B.C. pact recognizes legal aid as essential service, lawyers’ association says

Law360 Canada (October 17, 2019, 10:49 AM EDT) -- The B.C. government has announced an agreement to increase legal aid tariff rates and to have more conversations about changes to eligibility and coverage, a deal which the association representing legal aid lawyers in the province is calling unprecedented in Canada.

The agreement, which the government made in conjunction with the provincial Legal Services Society (LSS), which administers legal aid, and the Association of Legal Aid Lawyers (ALL), which represents over 600 lawyers who do legal aid work in the province, will raise the tariff rate by nearly 40 per cent by the time it expires in March 2022, and also establishes a negotiating structure on increases to the tariff and other tariff-related items.

Legal aid lawyers have delivered service to British Columbians at below cost in order to help the most vulnerable members of the province for more than a decade, said provincial Attorney General David Eby.

“The long-running underfunding of legal aid was profoundly unfair to British Columbians, especially in rural communities where there have been fewer and fewer lawyers — in some cases no lawyers at all — willing to take on dramatically underpaid legal aid cases,” he said. “Those bad old days are behind us. Our new partnership with the Association of Legal Aid Lawyers will ensure we provide high-quality legal services to low-income British Columbians going forward.”

ALL representative Richard Fowler said the hourly tariff rate, currently $83.90, will rise to $104.88 effective Nov. 4, then to $111.17 on April 1, 2020, and $113.39 on April 1, 2021. The deal follows an interim arrangement made at the end of March which averted a strike by legal aid lawyers in the province.

Fowler, a criminal lawyer with Vancouver’s Fowler & Blok, said it was “unprecedented in Canada to have a government commit to this kind of ongoing relationship with legal aid lawyers.” He noted the agreement also contains language about what essential services legal aid lawyers will provide in case of a work stoppage.

“The government has recognized us as the bargaining agent for legal aid lawyers and everybody is focused on ensuring there are good lawyers available to do the work for the most marginalized people in our society,” he said. “I think it represents a recognition by the government that the Legal Services Society and legal aid lawyers do essential work.”

Ken Armstrong, president of the Canadian Bar Association, B.C. Branch (CBABC), said the agreement means more legal aid lawyers will be able to take on more cases to represent low-income British Columbians who qualify for assistance.

“The new funding shows the B.C. government is making progress toward its obligation to provide British Columbians with an accessible and sustainable legal aid system, and the tariff is a vital part of that system,” he said. “We have advocated for years to increase the tariff and bring it in line with the actual overhead costs faced by lawyers who represent legal aid clients in this province.”

The agreement also establishes a policy consultation process to discuss legal aid policy and access to justice issues, which will involve sitting down with ALL four times a year. Fowler said the agreement did not explicitly deal with issues such as eligibility and coverage because the cost implications are complicated “and not easy calculations to make in a two-month negotiating period.”

“The government recognizes the need for more coverage in family law, for example, and the need for more people to be covered,” he said. “The decisions about how to do that involves more than just legal aid lawyers, but those are exactly the kind of policy questions that the government is committed to discussing with us.”

Fowler said the agreement means developing a career in criminal law becomes more attractive to young lawyers, and practitioners who haven’t been undertaking legal aid work in small communities will start doing it again.

“I think the deal is also a model for lawyers in other provinces on the importance of getting together, forming an association and getting a seat at the table,” he said.