Discretion Guidelines
Summary Sheet
Discretion Guidelines – CRIMINAL
All charges withdrawn as a result of lawyer’s actions
Please explain in detail how your actions resulted in the withdrawal of all charges.
Discharge of all charges at preliminary hearing as a result of a lawyer’s actions
A discharge can only happen after the accused has been arraigned.
Results
If an accused is discharged after arraignment without the calling of any crown evidence, please
obtained explain how the results obtained are exceptional circumstances.
Acquittal of all charges at trial as a result of a lawyer’s actions
Sentence significantly reduced as a result of a lawyer’s actions
LAO cannot infer the outcome was a result of your actions. Please explain how your actions resulted
in a significant reduction in sentence, e.g. additional research.
A good result is not sufficient; it must be exceptional. (e.g. sentence reduced from 5 years to 4 years
or 60 days to 30 days is good, but not exceptional)
Material contribution to an outcome that is precedent-setting, that affects the administration of
justice in favour of the defendant
Novel legal issue: e.g. attempt aggravated assault by HIV transmission or unusual factual situation
Rare motion e.g. Third party records, recusal motion, mistrial.
There are not a lot of rare motions. Please explain in detail how the motion is not a “boiler plate”
(standard/typical) motion and how the circumstances of the motion are exceptional circumstances
Please be specific. Avoid use of single descriptors e.g. Charter motion.
For a rare Charter motion, for example, explain in detail the nature of the Charter motion; any special
Complexity difficulties or complications; the outcome; and how the circumstances of the Charter motion meet the
of Matter exceptional circumstances test.
Forensic/expert evidence
If a forensic/expert report is not disputed or preparation to cross examine is not undertaken, please
explain in detail how the forensic/expert evidence meets the exceptional circumstances test.
Client’s special needs e.g. mental health (unique proceedings)
Please be specific. Avoid use of single word descriptors (eg. Client bipolar.)
Please explain in detail how client’s special needs may be considered exceptional circumstances.
Explain in detail how client’s special needs materially affected the proceedings, e.g. the court
proceeding had to be adjourned four times due to erratic behaviour.
Characteristics of witness: e.g. child witness (testimonalamentary capacity)
Defense facing exceptional Crown/prosecutorial resources
Exceptional circumstances beyond the norm should be detailed by you e.g. if the prosecution
assigns two crown, this may constitute exceptional circumstances.
Disclosure
Please explain in detail how disclosure in your case may be considered exceptional circumstances.
Avoid use of single word descriptors (e.g. voluminous). Be specific.
Relevant questions for your consideration include:
(i) What was the nature of the legal proceeding?
Other
(ii) What was the volume of disclosure? e.g. three bankers boxes, 300 pages
Relevant
(iii) What was the nature of the disclosure? e.g. cell phone tower records, medical/technical reports,
Factors
three videotaped interviews
(iv) What challenges were faced in reviewing the disclosure? e.g. witness recording with heavy accent
(v) How did the nature or volume of disclosure relate to your preparation of the case?
(vi) Was the disclosure relevant to the proceedings, and if so, how?
(vii) Have you discharged the onus of establishing exceptional circumstances by providing sufficient
details regarding the disclosure in your dockets and your discretion request form?
Extended sentencing hearings
Timeliness/reduction in appearances i.e., Justice on Target criteria
Early resolution in keeping with JOT principles in and of itself does not support exceptional
circumstances. Explain how your actions resulted in early resolution and/or reduction in
appearances
High profile case
Most high profile cases will end up in the BCM Program or mid-level case management.
High profile cases typically involve the involvement of the media and increased Crown resources.
Factors that generally require existence of other discretion circumstances - CRIMINAL
× Lawyer’s degree of skill and competence
× Number of co-accused
× Parity between Counsel
“Parity between counsel” refers to lawyers acting for co-accused or opposing counsel on the same case with
the anticipated outcome being that the amount of discretion, if any, allowed would generally be similar.
× Client out of jurisdiction
× Young offender
Discretion Guidelines – REFUGEE
Results obtained Successful refugee claim – IRB success rate of 20% or less
Novel claims (eg. Transgender)
Complexity of
Exclusion
Matter
Multiple countries of citizenship
Ministerial intervention
Minor
Domestic Violence
Other Relevant
Mental Illness
Factors
Please be specific. Avoid use of single word descriptors e.g. Client bipolar.
Please explain in detail how client’s special needs meet the exceptional circumstances test.
Explain in detail how client’s special needs materially affected the proceedings e.g. the
mental health issues, such as Post Traumatic Syndrome, underlies the basis of claim.
Illiteracy
Expert witness
Factors that generally require existence of other discretion circumstances - REFUGEE
× Lawyer’s degree of skill and competence
× Number of claimants only
× Country Research
× IRB Adjournments
× Written Submissions
× Inadequacy of interpretation
Discretion Guidelines – FAMILY (Support, Custody, Access)
Motion for interim spousal support: Award at high end of Spousal Support Guidelines
Motion for interim child support:
Retroactive to date of application or support ordered where other party stands “in loco parentis”
Access, custody:
Results
Custodian successful in mobility application or change in “de facto” due to parental alienation
obtained
Change in interim custody
Contested no access order
Client’s special needs: e.g. mental health
Client’s special needs includes: addictions, minor parents
Complexity Please be specific. Avoid use of single word descriptors e.g. Client bipolar
of Matter Please explain in detail how client’s special needs meet the exceptional circumstances test.
Explain in detail how client’s special needs materially affected the proceedings e.g. the client’s
mental health directly affects the issues in dispute
Self-employed payor, imputing income for child/spousal support issues
Sexual or serious physical abuse allegations (criminal charges)
Hague Convention matters
Discretion Guidelines – CFSA
Protection Application: Child is not found to be in need of protection. No protection order made.
Motion - temporary care and custody:
Child is not found to be in need of protection. No temporary care and custody order made.
Results
Motion - summary judgement on protection application:
obtained
Successfully defended and/or costs awarded
Status review: lesser protection order made
Child or parent special needs eg. mental illness, addiction
Complexity Please be specific. Avoid use of single word descriptors. e.g. Client bipolar.
of Matter
Please explain in detail how client’s special needs meet the exceptional circumstances test.
Explain in detail how client’s special needs materially affected the proceedings e.g. the client’s
mental health directly affects the issues in dispute.
Sexual or serious physical abuse allegations (criminal charges)
Aboriginal factors, band issues
Discretion Guidelines – FAMILY and CFSA
Disclosure
Same as above (see Other Relevant Factors - Criminal)
Other
Forensic/expert evidence
Relevant
Multiple children/parents/parties
Factors
Well funded litigant
Timeliness/reduction in appearances through mediated/negotiated settlement
Factors that generally require existence of other discretion circumstances – FAMILY and CFSA
× Lawyer’s degree of skill and competence
× Parity between Counsel
× Client out of jurisdiction
Discretion Guidelines – ALL AREAS OF LAW
Contributions of the applicant or other contributors
The fact the client has signed a contribution agreement will be considered when a discretion
request is made. LAO reviews accounts from the perspective of the reasonable client of modest
means.
Although LAO will be indemnified for the cost of the services, it does not mean that as a
consequence, all requests for discretion should be paid.
Certificates with contribution agreements are typically the cases where LAO gets client complaints
about the services provided by the lawyers because the client is on the line for the payment.
LAO employees exercising discretion are required to adhere to the discretion policies and guidelines,
so that if the account is subject to a complaint by the client (who is in a unique position to know
Other
what the lawyer did or did not do, and to assess the outcome) LAO can clearly justify the exercise of
Regulatory discretion based on exceptional circumstances.
Factors
The amount of time realistically set aside in anticipation of a lengthy trial which time was not
otherwise filled by the lawyer
This applies when a lengthy trial “collapses” (as a result of, for example, an unexpected guilty plea,
withdrawal, stay) at beginning of or early in scheduled trial proceedings and discretion would be
exercised with respect to hours actually worked, not the notional hours that the lawyer would have
performed had the trial proceeded (counsel is expected to mitigate)
While it is extremely important to the Legal Aid Ontario that matters be resolved in an expeditious
manner, and while the result obtained was certainly a favorable one, (withdrawal or early
resolution such as trial collapsing – savings to LAO) we do not pay for notional time set aside.
Notional lost court time is a factor that the LP Staff Lawyer may consider when deciding whether to
grant discretion with respect to the hours that counsel actually expended above the tariff maximum
in preparing for trial. A reasonable client of modest means would not be expected to pay a lawyer
for trial time that did not actually occur because the client’s matter was settled on the eve of trial.
How to make a request for discretion
× Please provide specific details to support each Discretion Guideline factor selected on the Discretion
Request Form
×
The onus is on counsel to establish exceptional circumstances. Unless persuaded that there are exceptional
circumstances in the case that would warrant an increased fee, LAO will not be able to pay discretion, e.g,
stating that a client has special needs without describing in detail how these special needs impacted the
proceeding and the time counsel spent will result in a denial of discretion.
×
Discretionary increase requests
• should be attached Online to the specific account for which for which an increase in payment above the
tariff is being sought; a request should not be sent by mail or fax
• must be made in writing using LAO’s Discretion Request Form
• must include detailed reasons outlining the exceptional circumstances of the case which justify a
discretionary increase and should address the period of service of the specific account. Attaching copies
of earlier opinion letters rendered in the matter can be helpful