Legal Aid Regulations (current)

• Jurisdiction: Newfoundland and Labrador
• Coming into Force: 01 September 2023
• Year: 2023
• Type of Document: Regulations

CONSOLIDATED NEWFOUNDLAND AND LABRADOR REGULATION 1010/96

Legal Aid Regulations
under the
Legal Aid Act
(O.C. 96-165)

Amended by:

2001 c42 s45
2009 c31 s10a
88/15
2017 c10 s19
2022 cW-11.1 s166

CONSOLIDATED NEWFOUNDLAND AND LABRADOR REGULATION 1010/96

Legal Aid Regulations
under the
Legal Aid Act
(O.C. 96-165)

Under the authority of section 67 of the Legal Aid Act and the Subordinate Legislation Revision and Consolidation Act , the Lieutenant-Governor in Council makes the following regulations.

REGULATIONS

Schedule A

Schedule B

Schedule C

Schedule D

Schedule E

Schedule F

Short title

1. These regulations may be cited as the Legal Aid Regulations.

87/78 s1

Definitions

2. In these regulations

(a) "Act" means the Legal Aid Act;

(b) "controller" means the controller of legal aid appointed under the Act and section 99; and

(c) "plan" means the plan of legal aid established by the Act and these regulations.

87/78 s2

PART I
PROCEDURE Applications by residents of the province

3. (1) An application for legal aid by a resident of the province shall be in writing in a form prescribed by the minister.

(2) An applicant shall provide the information that is required in order to complete the application and shall sign a consent to inspect assets in a form prescribed by the minister.

87/78 s3

Applications by minors

4. An area director may require that an application for legal aid for a minor be made on his or her behalf by that person's parent or guardian when the circumstances appear to justify that application.

87/78 s4

Applications for mentally incompetent persons

5. (1) Notwithstanding subsection (2), an application for legal aid for a person who has been found, under an Act, to be mentally incompetent, mentally ill or incapable of managing his or her own affairs shall be made on that person's behalf by his or her committee or legal representative.

(2) Where the applicant is a patient in a hospital or an institution an application for legal aid may be made by the patient or a friend or relative of the patient on that person's behalf.

87/78 s5

Transfer to another area

6. (1) Where an area director believes that the legal aid applied for can be rendered more conveniently and economically by a solicitor in another area, or for another reason he or she considers proper, that area director may send the application, his or her report of the applicant's financial eligibility and the applicant's agreement to pay the contribution in accordance with the report to the area director in the appropriate area.

(2) The other area director referred to in subsection (1) may issue his or her certificate to the applicant in accordance with the application and other material received under that subsection and shall act and proceed as if the application has been made to him or her by the applicant in the first instance.

87/78 s6

Applications considered and refused by area director

7. (1) Subject to section 8 and section 47 of the Act, every application for legal aid shall be considered by the area director receiving it.

(2) If, under the circumstances, including questions of law or fact arising out of the applicant's claim to relief or defence or the nature of the matter sought to be dealt with by a solicitor,

(a) it appears that

(i) the applicant requires legal aid in a matter in which he or she is concerned in a representative, fiduciary or official capacity and it appears the cost can be paid out of any property or fund which is sufficient to pay the costs,

(ii) the applicant is entitled to financial or other aid or has reasonable expectation of the aid excluding assistance under the Social Assistance Act and has failed to satisfy the area director that the aid is not available to him or her,

(iii) the legal aid applied for is frivolous, vexatious, an abuse of the process of the court or an abuse of the facilities provided by the Act,

(iv) the relief sought can bring no benefit to the applicant over and above the benefit that would accrue to him or her as a member of the public or some part of it,

(v) the relief sought, if obtained, is not enforceable in law or there is no reasonable expectation of practically enforcing the relief,

(vi) the relief sought, if obtained, does not justify the cost of obtaining the relief,

(vii) the applicant has failed in an obligation to the commission with respect to legal aid without reasonable justification,

(viii) the professional services sought are available to the applicant without legal aid,

the area director shall refuse to grant legal aid to or issue a certificate to the applicant; or

(b) it appears that

(i) the applicant is one of a number of persons having the same interests under the circumstances that one or more may sue or defend on behalf of or for the benefit of all,

(ii) the applicant has a right to be joined in an action as plaintiff with one or more other persons having the same right to relief by reason of there being a common question of law or fact to be determined,

(iii) the application is for legal aid for which the applicant has previously received a certificate with respect to the same action or matter,

(iv) the relief sought is enforceable only in some other jurisdiction,

(v) the cause of action may be prosecuted or defended only in a court of some other jurisdiction, or

(vi) no sufficient reason for the granting of legal aid or the issuing of a certificate is shown at the particular time,

the area director may refuse to grant legal aid or to issue a certificate to the applicant.

87/78 s7; 10/86 s1

Provincial director's approval required before refusal

8. Where an application for legal aid is considered in the absence of the area director by the deputy director or another person, if that person is not or has not been a member of the Law Society of Newfoundland, he or she shall not refuse to issue a certificate on the grounds set out in section 7 without the approval of the provincial director.

87/78 s8; 2001 c42 s45

Determining financial eligibility

9. The financial eligibility of an applicant for legal aid shall be determined by the rules set out in Schedule E.

87/78 s9

Client's agreement re contribution

10. (1) Where an area director determines under section 44 of the Act that the applicant can pay some part of the cost of the legal aid applied for, and the applicant does not pay that part of the cost at that time, he or she shall require the applicant to enter into an agreement in a form prescribed by the minister before granting legal aid or issuing a certificate.

(2) Where an area director determines that the applicant can pay no part of the cost of the legal aid applied for, he or she shall require the applicant to enter into an agreement in a form prescribed by the minister before granting legal aid or issuing a certificate.

87/78 s10

Failure by client to sign agreement

11. Where the agreement contained referred to in section 10 is not signed and returned within 15 days of the date on which it was delivered or sent to the applicant, the application for legal aid shall be considered to have been withdrawn and no further proceedings shall be taken.

87/78 s11

Withdrawal of application

12. Withdrawal of an application under section 11 shall not be a bar to a later application for the same purpose.

87/78 s12

Notice of disposition by area director

13. Where an area director

(a) refuses to grant legal aid or issue or amend a legal aid certificate; or

(b) determines that he or she shall grant legal aid or issue a certificate or amended certificate on condition that the applicant make a contribution to the cost of the legal aid applied for,

he or she shall notify the applicant in a form prescribed by the minister and shall provide that person with the appropriate forms for appeal as prescribed by the minister.

87/78 s13

Notice of disposition by provincial director

14. (1) Where the provincial director

(a) refuses to grant legal aid;

(b) refuses to issue or amend a legal aid certificate;

(c) conditions the granting of legal aid or issuing of a certificate on the contribution of the applicant;

(d) suspends or withdraws legal aid; or

(e) cancels or amends a legal aid certificate,

he or she shall notify the applicant in a form prescribed by the minister and shall provide that person with the appropriate form for appeal as prescribed by the minister.

(2) Where an applicant wishes to appeal a decision referred to in subsection (1), he or she shall complete a form prescribed by the minister and deliver it to the provincial director's office in accordance with section 57.

87/78 s14

Previous assistance payments

15. All payments to the Newfoundland and Labrador Legal Aid Commission by the Department of Justice on behalf of a person who is eligible for assistance under the Social Assistance Civil Legal Aid Regulations made after July 10, 1980 , shall be considered to be payments of assistance under these regulations.

10/86 s2; 2001 c42 s45

Previous social assistance payments

16. All payments out of the Legal Aid Fund after July 10, 1980 , in respect of which a person is eligible for social assistance, civil legal aid, shall be considered to be payments of assistance on his or her behalf.

10/86 s2

Information additional to application

17. Where a person applies for legal aid with respect to a matter or proceeding coming under section 52 of the Act, he or she shall include with his or her application to the area director the materials required by that section.

87/78 s15

Evaluation of appeal

18. (1) Where an application contemplated in section 17 has been received by the area director, he or she shall submit it to the provincial director immediately together with all the information he or she has concerning the applicant, including a report of the amount the applicant was required to contribute to the fund and if he...