Legal Aid Act

CHAPTER 252

OF THE

REVISED STATUTES, 1989

amended 1999 (2nd Sess.), c. 8, s. 8

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An Act Respecting Legal Aid

Short title

1 This Act may be cited as the Legal Aid Act. R.S., c. 252, s. 1.

Interpretation

2 In this Act,

(a) "Commission" means the Nova Scotia Legal Aid Commission;

(b) "Executive Director" means the person who is appointed Executive Director of the Commission pursuant to this Act;

(c) "legal aid" means legal aid provided pursuant to this Act and the regulations. R.S., c. 252, s. 2.

Nova Scotia Legal Aid Commission

3 (1) There is hereby established a body corporate to be known as the Nova Scotia Legal Aid Commission.

(2) The Commission consists of

(a) fifteen directors appointed by the Governor in Council on the recommendation of the Attorney General; and

(b) two persons in the public service designated by the Attorney General.

(3) Seven of the directors appointed by the Governor in Council shall be from those persons nominated to the Attorney General as directors by the Council of the Nova Scotia Barristers' Society.

(4) In nominating persons to the Attorney General, the Council of the Nova Scotia Barristers' Society shall provide a sufficient number of names of proposed directors so that the Attorney General will be able to make an appropriate recommendation to the Governor in Council.

(5) Directors of the Commission may include persons in the public service and persons who hold an office or appointment under any enactment of the Parliament of Canada or of the Province.

(6) In establishing the Commission, five directors shall be appointed for a term of one year, five directors for a term of two years and five directors for a term of three years.

(7) All directors appointed subsequent to the appointments establishing the Commission shall be for a term of three years.

(8) Each director is eligible for re-appointment to the Commission upon expiry of his term.

(9) Where a vacancy occurs on the Commission for any reason whatsoever due to a member not completing his term then such vacancy shall be filled as soon as practicable by appointment in the manner provided in this Section and the member so appointed shall hold office for the residue of the term for which he is appointed or until a successor is appointed.

(10) A vacancy on the Commission does not impair the right of the remaining directors to act. R.S., c. 252, ss. 3, 4 (part).

Directors

4 (1) One of the directors shall be appointed Chairman of the Commission.

(2) The directors may be full-time directors or part-time directors in the discretion of the Governor in Council.

(3) Each full-time director of the Commission shall devote the whole of his time to the performance of his duties under this Act and shall be paid such remuneration as is determined by the Governor in Council.

(4) Each part-time director of the Commission may be paid such remuneration for attendance at meetings of the Commission as is determined by the Governor in Council.

(5) Each director of the Commission shall be paid such travelling and living expenses incurred by him in the performance of his duties under this Act as are determined by the Governor in Council. R.S., c. 252, s. 4 (part).

Quorum and right to vote

5 (1) A quorum of the Commission consists of seven members.

(2) The persons in the public service designated by the Attorney General do not have a vote in the deliberations of the Commission. R.S., c. 252, s. 5 (part).

Powers and duties of Commission

6 (1) The Commission is responsible for all matters relating to legal aid in the Province and for persons employed by the Commission and has all the powers and shall perform all the duties conferred and imposed upon it by this Act, any other Act, the Governor in Council or the Attorney General.

(2) In the exercise and performance of its functions, powers and duties under this or any other enactment, the Commission shall act in accordance with any general directions of the Attorney General.

(3) Anything by this Act directed to be done by the Commission may be done by the Commission, a committee of the Commission or an officer, servant or agent of the Commission. R.S., c. 252, s. 6.

Personnel

7 (1) Subject to this Act, the Commission may employ such officers and employees and technical and professional advisers and consultants as it considers necessary for the proper conduct of its activities.

(2) For all purposes of the Public Service Superannuation Act, every person employed by the Commission, otherwise than temporarily, is deemed to be a person employed in the public service of the Province and service in the employment of the Commission is deemed to be public service.

(3) The Commission shall

(a) deduct periodically from the salary of every person to whom subsection (2) applies such amount as is directed in accordance with the Public Service Superannuation Act to be deducted from the salary of an employee in the public service of the Province under that Act;

(b) pay over the same plus the employer's contributions calculated in accordance with the provisions of the Public Service Superannuation Act to the Minister of Finance,

which amounts when so received shall be paid into and form part of the Superannuation Fund under the Public Service Superannuation Act.

(4) Where by the Public Service Superannuation Act

(a) any payment is directed to be made into the Superannuation Fund by the Governor in Council or by the Minister of Finance; or

(b) any superannuation allowance or other sum is directed to be paid out of the Consolidated Fund of the Province,

in respect of any employee of the Commission the Governor in Council may provide that such payment, superannuation allowance or other sum shall be paid by the Commission.

(5) For the purposes of the Public Service Superannuation Act, every person employed in the Nova Scotia Legal Aid Program administered by the Nova Scotia Barristers' Society on the first day of November, 1977, and subsequently employed by the Commission is deemed to have been employed in the public service while serving with the Nova Scotia Legal Aid Program and shall be credited with such service provided that he makes application in writing to the Minister of Finance on or before the first day of November, 1978, and pays to the Minister of Finance the employee's contribution at the rate in effect at the time he becomes an employee together with interest at the rate determined by the Governor in Council by regulation pursuant to Section 20 of the Public Service Superannuation Act. R.S., c. 252, s. 7.

Administration cost and expenses

8 The cost and expenses of administering this Act shall be paid out of the money voted by the Legislature for that purpose and such other money as may be received by the Commission for that purpose by gift or grant. R.S., c. 252, s. 8.

Accounts and records

9 (1) The Commission may maintain in its name one or more accounts in one or more chartered banks designated by the Minister of Finance.

(2) All moneys received by the Commission through the conduct of its operations or otherwise on behalf of or to the credit of the Commission may be deposited to the credit of the accounts established pursuant to subsection (1) and may be administered and expended by the Commission exclusively in the exercise and performance of the powers, duties and functions of the Commission.

(3) The Commission shall keep proper books of account and records.

(4) Subject to such directions as to form as the Minister of Finance may give, the Commission shall prepare in relation to its operations, in respect of each financial year of the Commission, statements of accounts which shall include

(a) a balance sheet, a statement of income and expense and a statement of surplus, containing such information as, in the case of a company incorporated under the Companies Act, is required to be laid before the company by the directors at an annual meeting; and

(b) such other information in respect of the financial affairs of the Commission as the Minister of Finance may require.

(5) Upon the request of the Minister of Finance the Commission shall provide to the Minister of Finance and the Attorney General financial statements and reports in the form and containing the information prescribed by the Minister of Finance. R.S., c. 252, s. 9.

Audit

10 The accounts of the Commission shall be audited and reported on by the Auditor General at least once every year and at such other times as the Governor in Council or the Minister of Finance may direct. R.S., c. 252, s. 10.

Fiscal year and annual report

11 (1) The fiscal year of the Commission is the period beginning on the first day of April and ending on the thirty-first day of March of the following year.

(2) The Commission shall before the first day of November in each year make an annual report to the Attorney General containing

(a) an audited financial statement as outlined in subsection (4) of Section 9 for the last fiscal year;

(b) such other matters as may be prescribed by the Attorney General or the Governor in Council. R.S., c. 252, s. 11.

Tax exemption

12 The Commission and its property are exempt from taxation under or pursuant to any Act of the Legislature. R.S., c. 252, s. 12.

Property vested in Crown

13 All property, whether real or personal, acquired, possessed or received by the Commission and all profits earned in the administration of the same are property of Her Majesty in right of the Province. R.S., c. 252, s. 13.

Executive Director

14 (1) The Commission may appoint a barrister to be Executive Director of the Commission.

(2) Subject to the Commission, the Executive Director is responsible for the general administration of the legal aid plan and staff in accordance with this Act and the regulations. R.S., c. 252, s. 14.

Entitlement to legal aid and powers of barrister

15 (1) Except as otherwise provided in this Act or the regulations, legal aid may be granted to a person otherwise entitled thereto in respect of any proceeding or proposed proceeding including an appeal

(a) in the Supreme Court;

(b) in a county court;

(c) before a judge of the provincial court;

(d) in the Family Court;

(e) where the applicant is charged with an indictable offence or where an application is made for a sentence of preventive detention under Part XXIV of the Criminal Code (Canada);

(f) under the Extradition Act (Canada) or the Fugitive Offenders Act (Canada);

(g) in the Federal Court of Canada; or

(h) in the Supreme Court of Canada.

(2) Except as otherwise provided in this Act or the regulations, a barrister providing legal aid may draw documents, negotiate settlements or give legal advice necessary to carry out his duties under this Act. R.S., c. 252, s. 15.

When legal aid granted

16 (1) Legal aid may be granted at any stage of a proceeding before any court and for any proceeding including proceedings in execution.

(2) Legal aid may not be granted after the matter for which legal aid may have been granted has been completed, except in unusual circumstances and then only with the consent of the Commission. R.S., c. 252, s. 16.

Application for legal aid

17 (1) An application for legal aid shall be made in the manner and form prescribed in the regulations to

(a) the appropriate legal aid official in the area in which the applicant resides at the time the application is made or in which the matter or proceeding for which legal aid is required arises or in which the legal services required are to be performed; or

(b) the Executive Director.

(2) An application for legal aid shall set forth

(a) the financial condition of the applicant;

(b) the basis of the applicant's claim and all the information prescribed by the regulations; and

(d) any additional information required by the Commission.

(3) Every applicant or recipient of legal aid shall notify without delay the Executive Director or the solicitor in charge of his case of any change in his condition making inaccurate any information supplied by him to obtain legal aid. R.S., c. 252, s. 17.

Certificate of eligibility

18 (1) Where the regulations provide for legal aid to be provided or where the Executive Director determines that legal aid should be provided by a barrister who is to be compensated by the Commission, the appropriate legal aid official shall issue a certificate of eligibility in a form approved by the Commission.

(2) No compensation shall be paid for legal aid rendered prior to the issuance of such a certificate without the approval of the Commission. R.S., c. 252, s. 18.

Refusal or suspension of legal aid

19 Legal aid may be refused, suspended or withdrawn, as the case may be, or a certificate cancelled with regard to any person otherwise eligible when that person, without sufficient reason,

(a) refuses to provide the information or documents required to study his application;

(b) refuses to provide the information required under this Act and by the regulations;

(c) refuses to exercise his legal rights and remedies;

(d) refuses to co-operate with the solicitor rendering professional services for him, in the manner that is normal and customary between a solicitor and his client;

(e) makes a false statement or conceals information in applying for legal aid;

(f) is charged for an offence the same as or similar to one for which he has been convicted previously;

(g) is receiving or has received an unreasonable total amount of legal aid; or

(h) is not ordinarily resident in one of the provinces of Canada. R.S., c. 252, s. 19.

Charge for legal aid

20 Subject to this Act and the regulations, the Commission may, upon receipt of an application and where the applicant is found eligible, furnish legal aid

(a) without charge to any individual who is unable to pay therefor; or

(b) with a partial charge, to any individual who is able to pay a portion of the cost thereof. R.S., c. 252, s. 20.

Agreement to pay part of cost

21 Where the Commission determines that the applicant can pay some part of the cost of the legal aid applied for, the Commission may require the applicant to enter into a written agreement to pay that part of the cost under such conditions and at such time or times as may be set by the Commission. R.S., c. 252, s. 21.

Party and party costs

22 (1) Unless a court otherwise orders, a court shall have the discretion to award party and party costs for or against a recipient of legal aid.

(2) Where a court orders costs against a recipient of legal aid, these costs shall be payable by the recipient and not by the Commission.

(3) Where a court orders costs to be paid to a recipient of legal aid, the recipient may be required by the Commission to pay those costs to the Commission. R.S., c. 252, s. 22.

Effect of recovery by recipient

23 Where a recipient of legal aid recovers under a judgment, order, settlement or otherwise in respect of the proceedings for which legal aid was rendered, the recipient may be required to make a payment to the Commission for the services rendered on the same basis as if an ordinary solicitor and client relationship existed. R.S., c. 252, s. 23.

Where false or misleading information given

24 A person who knowingly makes false or misleading statements or provides false or misleading information in an application for legal aid may be required to make a payment to the Commission for services rendered upon that application on the same basis as if an ordinary solicitor and client relationship existed. R.S., c. 252, s. 24.

Appeal to Commission

25 An applicant or client, as the case may be, may appeal to the Commission where

(a) he is refused a grant of legal aid;

(b) he is refused a legal aid certificate;

(c) he is refused an amendment to his legal aid certificate;

(d) contributions are required by the applicant as a condition of the granting of legal aid or the issuing of a certificate;

(e) legal aid is suspended or withdrawn; or

(f) the legal aid certificate is cancelled or amended. R.S., c. 252, s. 25; revision corrected.

Agreements

26 Subject to the approval of the Governor in Council, the Attorney General or the Commission, or both, may enter into, vary or amend any agreement or agreements with the Government of Canada, a province or Dalhousie Legal Aid Service, or any or all of them, respecting legal aid upon such terms and conditions as are agreed. R.S., c. 252, s. 26.

No conflict of interest

26A A barrister employed by the Commission to provide legal aid is not in a conflict of interest by reason only of representing a person in a dispute where a party opposite in interest in the dispute is being advised or represented by another barrister working for a different office of the Commission. 1999 (2nd Sess.), c. 8, s. 8.

Regulations

27 (1) The Governor in Council, on the recommendation of the Commission and the Attorney General, may make such regulations as he deems necessary or advisable for the more effective carrying out of the purposes of this Act and for dealing with any matters for which no express provision has been made or in respect of which only partial or imperfect provision has been made and, without restricting the generality of the foregoing, may make regulations

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

(b) prescribing the powers, duties and functions of the Commission, committees of the Commission, the Executive Director and other persons employed for the purposes of this Act;

(c) prescribing the classification, remuneration and other terms and conditions of employment of the Executive Director and other persons employed for the purposes of this Act;

(d) prescribing oaths of secrecy and requiring persons, or any class thereof, engaged in the administration of this Act to take and subscribe such oaths;

(e) respecting the non-disclosure of information furnished by or about an applicant for or recipient of legal aid;

(f) prescribing the accounts and records that shall be kept of the transactions of the fund;

(g) respecting the payment out of the fund of the expenses of the Commission attributable to the administration of this Act and the regulations;

(h) to prevent unnecessary utilization or abuse of legal aid;

(i) providing for the investigation of complaints of violations of this Act or the regulations or of any order made under this Act or the regulations;

(j) providing for the settlement, recovery and payment of costs and other moneys due to the Commission;

(k) providing for the payment of costs awarded against a person to whom legal aid has been given;

(l) respecting panels of barristers who may provide legal aid;

(m) respecting the participation of Dalhousie Legal Aid Service in legal aid;

(n) respecting the participation of students-at-law in legal aid;

(o) respecting the matters in respect of which legal aid may be provided;

(p) respecting applications for legal aid;

(q) respecting entitlement to legal aid;

(r) prescribing procedures for applying for legal aid;

(s) prescribing information to be disclosed by applicants for legal aid;

(t) prescribing rules for determining financial eligibility for legal aid;

(u) respecting the fees to be paid to barristers for professional services under this Act or the regulations;

(v) respecting the establishment and revision from time to time of a tariff of fees to be used in taxing a barrister's bill;

(w) providing for the settlement of accounts for professional services under this Act or the regulations;

(x) respecting appeals to the Commission;

(y) respecting barristers' reports on legal aid;

(z) respecting the repayment of disbursements to barristers;

(aa) governing the calling of meetings of the Commission and the conducting of business at such meetings;

(ab) governing the appointment of committees and subcommittees and prescribing the duties of committees and subcommittees;

(ac) prescribing the procedures to be followed and the forms to be used in carrying out the provisions of this Act and the regulations;

(ad) respecting any matter, whether of any of the foregoing kinds or not, necessary or advisable to carry out effectively the intent and purpose of this Act.

(2) The regulations made pursuant to subsection (1) shall be regulations within the meaning of the Regulations Act. R.S., c. 252, s. 27; revision corrected.

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