Bill 44 - An Act to Amend the Legal Aid Act

BILL 44

An Act to Amend the Legal Aid Act

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

1 Section 1 of the Legal Aid Act, chapter 26 of the Acts of New Brunswick, 2014, is amended

(a) in the definition “person” by striking out “services” and substituting “services or a holder of a legal aid certificate”;

(b) by adding the following definition in alphabetical order:

“Appeals Committee” means the Appeals Committee established under paragraph 6(1)(b.1). (comité d’appel)

2 Subsection 6(1) of the Act is amended

(a) in paragraph (b) of the English version by striking out “and” at the end of the paragraph;

(b) by adding after paragraph (b) the following:

(b.1) establish an Appeals Committee and appoint members from among the members of the Board to hear appeals concerning

( i) the removal of the name of a lawyer from a panel referred to in section 33, and

( ii) the audit of the accounts of a lawyer, and

3 The Act is amended by adding after section 13 the following:

Delegating powers and duties

13.1( 1) The Executive Director may delegate in writing his or her powers or duties under this Act or the regulations to an employee.

13.1( 2) In a written delegation under subsection (1), the Executive Director may

(a) impose on the delegate terms and conditions that the Executive Director considers appropriate, and

(b) authorize the delegate to subdelegate in writing the powers or duties to another employee and to impose on the subdelegate any terms and conditions that the delegate considers appropriate, in addition to those imposed in the Executive Director’s written delegation.

13.1( 3) A delegate or subdelegate to whom this section applies shall comply with any terms and conditions imposed in the Executive Director’s written delegation.

13.1( 4) A subdelegate to whom this section applies shall comply with any terms and conditions imposed on the subdelegate by the delegate.

13.1( 5) A decision or direction made by a person under a written delegation or subdelegation made under this section shall be deemed to be a decision or direction of the Executive Director.

4 Section 27 of the Act is amended

(a) in subsection (1) by striking out “in a manner prescribed by regulation”;

(b) in paragraph (2)(b) by striking out “under oath”;

27( 3.1) Despite subsection (3), an employee may depart from the rules for determining financial eligibility with the prior approval of the Executive Director.

(d) by adding after subsection (5) the following:

27( 5.1) If the amount that an applicant pays exceeds the cost to the Commission of providing legal aid services to the applicant, the Commission shall refund to the applicant the amount of the overpayment.

5 Section 28 of the Act is amended

(a) in subsection (13)

( i) in paragraph (c) by striking out “Executive Director” and substituting “Provincial Director”;

( ii) in paragraph (d) by striking out “Executive Director” and substituting “Provincial Director”;

(b) by repealing subsection (14).

6 Section 31 of the Act is amended

(a) in subsection (1)

( i) in paragraph (a) of the English version by striking out “legal aid”;

( ii) in paragraph (b) by striking out “the applicant” and substituting “the holder of the certificate”;

( iii) in paragraph (c) by striking out “the applicant” and substituting “the holder of the certificate”.

(b) by repealing subsection (2) and substituting the following:

31( 2) If a legal aid certificate is cancelled, the holder of the certificate, unless exempted from this subsection by the Executive Director on the ground that its application would prove unjust as against the holder, shall reimburse the Commission for the cost to the Commission of providing legal aid services to the holder 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 a holder of a legal aid certificate is the amount payable by the Commission to a lawyer in respect of legal aid services provided to the holder.

(d) in subsection (4)

( i) by repealing paragraph (a) and substituting the following:

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

( ii) in paragraph (b) by striking out “the applicant” and substituting “the holder of the certificate”.

7 Section 32 of the Act is amended

(a) in subsection (1)

( i) by repealing the portion preceding paragraph (a) and substituting the following:

32( 1) Subject to subsection (2), an applicant or a holder of a legal aid certificate may appeal to the area committee for an area if one has been established, or, if one has not been established, to the Provincial Director if an employee for an area

( ii) by repealing paragraph (b) and substituting the following:

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

( iii) by adding after paragraph (b) the following:

(b.1) amends a legal aid certificate, or

(b) by repealing subsection (2) and substituting the following:

32( 2) If the refusal, issuing, amending 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 or holder of a legal aid certificate may appeal to the Provincial Director.

(d) by adding after subsection (3) the following:

32( 3.1) The applicant or holder of a legal aid certificate may appeal to the Executive Director a decision of an area committee or the Provincial Director under this section.

(e) in subsection (4) by striking out “An area committee or the Executive Director” and substituting “An area committee, the Provincial Director or the Executive Director”;

(f) in subsection (5) by striking out “an area committee or the Executive Director” and substituting “an area committee, the Provincial Director or the Executive Director”;

(g) in subsection (7) by striking out “Executive Director or an area committee” and substituting “Executive Director, the Provincial Director or an area committee”.

8 Section 42 of the Act is amended by striking out “an applicant for legal aid services” and substituting “an applicant for legal aid services or a holder of a legal aid certificate”.

9 Section 46 of the Act is repealed and the following is substituted:

Decisions final

46( 1) Every decision of the Board, including a decision of the Appeals Committee, is final and may not be questioned or reviewed in any court.

46( 2) Subject to a decision that may be appealed to the Appeals Committee, every decision of the Executive Director is final and may not be questioned or reviewed in any court.

10 The Act is amended by adding after section 47 the following:

Extension of time

47.1 The Executive Director may extend the period of time for doing any act or taking any proceeding under this Act and the regulations and this function may be exercised although the application to extend is not made until after the expiration of the period of time.

11 Section 48 of the Act is amended

(a) by adding after paragraph (g) the following:

(g.1) governing the establishment and functions of legal aid clinics;

(b) by repealing paragraph (h);

(d) in paragraph (j) by striking out “an applicant for legal aid services” and substituting “an applicant for legal aid services or a holder of a legal aid certificate”;

(e) by adding after paragraph (n) the following:

(n.1) governing appeals referred to in paragraph 6(1)(b.1), including the form, manner and procedures with respect to an appeal;

(f) by adding after paragraph (p) the following:

(p.1) prescribing forms for a certificate of lien and a certificate of discharge;

(g) by repealing paragraph (q) and substituting the following:

(q) governing the reports on legal aid services of lawyers appointed or contracted with under section 14;

(h) in paragraph (r) by striking out “lawyers’ accounts and duty counsel accounts” and substituting “the accounts of lawyers appointed or contracted with under section 14”;

(i) by adding after paragraph (r) the following:

(r.1) governing the remuneration of lawyers appointed or contracted with under section 14 in accordance with an hourly rate based on the number of years the lawyer has been a member of the law society of a common law province or territory of Canada;

(j) by adding after paragraph (w) the following:

(w.1) authorizing the provision of legal aid services by counsel employed by a lawyer acting for a client and governing the provision of these services;

(k) by adding after paragraph (y) the following:

(y.1) defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both;

12 The Act is amended by adding after section 51 the following:

Employees

51.1 A person who was employed by the Commission before the commencement of this section and is still so employed on the commencement of this section shall be deemed to have been employed under section 13.

13 The Act is amended by adding after section 56 the following:

Panels

56.1 A lawyer whose name was on a panel immediately before the commencement of this section under the Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, shall be deemed to have had his or her name on the panel under section 33.