Ontario’s financial eligibility standard for legal aid: falling behind the rest of Canada

By Nye Thomas

Ontario’s financial eligibility standard for legal aid, which has lagged behind other Canadian jurisdictions for many years, is falling even farther behind. Quebec, Alberta and British Columbia are moving further ahead in recognizing that financial eligibility for legal aid services must be increased.

What’s happening in Ontario

Ontario’s legal aid financial eligibility standards have not changed since 1996, more than 17 years ago. As a result, the coverage gap between eligibility for legal aid and Ontario’s low-income population continues to grow.

Financial eligibility for legal aid services is now restricted to the poorest of the poor in Ontario. The numbers tell the story:

  • Legal aid financial eligibility guidelines are approximately half the unofficial poverty line in Ontario as calculated by Statistics Canada’s Low Income Measure.
  • LAO estimates there are approximately 1.2 million Ontarians who are below the poverty line but who are not poor enough to financially qualify for a legal aid certificate.
  • LAO estimates there were approximately 1 million fewer Ontarians eligible for a legal aid certificate in 2011 than in 1996, notwithstanding the province’s growing population.

The problem with Ontario’s low financial eligibility guidelines has not gone unnoticed: in December 2011, the Auditor General of Ontario specifically identified Ontario’s very low standard as a matter of concern, and pointed out that the majority [of approved applicants] are on some form of social assistance or have no reported income.

Since then, financial eligibility for legal aid has become a major issue in Ontario’s justice system.

Comparison to Quebec

By way of contrast, other large Canadian provinces have implemented significant increases in legal aid financial eligibility. Most recently, the provincial government in Quebec announced, in October 2013, a plan to significantly increase financial eligibility for legal aid in Quebec to a minimum wage standard by June 1, 2015.

On January 1, 2014, Quebec implemented the first of two significant increases in financial eligibility. They are applicable to all legal aid services in Quebec.

This first phase increased financial eligibility for legal aid in Quebec by 15 per cent, and extends non-contributory coverage to seniors living alone whose principal source of income is their Old Age Security benefits and the Guaranteed Income Supplement. These seniors — recognizable by any standard as a vulnerable, low-income group — are not eligible for a legal aid certificate in Ontario.

The second phase will be implemented on June 1, 2015. Its express purpose is to facilitate access to justice for the portion of the population that works, but has limited income.  After this date, financial eligibility will be indexed to match increases in the Quebec minimum wage. This is intended to ensure that financial eligibility will not erode below the minimum wage standard over time.

Quebec’s Commission des services juridiques announced these changes on its website homepage as a historic increase that forms part of the Quebec government’s commitment to improve access to justice. The announcement indicates that the January 2014 increase will extend eligibility to over 200,000 people and that, when the second phase is implemented in June 2015, 500,000 additional Quebecers [will be] eligible for free legal aid.

Overall, this initiative will result in an estimated increase in legal aid financial eligibility of approximately 35 per cent, making an estimated 500,000 more Quebecers eligible for legal aid.

Comparison to other provinces

In taking this bold step, Quebec joins initiatives by British Columbia and Alberta that also significantly increase financial eligibility for legal aid.

British Columbia, for instance, now links its financial eligibility guidelines to an objective, external marker of low income and also in adjusting its guidelines annually for inflation.

Since 2008, British Columbia has used Human Resources Development Canada’s “Market Basket Measure” of goods and services as its comparator. Annual increases are based on the provincial Consumer Price Index; the most recent increase was in effect as of July 2013.

By way of contrast, while financial eligibility for legal aid in Ontario has remained unchanged for almost 20 years, the legal aid financial eligibility threshold for a single person in British Columbia is now more than 64 per cent higher than in Ontario.

Looking toward the future

LAO is optimistic that financial eligibility for legal aid in Ontario can be increased.

The experience in other provinces proves that improving access to justice and financial eligibility for legal aid is a both a principled and practical investment in clients, the justice system, and the province as a whole, even in a climate of financial austerity.

Nye Thomas is LAO’s Director General, Policy and Strategic Research. Nye has been leading LAO’s financial eligibility project.