Legal Aid can help - if you're poor
But justice can be prohibitively expensive for the middle class

Three years ago Houssain Hessi, a welder at GE Canada's Lachine turbine plant, strained his back picking up a 60-pound roll of soldering wire. The pain was intense and it quickly became obvious that he would be unable to continue working. But his nightmare had only just begun.

Although workman's compensation officials approved benefit payments, GE Canada contested his claim, alleging that Hessi's lumbar strain was exacerbated by pre-existing disk degeneration. Hessi's claim was thus in jeopardy and his financial position quickly became precarious.

"I have four children and a wife to support and my job was my only income." said Hessi, who had been a welder for close to a quarter century. "The company would not give me lighter work, and I did not know what to do." (GE does not comment on individual cases).

Fortunately an official from the Union des Travailleurs et Travailleuses Accidentées de Montréal, told Hessi to get in touch with Annie Gagnon, a legal aid lawyer, who specializes in worker's compensation cases. Gagnon defended Hessi at a hearing held in late 2001, and obtained a judgment in his favor earlier this year.

Although Hessi payed $750 of Gagnon's fees, the balance was covered by the provincial government's legal aid program. "I was lucky there is a system to help the poor," Hessi said. "I would not have been able to afford a lawyer, on my own." Hessi's problem is common.

Equal access to justice is a key challenge confronting Canadians. As almost any law student learns in his first week, the link between justice and law is theoretical at best. Nowhere is this more evident than in Canada's two-tier legal system, which provides optimum legal services only to the rich. However Quebec's legal aid regime is an important tool that helps minimize some of the system's most blatant excesses.

According to statistics provided by the Commission des Services Juridiques, the agency that coordinates the province's legal aid regime, 218,000 Quebecers benefited from legal aid during the year ended March 31, 2002. Eighty-seven thousand of those were criminal cases, and the balance were civil and administrative issues, such as workman's compensation, liability and family law matters.

The total cases handled was down 27.8 percent from the 302,000 during 1994-1995, due to considerable tightening in the number of services covered.

Not everyone is eligible for legal aid. For example singles, earning more than $12,640 a year are ineligible, and those earning between $8,871 and $12,640 must contribute part of the costs.

Hessi was lucky. His salary fell just under the eligibility limit for a married person with children. He was also lucky to draw a sharp lawyer like Gagnon, because GE Canada brought in the big guns to the hearing, including a company official, a lawyer, as well as two doctors and GE Canada nurse to act as expert witnesses.

The only resources Hessi had at his disposal were a small budget to pay for a written medical report - and Gagnon. He couldn't afford the doctor's fee to testify on his behalf, which put him at a considerable disadvantage. Fortunately Gagnon was able to handle the opposition experts, and things turned out fine. But that's not always so.

According to a community organizer with the Union des Travailleurs et Travailleuses Accidentées du Quebec, the high price of medical experts is a key element that can weigh the system against the little guy.

"Medical experts charge between $700 and $1,800 for a written report, and a similar amount for each day they have to testify," said Liane Flibolte. "Companies that can afford to have their experts make court appearances have an advantage, because they can make replies on cross-examination."

According to Gagnon, another problem with the system is that not all lawyers accept legal aid cases. "The rates paid to lawyers often do not cover the number of hours we put into the cases," Gagnon said. "Lawyers that handle a lot of cases in one area of specialization can become efficient and make money. But those that do so occasionally, find it highly unprofitable."

Gagnon spends about half her time doing legal aid work, but these assignments only generate about 30 per cent of her annual income. With numbers like those you'd think that the best lawyers would eventually drop legal aid lawyers, and turn to private clients.

Yes and No. According to Erick Vanchestein, a spokesperson with the Commission des Services Juridiques, legal applicants are unlikely to get access to lawyers from the biggest Montreal firms, unless the lawyer is doing it on a quasi-charity basis.

However according to Raymond Lavoie, president of the Quebec Bar Association's private practice committee, an increasing number of legal aid cases are handled by private as opposed to commission lawyers. The 2,600 lawyers who accepted legal aid cases last year had an average of 15.3 years experience Lavoie said.

However although the poor have access to legal aid, the middle class is on its own. And with most lawyers more than $90 an hour, even a brief consultation can seem out of reach, let alone the many hours of legal research, court fees, and expert testimony.

According to Gagnon, lawyers have to be flexible in dealing with middle-class clientele, by using such tools as spreading out the payments over a period of time, or by allowing clients to pay their fees from the settlement money.

 

Photo caption: According to Hessi Houssain (shown here with lawyer Annie Gagnon) he would not have been able to afford legal services in his recent court case if it had not been for aid provided by the Quebec government.

 

Sidebar: Eligibility for legal aid coverage

Legal aid eligibility is dependent on one's ability to pay, which is determined based on family income, marital status and the number of kids. Those with higher incomes are required to contribute part of the legal costs. The calculations can be complex and can include a revision of a person's property and liquid assets. Here are some examples:

o For singles with income of less than $8,870, no contribution is required.
o For a married person, with two children and annual income of less than $17,500, no contribution is required.
o Singles with income of between $8,871 and $12,640 must contribute between $100 and $800 towards their legal costs.
o A married person, with two children and annual income of between $17,501 and $24,938, must contribute between $100 and $800.

For more information check out the Commission des Services Juridiques's Web-site at: http://www.csj.qc.ca/

peter@peterdiekmeyer.com

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