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GOVERNMENT ASSISTANCE PROGRAMS - Legal aid

Tuesday, October 20, 2020 @ 7:53 AM  


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Appeal by Harvey from a decision dismissing her application to have the respondent Legal Aid Commission place her name back on the Panel. The applicant held several positions as a salaried employee of the Commission. In her latest position, she worked as a Legal Aid lawyer for the Commission. When her term ended, her name was removed from the Panel. She objected to the removal claiming she did not cease to be a Panel member as she never resigned. She was told her name was removed in accordance with the Commission’s standard practice when her employment with the Commission ended and that she would have to re-apply to have her name placed back on the Panel. The Commission then rejected her application claiming she exhibited animus towards the Commission. The Chambers judge concluded that the Commission’s removal of the applicant’s name from the Panel was not done for cause but was rather an administrative act in accordance with the standard policy and procedure of the Commission. As her name was not removed for just cause, there was no right of appeal in respect to such administrative action. The Chambers judge held that the Commission’s decision not to appoint the applicant to the Panel was not a public action but rather a private action and therefore not subject to judicial review.

HELD: Appeal allowed. The Chambers judge erred in holding that the Commission had legal authority to remove a lawyer from the Panel for reasons other than just cause. The Commission had no authority to unilaterally impose its policy or practice on private bar Panel members who subsequently became Commission employees. The legislative direction that a solicitor could be removed from a Panel only for just cause could not be reconciled with an interpretation of the Legal Aid Act that would give the Commission authority to remove that solicitor for other reasons under the guise of a guideline, procedure or requirement. The Commission’s policy or practice whereby a lawyer was automatically removed from the Panel simply because he or she ceased to be its employee was not only unauthorized by the Act, but it was contrary to the statutory limitation that restricted the Commission from unilaterally removing a lawyer from the Panel for reasons other than just cause. The decision by the Commission to remove the applicant from the Panel was subject to judicial review.

Harvey v. Saskatchewan Legal Aid Commission, [2020] S.J. No. 339, Saskatchewan Court of Appeal, J.A. Ryan-Froslie, R. Leurer and B. Barrington-Foote JJ.A., September 16, 2020. Digest No. TLD-October192020003