Doug Ford cut support for affordable justice. Legal Aid Ontario explains what happens next

On April 11 — the day the Ford government delivered its first budget, which included just half a page detailing broad cuts to legal aid services — David Field received a phone call from the Ontario’s deputy attorney general.

“Right away we were going through numbers with them,” Field recalled. “And it took us a couple of days to really understand the nuances.”

The Doug Ford government’s appointee told him that Legal Aid Ontario would be facing a 30 per cent cut in its operating budget — the biggest cut in its over two-decade history. In total, the cuts added up to $133 million and took effect immediately without any notice, despite the fact that Legal Aid's 2019 budget had already been finalized.

But none of this was known until that phone call.

Field is the current CEO of Legal Aid Ontario, tasked with finding a way to deliver these cuts in a way that doesn’t disrupt the agency’s mandate of providing cheap legal assistance to the province’s most marginalized communities.

In a conversation with National Observer about how Legal Aid navigated the challenge of finding approximately $75 million in savings this year and the approval of a $14.5-million clinic savings plan, all while dealing with the blowback to Legal Aid’s reduced ability to fund private lawyers, Field said the entire process required quick, “principled” thinking and many “hard decisions.”

“When you think about the magnitude of the reduction, there’s no way that we could avoid impacting clients,” Field said in the July 18 interview. “We just tried to keep that to a minimum. But I think that was impossible to do. I mean, look, we took as much as we could from administration before we went anywhere near service delivery.”

The same day Field received the fateful phone call. Ontario’s attorney general under the Mike Harris Progressive Conservative government, Charles Harnick, became chair of the agency’s board. It is, Harnick said, an “apolitical” role.

In 1998, Harnick created the independent legal aid agency as a result of “a period of financial uncertainty” that saw demand for cheap legal assistance surpass the resources to provide it. At the time, one of those recruited to figure out the legislated accountability functions and roles of the new justice agency was a junior staffer in the Ontario government: David Field.

Over 20 years later, it almost seems as if history is repeating itself.

‘Hard decisions’

Harnick served at the helm of Ontario’s justice ministry at a time when the delivery of legal aid in the province became precarious. There was a significant deficit at the time, and funding wasn’t adequate to meet the demand. By the late 1990s, the program was failing to pay its service providers.

“There was real angst at the time about the Law Society continuing,” the former attorney general told the National Observer on July 18.

Harnick was also presiding over a series of cuts to legal services enacted by the Mike Harris-led government. He ordered a review of the delivery of legal aid in Ontario, which led to a recommendation to create an independent corporation for free legal advice in Ontario, and thus, Legal Aid Ontario was born.

“Legal aid was a revolutionary idea,” Harnick said. “We just transitioned what was a good program into a model that was more capable of running a much larger program than the Law Society had ever contemplated”

In the 1990s, there was a period of upheaval, Harnick and Field recall. Along with the fiscal issue, law practitioners were anxious about being paid, and law clinics felt the uncertainty of remaining functional and effective.

Today, it’s not much different.

After the April 11 phone call, Field collected the senior leadership team at Legal Aid Ontario’s office in downtown Toronto and began asking difficult questions.

What was the gap between what they had planned to spend this year and what was going to be available to them?

What options did they have in terms of making sure they could survive and thrive within their new envelope?

Field said the agency was forced to look at some of these items in a timeframe that "wasn't ideal,” and didn’t allow them to consult as widely as Legal Aid would have wanted to.

“We wanted to make sure we were going to do this in a principled way,” Field said.

The fact is that Legal Aid is accountable for the money it spends.

Legal Aid provides “certificates” to pay for lawyers to represent low-income individuals in court, particularly in criminal and family law. In recent years, the agency has implemented six per cent increases, annually, to the income threshold to qualify for a legal aid certificate. A single person with no dependants must generally earn below $17,731 in order to qualify. It also provides funding to law clinics that provide assistance to low-income communities across the province.

Almost every aspect of this service has taken a hit. Legal Aid has cut almost $1 million in funding across 13 neighbourhood clinics in Toronto alone and pulled $1 million from another in Parkdale. Six “specialty clinics” with provincial mandates to deal with tenants’ rights, income security, the environment and workers’ rights will collectively lose $2 million. Over $16 million has been found in savings by eliminating vacant positions, attrition, voluntary exits, as well as by implementing hiring and salary freezes for management.

“We really looked at all avenues,” Field told National Observer. “We wanted to make sure that we were being fair and not targeting any particular area.”

​​​​But Field is also aware of all the criticisms and worst-case scenarios playing out in Ontario’s justice sector about cuts to Legal Aid. Vulnerable clients, such as refugees, may be deported for not having accessible legal assistance. Women facing domestic violence situations may be turned away, and systemic issues relating to health, environmental degradations and housing may not be challenged in court.

“These are hard (scenarios) for the staff. I have a lot of sympathy and I feel that too,” Field said. “You’re grappling with the fact that anytime that we're making a decision that adversely affects our ability to deliver services, clients that are marginalized will be affected.

“So it's not a great situation to be in.”

A volatile environment

Volatile revenue has, unfortunately, been a staple of Legal Aid Ontario’s two-decade history, as has how the revenue is allocated and managed.

Field recalls, for instance, that the 2008 recession forced the agency to scramble to avoid a significant deficit.

For instances like that, Legal Aid created a contingency fund at its inception, but the last time the agency had a burgeoning reserve fund was in the 2014 fiscal year, when it was $80,000 strong.

A Deloitte-led review in 2017 said that the agency needed a better forecasting model to offset these changes. But, Field says this is “a tough balancing act” when an organization has many competing pressures and is trying to accommodate services across sectors that each have different needs.

Today, Legal Aid has used up its small contingency fund to manage the cuts delivered by the Ford government. Field said it’s posed a big question: How does the agency move from the historical funding process to something more reflective of the needs of the communities Legal Aid services?

“That’s something we have to grapple with over the course of the next couple of years,” he said, positing that if the agency sees a surplus again, does it set the money aside to avoid future crises or does it provide funding for immediate services?

Field’s immediate goal, however, is to ensure that the reductions Legal Aid has announced are successful in terms of cost savings.

“We need to make sure that what we’ve done actually works,” he said.

The government delivered them alongside a modernization plan for the legal sector, which Field says is a chance to change the way Legal Aid delivers services. The agency is also reviewing the 20-year-old legislation Field once helped write to see how it can be modified to better reflect the current state of legal aid.

He explained the legislation “reflects the interests of service providers rather than clients, and creates quasi-judicial processes that protect service providers at the expense of clients, administrative efficiency and cost-effectiveness.”

He provided examples:

• Clinics are protected by quasi-judicial processes that give clinics extensive reconsideration rights to challenge funding decisions, making it difficult for Legal Aid to re-allocate money to better meet client needs or end funding relationships with clinics that are performing poorly

• The legislation provides procedural rights for lawyers, which establish a lengthy and complicated process for removing a lawyer from a panel; Legal Aid staff have to show cause, and there is a right to a hearing. This is quasi-judicial, Field said, and reflects the interests of lawyers ahead of clients, and is not administratively efficient or a responsible use of taxpayer dollars.

• Lawyers and clinics are "the foundation" of criminal, family and clinical law services, but Field believes “no particular service provider should be named in the legislation itself as being the foundation. Client needs and responsible use of public funds should be the guiding principles.”

• Legal Aid cannot refer clients to a particular lawyer; “while this is intended to protect against favouritism to lawyers/nepotism, it does constrain us in some ways,” Field said. “For example, when a client has difficulty finding a lawyer, or when LAP wants to assign counsel (eg. senior counsel when a client repeatedly fires a lawyer because of mental health issues).”

“We as an organization want to stop worrying about looking at reductions, and we want to start looking into the future,” Harnick said, speaking to the review of the legislation. “This really is very much the epicenter of the justice system, I think.”

‘The sky is not falling’

In the months since the cuts have been announced, Premier Ford has revamped his entire cabinet, instating Doug Downey, a first time MPP, as Ontario’s new attorney general.

Harnick said he was the first person to be contacted by Downey for a meeting, three days after he took office. “He was very attuned to what we were doing, very appreciative of what we've been able to accomplish,” Harnick said, adding the lines of communication between the agency and the Ford government “are open and excellent”.

In a statement, Jesse Robichaud, Downey’s spokesperson, confirmed the Attorney General met with the chair of Legal Aid Ontario, and they look forward to working together to establish a sustainable legal aid system that is centred around clients.

But Field insisted there’s a broader scope to the agency's work that involves determining where Legal Aid will be in 10 to 15 years.

“How do we make sure we’re relevant to the future? That we’re client-focused instead of service-provider focused? That we’re talking to clients not lawyers?” he said. “Sometimes issues related to expenditure reductions force you to think about things in different ways."

As Legal Aid Ontario tries to thrive within its reduced budget, it seems the agency is also having to engage in difficult conversations about finding stability. Both Field and Harnick are encouraged by the ongoing discussions.

“Remember the story of Henny Penny,” Harnick said, referencing the children's story more commonly known as Chicken Little, where the protagonist believes the sky is falling after an acorn lands on its head.

“The sky is not falling,” Harnick assured.