the Ontario court system during COVID, FOLA wants the province to keep its foot on the gas. To “fully modernize the justice system,” the courts need “province-wide, standardized platforms and protocols for end-to-end online filing, service, scheduling, and document sharing platforms.” System integration will ease court staff workloads, billable time for users, and enhance access to court proceedings and the transparency of filings, said FOLA.

“Legal Aid Ontario is not sustainable in the trajectory that it appears to be at present,” says Terry Brandon, a criminal defence lawyer in Sarnia. “Although it has been sustained for many years, it has not been adequately sustained, and we have systemic financing issues that are creating justice hurdles.”

Brandon’s practice is a mix of legal-aid and private-retainer work, and she says that legal aid’s underfunding is not just impacting criminal law but is felt in family, immigration, and refugee law as well.

“I can tell you that we have seen a significant rise in self-represented people before the court system as the result of the budget cuts. And the result? It takes longer for matters to move forward in the courtroom. And that impacts everyone. Those who have retained counsel are delayed, and it creates inefficiencies within the courtroom.”

Brandon adds that these cuts have also been difficult for the judiciary, who, while not able to advise self-reps, still want to ensure that they understand what is happening in the proceedings.

“The reality that we are asking for something to match the 2014 budget level should demonstrate to everyone how poorly funded the system is at present because we have seen significant increases in the cost of the justice system to begin with,” she says.

Since 2014, the cost of utilities, gas, and law office staff have all gone up significantly,” says Brandon. “Yet we're expected to function at a financing level not even equivalent to where we should have been back in 2014. I think that's a huge commentary on the lack of financing of the system, period.”

She says that legal-aid underfunding has contributed to court system delays and has led to fewer lawyers being willing to take on legal-aid certificate work.

The Ontario government cut $133 million from legal aid in 2019, amounting to 30 percent of the LAO budget.

As an example of the bold court modernization efforts it wants to see, FOLA is asking Ontario to look at an initiative from Massachusetts called the judicial information technology bond bill, which included $164 million in funding for state courthouses.

“It was, I thought, just a really innovative and dynamic way to pay for real change that is going to happen in our courthouses,” says Katie Robinette, executive director of FOLA. “To give a lot of credit to the Attorney General and to the Ministry of the Attorney General, the judiciary has gone miles ahead because of COVID. They really latched on to the problem and brought it up to speed with today's information age.”

But Ontario needs to take a “systemic approach” that focuses on making the process as easy and least cumbersome for all users, she says.

“The thrust of our budget submission this year is that we want the province to keep on the track it's on and continue to move our justice system forward, using technology, using online platforms, and making more modern and efficient for court users and parties that appear before court,” says Douglas Judson, FOLA chair. “Essentially, we're just saying, ‘Don't stop now. We're still behind where we should be.’”

COVID’s silver lining was the court system’s implementation of virtual sittings using platforms like Zoom, the acceptance of virtual filings and online payments, and using Caselines in courts across the province, says Judson. But the system is still only halfway to where it needs to be, says Judson.

“I'm in Fort Frances. Probably about half of my files are based in rural, north-western Ontario. Since the onset of virtual sitting of the court, Caselines and some of these other technologies, I have access to more court days and judges than I've ever had before in some of these smaller judicial centres,” he says. “It's allowed me to move my clients’ matters forward more quickly. They are, in effect, not disadvantaged by what their postal code is when they want to try to get access to the justice system.”

“These technologies can serve as somewhat of an equalizer in that way. Now, the asterisk on that is that different courts, and even individual judges within those courts, are using the technologies differently. We do need to push everyone to adopt some universal standards around what the expectations are for technology use in different types of court sittings.”

FOLA submitted to the province’s Ministry of Finance, which plans to table the 2023/2024 budget at the end of March.