Up until last week, Legal Aid Alberta was expecting Justice Minister Mickey Amery to contact them with a well-discussed contract for signing.
Instead, (immediately prior to the Canada Day long weekend), they were provided with an ultimatum Thursday evening, with a deadline of Monday for signing. Reporting indicates they will not be able to provide services past next week. (CBC, Edmonton Journal)
In a press release, the Alberta Family Law Association writes “AFLA urges the Government of Alberta to not abrogate its immense responsibility to the most vulnerable Albertan children and families.”
As copied from the Family Counsel website, Legal Aid Alberta Board Chair Ryan Callioux wrote to members:
Message to Roster Lawyers from Legal Aid Alberta Board Chair Ryan Callioux
July 2, 2024
To our valued Roster Lawyers,
Legal Aid Alberta has for the past several months been negotiating a new Governance Agreement with the Government of Alberta (as represented by the Minister of Justice) and the Law Society of Alberta. The current Governance Agreement expired on June 30, 2024.
For those of you who do not know what the Governance Agreement was, it was an agreement between the Law Society of Alberta, the Government of Alberta, and Legal Aid Alberta that codified how we operated. It secured the independence of Legal Aid Alberta, while at the same time respecting the role of Government to ensure efficient use of funds, and the necessary role of the Law Society of Alberta in securing the sound practice of law in the Province of Alberta. Without a Governance Agreement in place, our ability to conduct business is compromised.
Legal Aid Alberta, of course, understood that the agreement was coming to an end, as the expiry date of that agreement was March 31, 2024 (later extended to June 30, 2024, to accommodate the timeline for negotiations). As early as March 2023, we began the work internally to prepare, reaching out to the Government of Alberta to inform them that we felt that the existing agreement should be extended and that we did not feel the need to reopen it to make changes because it was functioning well. The Governance Agreement took many months to design and negotiate, and we saw no need to go through that again. In essence, it was working well.
For several months we heard nothing. Then, on November 6, 2023, we received a letter from the Government that they wanted to reopen negotiations but provided no details as to why or what they wanted to address. We responded on November 30, 2023, with the suggestion that we tackle only administratively cumbersome sections and advised that otherwise we were comfortable with the current state of the agreement. If there were specific issues of concern, we would be supportive to restricting the discussion to those items, as there was minimal appetite to reopen the Governance Agreement in its entirely.
In early 2024, dates were set to reopen discussions on the Governance Agreement. As you can imagine, significant resources were invested into the negotiation effort by the three parties to the Governance Agreement (the Law Society of Alberta, Legal Aid Alberta, and the Government of Alberta). Those negotiations advanced fruitfully to the point where there were only a handful of relatively minor drafting issues to resolve coming out of the meetings on March 18 and April 10, 2024. There was a subsequent meeting scheduled for May 15, 2024, to conclude any remaining issues. Essentially, we came to a place where we believed that (but for a few minor details that could not serve as a serious impediment) we had a mutually beneficial and acceptable agreement, which would have resulted in a Governance Agreement being in place for the next several years.
Despite the extensive efforts that had been invested by Legal Aid Alberta and the Law Society of Alberta in the negotiation process, and despite repeated requests for information and updates after the April 10 meeting and leading up to the May 15 meeting, there were no substantive communications coming from the Minister’s office relating to the matters that remained for further discussion. The meeting scheduled for May 15 was cancelled by the Minister without explanation on May 10, 2024, and there were no substantive communications from the Minister’s office thereafter. We still had reason to believe that it might just be a matter of receiving the final draft of the agreement for signatures.
However, as the date for the expiry of the Governance Agreement grew nearer, we obviously became more concerned. On June 24, 2024, I wrote to the Minister and urgently requested an update. For 3 days we heard nothing. Then on the evening of June 27, 2024, one day before the long weekend during which the existing Governance Agreement would expire, I received a letter from Deputy Minister of Justice, Malcolm Lavoie. The letter indicated that the Minister had determined – unilaterally and without any notice to or consultation with the other parties to the Governance Agreement – that the “best approach” was to embark on an entirely new path that would require the Board to make a snap decision on whether to accept the Minister’s proposal to sign a Grant Agreement. The deadline imposed by the Minister to sign the Grant Agreement was July 1, 2024.
The Grant Agreement would represent a significant departure from the expired Governance Agreement in several key respects, including the following:
1. The parties to the Grant Agreement would be the Minister of Justice as the representative of His Majesty the King in Right of Alberta, and the Legal Aid Society of Alberta. The Law Society of Alberta would not be a party and would have no continuing role in the relationship;
2. The term of the Grant Agreement would be for 1 year, expiring on June 30, 2025, but it could be terminated without cause or reason on 30 days’ written notice; the sufficiency of funding would be determined in the sole discretion of the Minister and would end March 31, 2025;
3. Legal Aid Alberta’s independence would be significantly curtailed, including that the Minister would have the authority to unilaterally determine that Legal Aid Alberta’s financial situation is sufficient such that the funding that would otherwise be provided would not be required;
4. The total amount of the funding and payment of the same could be adjusted at any time in the sole discretion of the Minister;
5. The Minister would reserve the right to disallow and recover from Legal Aid the amount of any expenditure that the Minister concluded is contrary to the terms of the Grant Agreement;
6. Legal Aid Alberta would be subject to strict restrictions on use of the funds, including with respect to entering into contracts of employment and contracts with third party service providers;
7. Legal Aid Alberta would be subject to onerous and significant financial reporting requirements; and
8. Generally, the Grant Agreement is skewed heavily in favour of the Minister, with almost no meaningful obligations on the part of the Minister, including any obligation to continue funding.
This represents an untenable situation. The Grant Agreement was sent to the Board on June 27, 2024. The Minster was fully aware that we would not have adequate time to respond as it was not reasonable to expect the Board to consider its terms, reasonably study its impacts on the organization, and by extension on vulnerable Albertans, and respond by the deadline imposed.With the support of the Board, a group of extremely qualified and experienced professionals with decades of relevant experience, I advised the Minister’s office that we do not accept that the Minister’s approach is reasonable. I also advised the Minister’s office that even if the Board were able to convene an emergency meeting to consider the proposed Grant Agreement on the eve of the Canada Day long weekend, it was unreasonable to expect the Board to even consider, let alone make a decision on, such an enormous issue on such short notice. To do so would put the Board and its Chair at risk of failing to meet their fiduciary obligations to Legal Aid Alberta.
I also advised the Minister’s office that Legal Aid Alberta is now in a position where its ability to carry out and deliver the Legal Aid Plan, and to meet its mission to provide legal services to disadvantaged Albertans and uphold the Rule of Law, is compromised. The Board has requested the Minister’s office to urgently provide a detailed and thorough explanation as to why the Ministry has made this abrupt shift, the rationale behind its decision-making, and its justification for doing so in the absence of consultation with or even the courtesy of notice to Legal Aid Alberta of its intention to do so.
Where does this leave us? The answer is complicated and uncertain.
Legal Aid Alberta has a duty to Albertans, to its stakeholders, vendors, justice partners including the roster of lawyers that take legal aid certificates in order to serve Albertans, and to the dedicated employees of Legal Aid Alberta to announce what has happened. This is that announcement.
The proposed Grant Agreement erodes the independence of this organization and its ability to deliver services. At the core of the justice system in any well-functioning democracy is the independence of a healthy and functional Legal Aid system, which guarantees that no matter what the state charges a citizen with, that citizen will be represented by competent and independent counsel. There are many methods to deliver Legal Aid services. It can be done under a Society or as part of a legislated format. However, it is critical that whatever the format, the independence of Legal Aid must be sacrosanct. If it is not, the justice system will suffer significantly.
Our principal objective is therefore always to defend the independence of Legal Aid Alberta. It is my duty to announce to you that the proposed Grant Agreement threatens the independence of Legal Aid Alberta, and seriously compromises its ability to perform its function.
I must also announce to you that without a Governance Agreement in place, Legal Aid Alberta will no longer be able to issue certificates as of 4:30 p.m. on July 9, 2024. Not even for duty counsel. The financial reality of these circumstances means that we are stretching as far as we can to operate until the deadline. Upon the cessation of the issuance of certificates, the Justice system may face crippling challenges. Notably, the Government of Alberta failed to remit the payment that was due on April 1, 2024. We had expected that to be forthcoming. We have a legal duty to preserve remaining funds so that the employees of Legal Aid Alberta and the service providers and vendors who serve this organization can still get paid.
Roster lawyers can be assured that we expect the Government of Alberta will fund any certificate issued before the expiry of the Governance Agreement, as per section 18.2 of now expired agreement Governance Agreement. Even if work continues on that certificate, we expect that the Government of Alberta will discharge its obligations under the Governance Agreement and will provide funding until the certificate is concluded, regardless of what happens to Legal Aid Alberta.
I am calling on the Government of Alberta, Minster Amery and the Premier to come back to the negotiating table, provide a full and complete answer as to what it is seeking and why, and to agree to a new Governance Agreement on an urgent basis, one that ensures the independence of legal aid for decades to come, without interference from Government actors, except to ensure the efficient use of funds in a typical and reasonable business manner.
To the employees of Legal Aid Alberta, we want you to know that we will do everything we can to resolve this quickly. Simply put, we recognize that you are critical. For years you have had to deal with one existential crisis after another that has threatened the existence of Legal Aid Alberta at the hands of government. We are seeking to remedy that. You should not have to endure uncertainty to continue the mission of the organization, which you so capably serve.
To our stakeholders and justice partners, court staff, and roster lawyers, we will be working hard to address your concerns and are mindful of your interests as we seek to remedy this situation.
To Albertans, I assure you that we are completely committed to resolving this matter as soon as possible.
Ryan Callioux, KC
Board Chair
Legal Aid Alberta