Bill 50 - Legal Aid Act

BILL 50

Legal Aid Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

DEFINITIONS AND GUIDING PRINCIPLES

Definitions

1 The following definitions apply in this Act.

“area” means a region of the Province designated in the regulations. (région)

“area committee” means an area legal aid committee appointed under section 26. (comité régional)

“Board” means the Board of Directors of the Commission. (conseil)

“Commission” means the New Brunswick Legal Aid Services Commission continued under section 3. (Commission)

“employee” means a person employed by the Commission under this Act for the purposes of the administration of the plan. (employé)

“Executive Director” means the Executive Director of Legal Aid appointed under section 12. (directeur général)

“Law Society” means the Law Society of New Brunswick. (Barreau)

“lawyer” means a member of the Law Society entitled to practise law in the courts of the Province. (avocat)

“Legal Aid Committee” means the Legal Aid Committee appointed under section 25. (Comité d’aide juridique)

“legal aid services” means professional services provided under this Act and the regulations. (services d’aide juridique)

“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“person”, in relation to an applicant for legal aid services, means a natural person. (personne)

“plan” means the plan known as Legal Aid New Brunswick that is established under this Act and the regulations. (programme)

“student” means a student-at-law under the Law Society Act, 1996. (étudiant)

Guiding principles

2 The management and provision of legal aid services in the Province shall be guided by the following principles:

(a) legal aid services should be provided in an effective manner so as to ensure that those in need of legal aid services obtain the legal aid services required to resolve their legal problems;

(b) legal aid services should be integrated with services delivered by other government and community agencies to address the underlying issues that result in legal problems;

(d) legal aid services should be provided in a manner that is fair and grounded in respect for the rule of law and the rights of those in need of the services;

(e) legal aid services provided should be appropriate to the circumstances so that legal problems are resolved through the most efficient route throughout the process;

(f) legal aid services should be delivered in a timely fashion to allow for the early resolution of legal issues; and

(g) the provision of legal aid services should be administered in a cost-effective and efficient manner, while respecting the other principles referred to in this section.

COMMISSION AND BOARD

Continuation of Commission

3( 1) The New Brunswick Legal Aid Services Commission is continued as a body corporate without share capital.

3( 2) For the purposes of this Act, the Commission has the capacity and the rights, powers and privileges of a natural person.

3( 3) Despite subsection (2), the Commission shall not borrow money unless

(a) the money is to be used for the provision of legal aid services or the administration of the plan, and

(b) the Minister of Finance first approves the borrowing.

3( 4) The Commission is not an agent of the Crown.

3( 5) The head office of the Commission is at The City of Fredericton.

Board of Directors

4( 1) On and after June 30, 2016, the Commission shall have a Board of Directors composed of the following members:

(a) the Executive Director, who shall serve as a member by virtue of his or her office and be non-voting;

(b) an employee of the Department of Justice designated by the Minister, who shall serve as a non-voting member; and

( i) five of whom shall be appointed by the Lieutenant-Governor in Council on the recommendation of the Minister, and

( ii) two of whom shall be appointed by the Lieutenant-Governor in Council on the recommendation of the Law Society.

4( 2) A member of the Board appointed under paragraph (1)(c) holds office for a term, not longer than three years, that the Lieutenant-General in Council determines.

4( 3) A member of the Board appointed under paragraph (1)(c) may be reappointed and paragraph (1)(c) and subsections (2), (4) and (8) apply with the necessary modifications in respect of the reappointment, but he or she may not serve as a member of the Board for more than nine consecutive years.

4( 4) Despite subsections (2) and (3) but subject to subsection (8), a member of the Board appointed under paragraph (1)(c) remains in office until the member resigns or is reappointed or replaced.

4( 5) A vacancy on the Board does not impair the capacity of the Board to act as long as a quorum is maintained.

4( 6) In the case of the temporary absence or inability to act of a member of the Board appointed under subparagraph (1)(c)(i), the Lieutenant-Governor in Council, on the recommendation of the Minister, may appoint a substitute for the member for the period of the temporary absence or inability to act.

4( 7) In the case of the temporary absence or inability to act of a member of the Board appointed under subparagraph (1)(c)(ii), the Lieutenant-Governor in Council, on the recommendation of the Law Society, may appoint a substitute for the member for the period of the temporary absence or inability to act.

4( 8) Any appointment to the Board may be revoked by the Lieutenant-Governor in Council for cause.

4( 9) For the purposes of subsection (3), time served as a substitute appointed under subsection (6) or (7) counts as time served as a member of the Board appointed under paragraph (1)(c).

Criteria

5( 1) In recommending persons under section 4, the Minister or the Law Society shall ensure that the Board as a whole

(a) has knowledge, skills and experience in the following areas:

( i) business, management and financial matters of public or private sector organizations;

( ii) law and the operation of courts and tribunals;

( iii) the special legal needs of and the provision of legal services to low-income individuals and disadvantaged communities; and

( iv) the social and economic circumstances associated with the special legal needs of low-income individuals and of disadvantaged communities, and

(b) reflects the cultural and geographic diversity of the Province and its English and French linguistic duality.

5( 2) This section applies on and after June 30, 2016.

Board powers and duties

6( 1) The Board shall

(a) oversee the financial management of the Commission,

(b) establish operational and strategic policies for the Commission, and

6( 2) In exercising the powers and duties of the Board, its members shall act exclusively in the best interests of the Commission.

Chair and Vice-Chair

7 The Lieutenant-Governor in Council shall designate a Chair and a Vice-Chair of the Board from among the members of the Board.

Meetings of the Board

8 The Board shall meet at least twice each calendar year.

Quorum

9 A majority of the members of the Board constitutes a quorum.

Remuneration and expenses

10( 1) Members of the Board are entitled to remuneration and to reimbursement of expenses in accordance with the regulations.

10( 2) The remuneration and expenses referred to in subsection (1) are payable out of the Legal Aid Fund.

10( 3) On and after June 30, 2016, this section does not apply to the Executive Director nor to a member of the Board referred to in paragraph 4(1)(b).

By-laws

11( 1) The Board may make by-laws governing the administration, management and conduct of its affairs.

11( 2) Within 90 days after the commencement of this subsection, the Board shall make by-laws establishing the policy of the Commission in respect of situations considered by the Board to constitute an actual or potential conflict of interest pertaining to the members of the Board, including, but not limited to,

(a) the circumstances that constitute an actual or potential conflict of interest,

(b) a requirement that before taking office a member of the Board file with the Commission and the Minister a written declaration declaring the absence of any actual or potential conflict of interest or disclosing any actual or potential conflict of interest,

(c) a requirement that those members of the Board in office on the date of the coming into force of the by-laws file with the Commission and the Minister, within 30 days after that date, a written declaration declaring the absence of any actual or potential conflict of interest or disclosing any actual or potential conflict of interest, and

(d) a requirement that if, after filing a declaration referred to in paragraph (b) or (c), an actual or potential conflict of interest arises, the member of the Board immediately files a revised declaration.

11( 3) Without delay after the by-laws referred to in subsection (2) are made or amended, the Board shall provide a copy of the by-laws or amended by-laws to the Minister.

11( 4) The Board shall make by-laws governing the remuneration and other conditions of employment of the employees of the Commission.

11( 5) The by-laws shall be general in nature and not specific to any particular employee.

11( 6) The Regulations Act does not apply to by-laws made by the Board.

EMPLOYEES, APPOINTMENTS AND CONTRACTS

Executive Director

12( 1) The Lieutenant-Governor in Council shall appoint as the Executive Director of Legal Aid the person recommended by the Board.

12( 2) Subject to subsection (2.1), the Board shall establish the terms and conditions of the Executive Director’s appointment.

12( 2.1) The Executive Director shall be paid the remuneration that the Lieutenant-Governor in Council determines, and the payment shall be made out of the Legal Aid Fund.

12( 2.2) In determining the remuneration of the Executive Director, the Lieutenant-Governor in Council shall consider any recommendation made by the Board.

12( 3) An Executive Director shall hold office for a term of seven years from the date of his or her appointment.

12( 4) Despite subsection (3) but subject to subsection (5), the Executive Director remains in office until he or she resigns or is reappointed or replaced.

12( 5) The appointment of an Executive Director may be revoked for cause by the Lieutenant-Governor in Council.

12( 6) An Executive Director is eligible for reappointment and subsections (1) to (5) apply with the necessary modifications in respect of a reappointment.

12( 7) The Executive Director is charged with directing the business and affairs of the Commission.

12( 8) The Executive Director shall perform the duties and may exercise the powers imposed on the Executive Director by this Act, the regulations or the Board.

12( 9) Paragraphs 13(3) to (5) apply with any necessary modifications to the Executive Director.

Employees

13( 1) The Executive Director may, on behalf of the Commission, employ any persons, including lawyers, that the Executive Director considers necessary for the provision of legal aid services.

13( 2) The remuneration and other conditions of employment of the employees of the Commission shall be established by the by-laws of the Board.

13( 3) The pension plan converted to a shared risk plan in accordance with An Act Respecting Public Service Pensions applies to the employees of the Commission.

13( 4) The Civil Service Act does not apply to the employees of the Commission.

13( 5) Subject to the approval of the Board, employees of the Commission are eligible to participate in any employee benefit program established by the Board of Management.

Appointments and contracts

14( 1) On the terms approved by the Board, the Executive Director may, on behalf of the Commission, appoint or contract with any person, including lawyers, that the Executive Director considers necessary for the provision of legal aid services.

14( 2) Any person appointed or contracted with under subsection (1) is not an employee of the Commission.

Performance of duties

15( 1) Subject to any other provision of this Act, any regulation and any policy established under this Act and the regulations, the Executive Director may direct all employees concerning the performance of their duties.

15( 2) Subject to any other provision of this Act, any regulation and any policy established under this Act and the regulations, the Executive Director may direct all persons appointed or contracted with under section 14 concerning the performance of their duties.

Commission not practising law

16( 1) Subject to subsection (2), the Commission is not considered to be practising law within the meaning of the Law Society Act, 1996.

16( 2) With respect to legal services provided under this Act by a lawyer employed by the Commission or appointed or contracted with under section 14, the lawyer remains subject to the Law Society Act, 1996, and the rules under that Act.

Agreement for services

17 The Commission may enter into agreements with any Minister of the Crown for the provision by employees of the Crown of any service required by the Commission to carry out its duties and exercise its powers.

PLANNING, FINANCIAL MATTERS AND REPORTING

Establishment of plan

18( 1) The Commission may establish a plan in accordance with this Act and the regulations to be known as Legal Aid New Brunswick.

18( 2) The Executive Director shall administer the plan in accordance with this Act, the regulations and any policies established under this Act and the regulations.

18( 3) Subject to the approval of the Board, the Executive Director shall establish policies in accordance with this Act and the regulations governing the administration of the plan.

18( 4) The Regulations Act does not apply to any policies established under this Act and the regulations.

Legal Aid Fund

19( 1) The Commission shall establish in a chartered bank or in a trust company under the Trust and Loan Companies Act (Canada) a fund to be known as the Legal Aid Fund.

19( 2) The money appropriated by the Legislature for legal aid services shall be paid out of the Consolidated Fund.

19( 3) All money appropriated by the Legislature for legal aid services shall be deposited in the Legal Aid Fund.

19( 4) Any money received by the Commission by gift or grant shall be deposited in the Legal Aid Fund.

19( 5) Any money borrowed by the Commission shall be deposited in the Legal Aid Fund.

19( 6) Any money required to be paid by an applicant for legal aid services or the holder of a legal aid certificate under this Act shall be deposited in the Legal Aid Fund.

19( 7) The following are payable out of the Legal Aid Fund:

(a) expenses attributable to the establishment and administration of the plan, including salaries, employee benefits, allowances, retainers, office expenses, travelling expenses, advertising expenses, insurance premiums and superannuation contributions;

(b) fees and disbursements to lawyers for the provision of legal aid services and the remuneration of lawyers appointed or contracted with under section 14; and

19( 8) The Executive Director, or in the Executive Director’s absence, a person designated by the Executive Director, is the signing officer of the Legal Aid Fund.

Fiscal year

20 The fiscal year of the Commission ends on March 31 in each year.

Reports

21( 1) Before October 1 in each year, the Commission shall submit a report to the Minister for the 12 months ending on March 31 of that year containing the following:

(a) a statement of the nature and extent of legal aid services during the 12-month period;

(b) a statement of the receipts and disbursements of the Legal Aid Fund during the 12-month period;

(d) any other information that the Minister requests.

21( 2) The Minister shall lay the report referred to in subsection (1) before the Legislature if it is in session or, if not, at the next session.

21( 3) Before December 1 in each year, the Commission shall submit to the Board of Management an interim report on the operation of the plan for the six-month period ending on September 30 of that year, together with a proposed budget containing a detailed estimate of the amount of money required to operate the plan in the next fiscal year of the Province.

21( 4) The Secretary of the Board of Management may make a report on the proposed budget, containing the recommendations he or she considers appropriate, to the Chair of the Board of Directors of the Commission within 30 days after receiving the proposed budget.

Financial statements

22 The financial statements of the Commission shall be prepared in accordance with generally accepted accounting principles.

Audit

23 The accounts and financial statements of the Commission shall be audited at least once a year by the Auditor General of New Brunswick.

LEGAL AID OFFICES, LEGAL AID COMMITTEE AND AREA LEGAL AID COMMITTEES

Legal aid offices

24( 1) Subject to subsection (2), the Commission may establish a regional legal aid office for each area.

24( 2) A regional legal aid office may be established to serve more than one area.

24( 3) The duties of the employees for an area include

(a) the issuing of legal aid certificates,

(b) the preparation of lists of lawyers serving on legal aid panels,

(d) the approval of accounts for fees and disbursements of duty counsel, and

(e) any other functions assigned by the Executive Director, this Act or the regulations.

Legal Aid Committee

25( 1) The Lieutenant-Governor in Council may appoint a standing committee in accordance with this Act and the regulations to be known as the Legal Aid Committee that shall

(a) advise and make recommendations to the Commission or the Minister on policy matters,

(b) advise the Executive Director on matters of law, and

25( 2) The Lieutenant-Governor in Council shall appoint the Chair of the Legal Aid Committee.

Area legal aid committees

26( 1) The Executive Director may in accordance with this Act and the regulations appoint an area legal aid committee for an area.

26( 2) An area committee shall consist of not less than three persons.

26( 3) Only an employee for an area shall act as secretary of the area committee for that area.

26( 4) An area committee shall perform the functions assigned by the Executive Director, this Act or the regulations.

LEGAL AID CERTIFICATES

Application for legal aid services

27( 1) An application for legal aid services may be made in a manner prescribed by regulation to an employee for the area in which the applicant resides at the time the application is made, in which the matter or proceeding for which legal aid services are required arises or in which the legal services required are to be performed.

27( 2) An employee for an area

(a) shall investigate the circumstances of an applicant in the manner he or she considers appropriate,

(b) shall require an applicant to provide any information prescribed by the regulations and to declare under oath the truth of the information provided,

(c) shall determine whether an applicant can pay no part, some part or the whole of the cost of the legal aid services applied for and the sum, if any, that an applicant is able to contribute toward their cost, and

(d) may, under section 28, issue a legal aid certificate on the terms that are, in his or her opinion, warranted by the circumstances.

27( 3) In making a determination under paragraph (2)(c), an employee for an area shall comply with the rules for determining financial eligibility that are prescribed in the regulations.

27( 4) If an employee for an area determines that the applicant can pay some part of the cost of the legal aid services applied for and the applicant does not pay that part of the cost at that time, the employee shall require the applicant to enter into a written agreement to pay that part of the cost under the conditions and at the time set by the employee.

27( 5) The amount that an applicant agrees to pay under subsection (4) is a debt owing to the Commission; however, if at any time that amount exceeds the cost to the Commission of providing legal aid services to the applicant, the debt shall, at that time, be deemed to be an amount equal to the cost to the Commission of providing legal aid services to the applicant.

27( 6) For the purposes of this section, the cost to the Commission of providing legal aid services to an applicant is the amount payable by the Commission to a lawyer in respect of legal aid services provided to the applicant.

27( 7) The Executive Director or an employee for an area may require, as a condition of the employee issuing a legal aid certificate under section 28, that the applicant secure a debt referred to in subsection (5) by depositing with the Executive Director the security that is authorized by the regulations and considered appropriate and reasonable by the Executive Director or the employee, as the case may be.

Issuance of legal aid certificates

28( 1) No legal aid certificate shall be issued or amended unless the issuance or amendment is authorized under this section or the regulations.

28( 2) Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may issue legal aid certificates authorizing legal aid services for any of the following proceedings and any matter preliminary to any such proceedings that are anticipated:

(a) proceedings in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act (Canada);

(b) proceedings in respect of an offence under an Act of the Legislature;

(c) proceedings before an administrative tribunal established by an Act of the Legislature or of the Parliament of Canada;

(d) proceedings in bankruptcy;

(e) proceedings under the Divorce Act (Canada);

(f) proceedings, other than those covered by paragraphs (a) to (e), in The Court of Queen’s Bench of New Brunswick, the Provincial Court, The Probate Court of New Brunswick, the Supreme Court of Canada, the Federal Court or the Federal Court of Appeal; and

(g) proceedings of an appellate nature in respect of matters and proceedings covered by paragraphs (a) to (f).

28( 3) With the prior approval of the Executive Director, an employee for an area may, in his or her discretion, issue a legal aid certificate authorizing legal services, other than those associated with judicial and administrative proceedings, that are customarily within the scope of the professional duties of a lawyer, including drawing documents, negotiating settlements and giving legal advice.

28( 4) Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may amend a legal aid certificate from time to time to alter the scope of the legal aid services authorized by that certificate.

28( 5) An employee for an area shall not issue a legal aid certificate under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction unless he or she has a current legal opinion that

(a) there is a likelihood of imprisonment or loss of means of earning a livelihood on conviction,

(b) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or

(c) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by a lawyer.

28( 6) Subsection (5) applies with the necessary modifications to the amendment of a legal aid certificate issued under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction.

28( 7) If the applicant has an election as to the manner in which he or she may be tried, a legal aid certificate issued in respect of proceedings referred to in paragraph (2)(a) shall authorize proceedings in Provincial Court only unless the applicant’s lawyer certifies to the Executive Director that, in his or her opinion, the interests of the accused require that he or she elect to be tried by a judge without a jury or by a court composed of a judge and jury, in which case the Executive Director may amend the certificate accordingly.

28( 8) With the prior approval of the Executive Director, an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) if

(a) there appears to be a likelihood of imprisonment or loss of means of earning a livelihood on conviction, and

(b) that employee has a current legal opinion that

( i) there is a possible defence to the charge,

( ii) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or

( iii) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by a lawyer.

28( 9) Despite subsection (8), an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) without the prior approval of the Executive Director, if the offence with which the applicant is charged carries a mandatory term of imprisonment.

28( 10) An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(c) or (d) unless he or she has a current legal opinion that the applicant has an interest that ought to be raised or protected in the matter or proceeding and that it is in the interests of justice that the applicant be represented by a lawyer.

28( 11) An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(e) or (f) unless he or she has a current legal opinion that it is reasonable under the circumstances of the case to institute or defend the proceedings, or to continue the action or defence to the action, as the case may be.

28( 12) In determining the reasonableness of the proposed course of action under subsection (11), an employee for an area shall consider the matter from the standpoint of a usual lawyer and client relationship, taking into account the possibility of success, the cost of the proceedings in relation to the anticipated loss or recovery and the likelihood of enforcing judgment.

28( 13) Except if in the opinion of an employee for an area the circumstances of an application require the immediate issue or amendment of a legal aid certificate, the employee shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(g) unless

(a) the applicant has included in his or her application

( i) the opinion of a lawyer as to the advisability of instituting or defending an appeal,

( ii) a copy of the order or judgment appealed from, and

( iii) any other information that the employee requires,

(b) the employee considers that it is reasonable that the appeal be instituted or defended,

(c) the employee has submitted the application to the area committee for that area, if one has been established, or to the Executive Director, if an area committee has not been established for that area, and

(d) the area committee or the Executive Director, as the case may be, has approved the issuing or amending of a legal aid certificate.

28( 14) The Executive Director may refer to the Legal Aid Committee for its recommendation any matter requiring his or her approval under paragraph (13)(d).

28( 15) Despite any other provision of this Act except subsection (9), the Executive Director may from time to time direct that an employee for an area obtain the Executive Director’s prior approval for the issuance or amendment of any type of legal aid certificate specified in the directions.

28( 16) Despite any other provision of this Act, the Executive Director, with the approval of the Board, may from time to time establish policies and issue directions defining circumstances under which an applicant may be determined to be ineligible as a recipient of legal aid services by reason of

(a) the applicant being charged with an offence the same as or similar to one for which he or she has been previously convicted, or

(b) the total number of legal aid services that the applicant is currently receiving or has received from the plan.

28( 17) If the Executive Director is of the opinion that the Legal Aid Fund is in danger of being depleted, he or she may, with the approval of the Board after the Board has consulted with the Minister, limit the provision of legal aid services in proceedings or matters covered by paragraphs (2)(c) to (g) and subsection (3).

Residency requirement

29( 1) A legal aid certificate shall not be issued under section 28 to a person who is not ordinarily resident in the Province.

29( 2) Despite subsection (1), if, in the opinion of the Executive Director, the interests of justice demand that legal aid services be extended to a person not ordinarily resident in the Province, the Executive Director may authorize that a legal aid certificate be issued to that person in accordance with section 28.

29( 3) This section does not apply in respect of the following:

(a) any proceedings or any matter preliminary to anticipated proceedings referred to in paragraph 28(2)(a); and

(b) any proceedings, or any matter preliminary to anticipated proceedings, of an appellate nature in respect of proceedings referred to in paragraph 28(2)(a).

Reciprocal agreement

30 The Minister may, with the approval of the Lieutenant-Governor in Council, enter into a reciprocal agreement with another province or a territory of Canada, or with a state that is designated by order of the Lieutenant-Governor in Council, in which provision is made for extending the benefits of this Act to persons ordinarily resident in that province, territory or state, in which case a legal aid certificate may be issued to one of those persons.

Cancellation of legal aid certificates

31( 1) The Executive Director or an employee for an area may cancel a legal aid certificate issued by him or her or by a former employee for that area if he or she is satisfied that

(a) the legal aid certificate ought not to have been issued,

(b) the applicant has made a false statement or has concealed information in applying for legal aid services, or

(c) because of changed circumstances since the date of issue of the certificate, the benefits of this Act ought not to be extended to the applicant.

31( 2) If a legal aid certificate is cancelled, the applicant, unless exempted from this subsection by the Executive Director on the ground that its application would prove unjust as against the applicant, shall reimburse the Commission for the cost to the Commission of providing legal aid services to the applicant up to the time at which the certificate is cancelled, and the amount payable is a debt owing to the Commission.

31( 3) For the purposes of this section, the cost to the Commission of providing legal aid services to an applicant is the amount payable by the Commission to a lawyer in respect of legal aid services provided to the applicant.

31( 4) If a legal aid certificate is cancelled under subsection (1) or expires under subsection 33(5), or if all duties imposed by this Act and the regulations with respect to that legal aid certificate have been discharged,

(a) any portion of the contribution already paid by the applicant that exceeds the amount of a debt owing to the Commission shall be refunded to the applicant, and

(b) the portion of any security taken that is no longer necessary for securing a debt owing to the Commission shall be returned to the applicant unless, in the opinion of the Executive Director, it would be impractical or unreasonable to release the security in whole or in part.

Appeals

32( 1) Subject to subsection (2), an applicant may appeal to the area committee for an area if one has been established, or, if one has not been established, to the Executive Director if an employee for an area

(a) refuses to issue or amend a legal aid certificate,

(b) conditions the issuing of a certificate on the contribution of the applicant, or

32( 2) If the refusal, issuing or cancellation referred to in subsection (1) relates to an application for legal aid services in respect of a proceeding of an appellate nature, the applicant may appeal to the Executive Director.

32( 3) An employee for an area shall inform each applicant entitled to appeal under subsection (1) or (2) of the name and address of the person or body to whom the appeal may be made.

32( 4) An area committee or the Executive Director shall determine an appeal under this section in accordance with the criteria governing the disposition of the application.

32( 5) An appeal under this section is an informal review only and no right to a hearing is established by this section, but an area committee or the Executive Director, as the case may be, may obtain any information and opinions and hear any representations considered necessary.

32( 6) The Executive Director may, in his or her discretion, refer to the Legal Aid Committee for its recommendation any matter appealed to him or her under this section.

32( 7) If the Executive Director or an area committee determines under subsection (4) that a legal aid certificate ought to be issued or amended, an employee for the area shall issue or amend the certificate under section 28 accordingly.

PANELS

Panels

33( 1) A lawyer who maintains an office or has an established legal practice in an area may apply to an employee for that area to have his or her name placed on one or more of the following:

(a) a criminal duty counsel panel;

(b) a criminal legal aid panel;

(d) a civil legal aid panel; and

(e) a legal advice and services panel.

33( 2) An employee for an area shall enter the name of each lawyer who has applied under subsection (1) on each panel stipulated in the application.

33( 3) If an employee for an area issues a legal aid certificate, he or she shall advise the holder of the legal aid certificate of the names of all lawyers on the appropriate panel for that area.

33( 4) Nothing in subsection (3) prevents the holder of a legal aid certificate from retaining a lawyer who is not on a panel for that area if the lawyer retained is on the appropriate panel for another area and the Executive Director gives his or her approval.

33( 5) If a holder of a legal aid certificate does not retain a lawyer within 60 days after the date of issue of the legal aid certificate, the legal aid certificate expires.

33( 6) No lawyer shall act for a person under a legal aid certificate unless his or her name is on an appropriate panel in relation to the service to be performed under that certificate.

Choice of lawyer by employee

34 If a lawyer has been employed by the Commission or has been appointed or contracted with under section 14 for the provision of legal aid services, an employee for an area may require the holder of a legal aid certificate to retain that lawyer, in which case subsections 33(3), (4), and (6) do not apply.

FEES, COSTS AND DEBTS

Fees

35( 1) If a lawyer provides professional services to a holder of a legal aid certificate other than those services that are authorized by the legal aid certificate, he or she is not entitled to be paid for those services out of the Legal Aid Fund.

35( 2) No lawyer or student shall take or receive any payment or other benefit for providing professional services under this Act except as is provided in this Act and the regulations.

35( 3) A lawyer may refuse to accept as a client a holder of a legal aid certificate, but no lawyer who is approached by a holder of a legal aid certificate seeking legal aid services shall accept that person as a client on a remunerative basis other than is provided in this Act and the regulations.

Fees and court costs

36( 1) If a holder of a legal aid certificate recovers costs in respect of the proceeding for which the certificate was issued pursuant to a judgment or order of a court, he or she shall pay those costs to the Commission.

36( 2) If proceedings are taken or defended by a holder of a legal aid certificate, and he or she is ordered to pay costs by a judgment or order of a court, the Executive Director may, in his or her discretion, authorize a payment in respect of those costs out of the Legal Aid Fund.

36( 3) If a holder of a legal aid certificate recovers under a judgment, order, settlement or otherwise any sum in respect of the proceeding for which the legal aid certificate was issued, he or she shall pay to the Commission an amount equal to the disbursements made in the proceeding together with the value of the professional services provided, less the amount he or she is obligated to pay under subsection (1).

36( 4) If the holder of a legal aid certificate recovers under a judgment, order, settlement or otherwise any property in respect of the proceeding for which the legal aid certificate was issued, he or she shall pay to the Commission an amount equal to the disbursements made in the proceeding together with the value of the professional services provided, less the amount he or she is obligated to pay under subsection (1).

36( 5) The Executive Director may reduce or waive an amount payable under subsection (3) or (4) if, under the circumstances of the case, he or she considers it unjust to require the amount to be paid in full, in which case the amount deemed to be payable under subsection (3) or (4) shall be an amount set by the Executive Director.

36( 6) If a lawyer is in possession of an amount in respect of costs referred to in subsection (1), whether in trust or otherwise, he or she shall pay the amount to the Commission and not to the lawyer’s client.

36( 7) If a lawyer is in possession of any sum referred to in subsection (3), whether in trust or otherwise, he or she shall pay the amount to the Commission and not to the lawyer’s client.

36( 8) If a lawyer is in possession of any property referred to in subsection (4), whether in trust or otherwise, he or she shall withhold the property from the lawyer’s client until the client complies with subsection (4) or gives the security for payment required by the Executive Director.

36( 9) An amount payable under subsection (1), (3) or (4) is a debt owing to the Commission.

Memorial of debts

37( 1) The Executive Director may issue a memorial of a debt arising under subsection 27(5), 31(2) or 36(9) containing the amount of the debt and verified by affidavit.

37( 2) The memorial of debt, accompanied by the affidavit, may be registered in accordance with the Registry Act or the Land Titles Act.

37( 3) A copy of a registered memorial certified by a registrar of deeds or a registrar of land titles, as the case may be, shall be admissible as evidence of the registration in all proceedings.

37( 4) A memorial of a debt referred to in subsection (1) registered in the registry office of the county in which the lands are situated, or the land titles office of the district in which the lands are situated, as the case may be, binds the lands of the person who owes an amount to the Commission in accordance with subsection 27(5), 31(2) or 36(9).

37( 5) A memorial registered as described in subsection (4) binds the lands of the person who owes an amount to the Commission in accordance with subsection 27(5), 31(2) or 36(9) for five years from the date of registration and after that period, if the debt remains unsatisfied, the memorial may be renewed for a further period of five years with like effect and so on as required by registering it again in accordance with this section.

37( 6) Satisfaction of any debt, a memorial of which is registered, may be acknowledged in writing by the Executive Director or employee for an area who received payment in accordance with the regulations, and the acknowledgment, when registered under the Registry Act or the Land Titles Act, as the case may be, operates as a discharge of the debt.

Accounts

38 Subject to the approval of the Minister, the Executive Director may

(a) delete from the accounts of the Legal Aid Fund any debts arising under subsection 27(5), 31(2) or 36(9), and

(b) authorize the destruction of cheques that are drawn on the account for the Fund and that are paid and cancelled.

ESTABLISHMENT AND ADMINISTRATION OF PROGRAM

Establishment and administration of program by Commission

39( 1) Despite any other provision of this Act or the regulations, the Commission may establish and administer a program to provide legal aid services for persons for any of the following proceedings and any matters preliminary to any such proceedings that are anticipated:

(a) proceedings under the Divorce Act (Canada);

(b) other than those covered by paragraphs 28(2)(a) to (e), proceedings in The Court of Queen’s Bench of New Brunswick, the Supreme Court of Canada, the Federal Court or the Federal Court of Appeal; and

39( 2) Nothing in this section shall be construed so as to oblige the Commission to provide legal aid services in respect of which no money has been appropriated by the Legislature.

INVESTIGATONS

Investigations

40( 1) On the request of the Commission or the Minister, the Legal Aid Committee shall conduct an investigation

(a) to determine if this Act and the regulations have been complied with in respect of an application made under this Act, or

(b) into any other matter relating to the administration of this Act.

40( 2) The Executive Director, a duty counsel, a member of an area committee, an employee and a person appointed or contracted with under section 14 shall, on a request by the Legal Aid Committee,

(a) give to the Legal Aid Committee all possible assistance in carrying out the investigation, and

(b) provide the Legal Aid Committee with any application, report, statement, record, document or other information requested by the Legal Aid Committee.

40( 3) At the conclusion of its investigation under this section, the Legal Aid Committee

(a) shall report its findings to the Commission or the Minister, as the case may be, and

(b) may make recommendations to the Commission or the Minister, as the case may be, in respect of its findings if, in its opinion, circumstances so warrant.

Disclosure

41( 1) Despite section 42, if the Legal Aid Committee conducts an investigation under section 40, the Legal Aid Committee may require the Executive Director, a member of the Board, a member of the Legal Aid Committee, a duty counsel, a member of an area committee, an employee and a person appointed or contracted with under section 14 to disclose to it any communication referred to in section 42.

41( 2) No member of the Legal Aid Committee shall

(a) disclose, publish or communicate to any person any application, report, statement, record, document or other information provided under subsection 40(2) or any communication disclosed under subsection (1), or

(b) use the application, report, statement, record, document or other information or communication except for the purposes of subsections 40(1) and (3).

GENERAL AND MISCELLANEOUS

Privileged communications

42 Communications between an applicant for legal aid services, on the one hand, and the Executive Director, a member of the Board, a member of the Legal Aid Committee, a duty counsel, a member of an area committee, an employee or a person appointed or contracted with under section 14, on the other hand, which would be privileged if made between a client and his or her lawyer, are privileged in the same manner and to the same extent as lawyer and client communications.

Liability of the Commission

43 The Commission is not liable for any act or omission of any lawyer who is appointed or contracted with under section 14 and who provides professional services under this Act.

Immunity

44 No action or other proceeding for damages or otherwise lies or shall be instituted and no proceeding shall be taken in any court, whether by way of injunction, declaratory judgment, order on judicial review or otherwise, against any of the following persons in relation to anything done in good faith, or in relation to anything omitted in good faith, under this Act by the person:

(a) the Board;

(b) a member or former member of the Board;

(d) an employee or former employee of the Commission;

(e) a person appointed or contracted with under section 14;

(f) a member or former member of the Legal Aid Committee; or

(g) a member or former member of an area committee.

Indemnity

45( 1) In this section, “Court of Queen’s Bench” means The Court of Queen’s Bench of New Brunswick.

45( 2) Except in relation to an action by or on behalf of the Commission, in which case the approval of the Court of Queen’s Bench must first be obtained, the Commission may indemnify any member or former member of the Board, any employee or former employee of the Commission, the Executive Director or a former Executive Director or any member or former member of the Legal Aid Committee or an area committee, and his or her heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in relation to any civil, criminal or administrative action or proceeding to which he or she is made a party by reason of being or having been a member of the Board, an employee of the Commission, the Executive Director or a member of the Legal Aid Committee or an area committee, if he or she

(a) acted honestly and in good faith with a view to the best interests of the Commission, and

(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his or her conduct was lawful.

45( 3) Despite anything else in this section, a person referred to in subsection (2) is entitled to indemnity from the Commission in respect of all costs, charges and expenses reasonably incurred in connection with the defence of any civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been a member of the Board, an employee of the Commission, the Executive Director or a member of the Legal Aid Committee or an area committee if the person seeking indemnity

(a) was substantially successful on the merits of the person’s defence of the action or proceeding,

(b) fulfils the conditions set out in paragraphs (2)(a) and (b), and

45( 4) The Commission may purchase and maintain insurance for the benefit of any person referred to in subsection (2) against any liability incurred by that person as a member of the Board, an employee of the Commission, the Executive Director or a member of the Legal Aid Committee or an area committee, except if the liability relates to the failure of that person to act honestly and in good faith with a view to the best interests of the Commission.

45( 5) The Commission or a person referred to in subsection (2) may apply to the Court of Queen’s Bench for an order approving an indemnity under this section and the Court of Queen’s Bench may make the order and make any further order it thinks fit.

45( 6) On an application under subsection (5), the Court of Queen’s Bench may order notice to be given to any interested person and that person is entitled to appear and be heard in person or through a lawyer.

45( 7) Any amount payable under this section is payable out of the Legal Aid Fund.

Decisions final

46 Every decision of the Board or the Executive Director is final and may not be questioned or reviewed in any court.

Forms

47 The Executive Director may prepare, or cause to be prepared, and provide forms for the purposes of facilitating the application and administration of this Act and the regulations.

Regulations

48 The Lieutenant-Governor in Council may make regulations

(a) designating regions of the Province as areas for purposes of this Act;

(b) prescribing oaths of office and secrecy as conditions of appointment, employment or entering into a contract under this Act;

(c) for the purposes of section 10, governing the remuneration and reimbursement of expenses for members of the Board, including providing for limits on remuneration and reimbursement of expenses;

(d) governing the functions of the Executive Director, duty counsel and other persons appointed, employed or contracted with for purposes of this Act;

(e) governing the constitution, functions and procedures of area committees and the Legal Aid Committee;

(f) governing panels referred to in section 33, including the removal of lawyers from panels;

(g) governing the establishment of student legal aid societies and the functions of students participating in the plan;

(h) prescribing procedures for applying for legal aid services;

(i) prescribing information to be provided by applicants for legal aid services;

(j) governing the non-disclosure of information provided by or about an applicant for legal aid services;

(k) prescribing rules for determining financial eligibility and the grounds on which applicants may be determined to be ineligible for legal aid services;

(l) prescribing the content of legal aid certificates;

(m) governing procedures for issuing, amending and cancelling legal aid certificates;

(n) governing the issuing of legal aid certificates retroactively;

(o) governing appeals referred to in section 32;

(p) governing memorials of debt, liens and other forms of security that may be required to secure obligations arising under this Act, including the creation, registration, amount, operation, effect and discharge of them;

(q) governing lawyers’ reports on legal aid services;

(r) prescribing the manner in which lawyers’ accounts and duty counsel accounts shall be presented and approved for payment;

(s) authorizing the Executive Director to refuse to pay all or any part of an account presented for payment;

(t) respecting the grounds on which and the circumstances in which the Executive Director may refuse to pay all or any part of an account presented for payment;

(u) governing the repayment of disbursements to lawyers;

(v) governing the provision of legal aid services by lawyers appointed or contracted with under section 14;

(w) governing the provision of legal aid services under section 39;

(x) governing the payment of money into and out of the Legal Aid Fund;

(y) governing the bonding of persons appointed or employed under this Act;

(z) respecting any other matter that the Lieutenant-Governor in Council considers necessary or advisable to carry out effectively the intent of this Act.

TRANSITIONAL PROVISIONS

Board

49( 1) Until June 30, 2016, the Commission’s Board of Directors shall consist of five to seven members appointed by the Lieutenant-Governor in Council.

49( 2) Subject to subsection 4(8), the Chair and Vice-Chair of the Board who held office immediately before the commencement of this section and any other member of the Board who held office immediately before the commencement of this section continues in office until he or she resigns or is reappointed or replaced.

49( 3) Any appointment to the Board made under subsection (1) shall be for a term ending before June 30, 2016.

49( 4) For the purposes of subsection 4(3), time served on the Board by the Chair or Vice-Chair of the Board or other Board member referred to in subsection (2) counts as time served as a member of the Board appointed under paragraph 4(1)(c).

49( 5) For the purposes of subsection 4(3), time served as a member of the Board appointed under subsection (1) counts as time served as a member of the Board appointed under paragraph 4(1)(c).

Executive Director

50 The person holding the office of Executive Director of Legal Aid immediately before the commencement of this section shall be deemed to have been appointed under section 12 and, subject to subsection 12(5), continues in office until he or she resigns or is reappointed or replaced.

Lawyers

51( 1) A lawyer who was employed by the Commission for the provision of legal aid services before the commencement of this subsection and is still so employed on the commencement of this subsection shall be deemed to have been employed under section 13.

51( 2) A lawyer who was appointed by or entered into a contract with the Commission for the provision of legal aid services before the commencement of this subsection and whose appointment or contract is in force on the commencement of this subsection shall be deemed to have been appointed or contracted with under section 14.

Plan

52 The plan known as Legal Aid New Brunswick in place under the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, immediately before the commencement of this section shall be deemed to have been established under section 18.

Legal Aid Fund

53 The Legal Aid Fund in place under the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, immediately before the commencement of this section shall be deemed to have been established under section 19.

Regional legal aid office

54 A regional legal aid office in place under the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, immediately before the commencement of this section shall be deemed to have been established under section 24.

Legal Aid Committee

55 The Legal Aid Committee in place under the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, immediately before the commencement of this section shall be deemed to have been appointed under section 25.

Area legal aid committee

56 An area legal aid committee in place under the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, immediately before the commencement of this section shall be deemed to have been appointed under section 26.

Application for legal aid services

57 An application for legal aid services made, but only partially dealt with before the commencement of this section may be dealt with in accordance with this Act and the regulations.

Legal aid certificate

58 A person who, immediately before the commencement of this section, held a valid legal aid certificate issued under the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, shall be deemed to hold a valid legal aid certificate issued under this Act, which may be cancelled, amended or otherwise dealt with in accordance with this Act and the regulations.

Program

59 The program in place under Part II of the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, immediately before the commencement of this section shall be deemed to have been established under section 39.

Policies, by-laws and agreements

60 Any policies, by-laws or agreements in place under the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, or the regulations under that Act immediately before the commencement of this section shall be deemed to have been made under the appropriate provisions of this Act or the regulations.

Designation

61 Any designation made by order in council under subsection 10(4) of the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, and in effect immediately before the commencement of this section shall be deemed to have been made under section 30.

CONSEQUENTIAL AMENDMENTS

Regulation under the Family Income Security Act

62 Paragraph 19(2)(e) of New Brunswick Regulation 95-61 under the Family Income Security Act is amended by striking out “legal aid” and “paragraphs 12(1)(c) to (g)” and substituting “legal aid services” and “paragraphs 28(2)(c) to (g)” respectively.

Regulation under the Provincial Court Act

63 Paragraph 3(e) of New Brunswick Regulation 2009-76 under the Provincial Court Act is amended by striking out “legal aid is” and substituting “legal aid services are”.

Public Trustee Act

64 Section 1 of the Public Trustee Act, chapter P-26.5 of the Acts of New Brunswick, 2005, is amended

(a) in the definition “Board” by striking out “appointed under section 29 of the Legal Aid Act”;

(b) in the definition “Commission” by striking out “established under section 26 of the Legal Aid Act” and substituting “continued under the Legal Aid Act”;

(c) in the definition “Executive Director” by striking out “appointed under section 39 of the Legal Aid Act” and substituting “appointed under the Legal Aid Act”.

Regulation under the Recording of Evidence Act

65 Paragraph 4(3)(b) of New Brunswick Regulation 2009-143 under the Recording of Evidence Act is amended by striking out “legal aid is” and substituting “legal aid services are”.

REPEAL AND COMMENCEMENT

Repeal

66( 1) The Legal Act Act, chapter L-2 of the Revised Statutes, 1973, is repealed.

66( 2) New Brunswick Regulation 84-112 under the Legal Aid Act is repealed.

Commencement

67 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.