There’s nothing like an election to concentrate the mind.
In recent weeks, the Quebec government settled acrimonious labour disputes that threatened to spill over during the election. The provincial government, faced with the prospect of large swaths of legal actors interrupting electoral efforts with unsightly placards during the campaign, quietly reached an agreement with private sector lawyers who take on legal aid mandates, and more recently with government lawyers and notaries.
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The Quebec tax man recently signed a new collective agreement with its lawyers that calls for for annual salary increases of 2% and improved working conditions. The three-year deal, which runs from April 2020 to March 2023, also includes a parity clause for lawyers and notaries, putting an end to an acrimonious labour negotiations between the government department and the organization Avocats et notaires de l’État québécois (LANEQ) which represented Revenu Quebec’s lawyers and notaries.
A coalition of Quebec lawyers’ organizations that launched a series of pressure tactics during the summer to compel the Quebec government to implement in-depth reforms of the legal aid tariff structure for private sector lawyers have called off labour disruptions after the Barreau du Québec too reached an agreement with the provincial government.
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The deal will in part revise the legal aid fee schedule, broadens the number of matters that will make it easier to obtain additional compensation for long and complex mandates, and institutes 14 recommendations deemed to be urgent by an independent panel of experts that called on the Quebec government to implement without delay “necessary and urgent” reforms to the legal aid tariff structure for private sector lawyers. The pact also creates a new committee that will monitor the implementation of amendments to the Quebec Legal Aid Act, and analyze in detail and make recommendations over a new fee structure.
“It’s a good agreement, it’s a first agreement to catch up a bit, but there was a real urgency to settle things that should have been settled a long time ago,” said Catherine Claveau, bâtonnière of the Quebec Bar. “This implementation is a preliminary and essential step towards the complete structural reform of legal aid in Quebec.”
Following the accord, lawyers’ organizations have voted to put an end to pressure tactics. Besides half-day and day-long work stoppages, Quebec private sector criminal lawyers showed up at courthouses at 11 in the morning, wreaking havoc with rolls, and turned down legal aid cases dealing with sexual and intimate partner violence because they are complex cases for which several legal acts were not remunerated.
“We are very happy,” said Marie-Pier Boulet, president of the Association Of Defence Counsel of Quebec. “We demanded reforms and this is a first step. It represents a new way of doing things.”
According to Élizabeth Ménard, a Montreal criminal lawyer and head of the Montreal Criminal Defence Lawyers Association (AADM), the new accord denotes a major and welcome step towards significant legal aid reform. “It gives us hope for the future, in the government’s approach and the importance it gives to access to justice and the improvement of the legal aid system,” said Ménard. “There’s no doubt we have made very significant gains, and we are on the right track. So we are very satisfied.”
Expert panel report spurs agreement
The agreement was triggered by the publication of a report by a five-member blue ribbon panel that issued 181 recommendations to revamp Quebec’s legal aid system, and its tariff structure.
Headed by former Court of Quebec Chief Justice Élizabeth Corte, the report said that the current mixed remuneration system based on a flat fee and a fee for service, though “imperfect,” must continue to prevail to attract both young and experienced practitioners. But the flat fee structure must be revised and revamped as it currently does not take into account a practitioner’s workload at each of the stages of the mandate, particularly efforts dealing with analysis of the case and the preparation of hearings, added the report which noted that the number of requests for additional compensation has surged, from 668 applications in 2015 to 1,580 in fiscal 2020-21. All told, the report made 14 recommendations regarded as urgent – all of which have been adopted by the new deal.
The new agreement, in addition to doubling legal aid fees for appeals, overhauls the special considerations policies and establishes a category of “special” cases that will benefit from the new remuneration scheme, as recommended by the experts. Under this provision of the accord, private sector lawyers who take on legal aid mandates will be paid for case preparation for preliminary motions and for cases under which clients have been charged under s. 752 of the Criminal Code, except for offences dealing with drinking and driving.
“We are no longer just going to be paid a flat rate, but also for preparation,” explained Boulet. “In the past we had to ask for so-called special considerations at the end of the case, something we never knew whether it would be granted. Now we will be entitled to a preparation period that depends on the length of the Crown’s case when the case goes to trial. And in cases where we plead guilty and have an agreement, tariffs have been increased by 30% to 40% — those are significant increases. Clearly, the tariffs were outdated.”
Under the deal, a monitoring committee, composed of representatives of the Quebec Bar, the Ministry of Justice and the Commission des services juridiques (CSJ), will be established to monitor the application of new legal aid tariffs and any legislative amendments that may be introduced following the adoption of the recommendations. “It’s a major development because there were a lot of other demands that were not addressed in the August 25th agreement, but which the committee will continue to look at to determine what is appropriate to modify and improve in the system,” said Ménard. “It’s an implicit recognition that in spite of the new agreement, it is insufficient and that we still need to look at more comprehensive reform.”
Quebec Bar
Also paying heed to recommendations made by the experts, the Quebec Bar has transformed the entity that will negotiate legal aid rates, said Claveau. The new committee, which is in the midst of being formed, will consist of 22 members, including a representative of each of the Bar’s sections and members of the private sector who work in administrative, criminal, family and immigration law, explained Claveau.
“This new committee will have greater independence and will ensure better representation of lawyers in private practice,” said Claveau. “I wanted regional representation, representatives from the major associations and people who work in the field as they are in the best position to see whether or not proposals are satisfactory.”
Both Boulet and Ménard view this change positively.
An amended version of this story was originally published in The Lawyer’s Daily.