Information for Lawyers
Discretionary Increases
Lawyers are expected to seek and obtain all available authorizations on a certificate before billing. It is expected that all accounts rendered will be within the hours allotted to the certificate.
In some cases, where exceptional circumstances can be demonstrated, a discretionary increase in payment of an account may be granted where an account has exceeded the tariff maximum for the certificate.
A request for discretionary increase should not be made in advance and should not be made for more than one account at a time.
If you have sought and obtained all available authorization for the certificate, and your account still exceeds the amount of time authorized under the certificate or will exceed the amount of time authorized under the certificate, you must make a request for discretionary increase in order to have the additional time billed considered for payment.
Where an account exceeds the amount of time authorized under the certificate, and where discretionary increase is not requested, the account will be settled in accordance with the tariff maximum for the certificate.
Discretionary increase requests are dealt with by the Lawyer Services and Payments department.
How to make a request for discretion
All discretionary increase requests should be attached to the specific account for which discretionary increase is being sought; a request should not be sent separately.
Discretionary increase requests must be in writing and should be made using LAO’s Discretion Request Form, or by way of letter.
The discretionary increase request must include detailed reasons explaining why a discretionary increase is justified in the circumstances and should address the period of service of the specific account. Attaching copies of earlier opinion letters rendered in the matter can also be attached to the account.
The relevant legal aid regulation states that "...except in exceptional circumstances the fees provided for shall normally apply for the described legal services..." Unless persuaded that there are exceptional circumstances in the case, a Legal Accounts Officer will not grant a discretionary increase.
A persuasive discretionary increase request usually includes:
- a brief narrative of the nature of the case;
- the issues involved;
- any special difficulties or complications;
- the progress of the case resulting from the work billed;
- the purpose and outcome of any court attendances.
Dockets must be attached to your online account, and can be of assistance in making a request for discretionary increase in providing additional detail regarding the services rendered; ; e.g. if several hours were spent in preparation, give specifics of the preparation, such as review of disclosure, interview with witnesses, or preparation of a trial brief. Dockets are considered in conjunction with the discretionary increase request letter.
If you are dissatisfied with the disposition of an account, whether interim or final, you may request submit a request for review within 60 days of payment of that account. Requests for review of the settlement of an account must be in writing and must include information or additional detail that, if provided at first instance, may have given rise to discretionary increase.
Reasons for discretion
Discretionary increase may be granted having regard to the exceptional circumstances of the matter, including but not limited to:
- the result obtained
- the complexity of the matter;
- the contributions of the client or other contributors;
- preparation time done in anticipation of a lengthy trial or hearing, which did not proceed through no fault of the lawyer;
- any other relevant factor which would warrant an increased fee.
”Any other relevant factor” may include:
- Seriousness of the matter/ issues;
- length of the trial or hearing;
- number of charges against the client or type of relief being sought;
- number of parties involved;
- volume of disclosure;
- complexity of evidence;
- client’s special needs;
- specialized nature of the case;
- importance of the matter to the client;
- amount of court or tribunal time saved;
- amount of money saved by Legal Aid Ontario.
Retroactive request for discretionary increase
Where an account exceeds the amount of time authorized under the certificate, and where discretionary increase is not requested, the account will be settled in accordance with the tariff maximum for the certificate.
Retroactive requests for discretionary increase on an account can be made in writing within 60 days of payment of the account. Such requests should be made using LAO’s Request for Retroactive Discretionary Increase Form. The same considerations apply.
