Application for judicial review of a decision of the Legal Services Society of British Columbia in which it denied the applicant’s claim for legal aid representation in her family law case; dismissed

Administrative law – Decisions reviewed – Legal Aid Commission – Judicial review – Procedural requirements and fairness – Standard of review – Correctness – Reasonableness – Legal aid

M.H. v. Legal Services Society of British Columbia, [2018] B.C.J. No. 217, 2018 BCSC 195, British Columbia Supreme Court, February 9, 2018, H.J. Holmes J.

M.H. sought judicial review of a decision of the Legal Services Society of British Columbia (the “LSS”) denying her application for legal aid representation in her family law case against her child’s father, G.M., about parenting arrangements and child support. Her application for legal aid was initially denied by the intake worker on the basis that M.H. did not meet the qualifications. This decision was upheld by the Provincial Supervisor.

M.H. argued both procedural and substantive grounds on judicial review. With respect to the procedural grounds, M.H. argued that the Supervisor fettered her discretion by binding herself to an unwritten standard to receive legal aid, which required actual physical harm, when the written policy (the IPP) allowed for coverage in a broad array of situations (not solely limited to physical harm). Additionally, M.H. argued the Supervisor failed to consider relevant evidence as part of her application and the intake worker failed to provide any reason for the initial denial. With respect to the substantive grounds, M.H. argued the Supervisor’s interpretation of the IPP was unreasonable because it failed to consider risks beyond physical harm. On the other hand, the LSS denied procedural unfairness and said the denial, in the circumstances, was not unreasonable. The LSS emphasized the immense volume of applications it processes annually (some 30,000) and the scarce resources it is allocated to provide legal aid representation.

The court agreed with the LSS, confirmed the Supervisor’s decision, and dismissed M.H.’s petition.

In terms of the procedural arguments advanced by M.H., the primary issue was whether the Supervisor fettered her own discretion by restricting eligibility to situations where there is a risk of physical harm. In considering this issue, the court reviewed the relevant underlying legislation, including the Legal Services Society Act, S.B.C. 2002, c. 30. Further, the court relied on an affidavit filed on behalf of the LSS, which made clear that the LSS gives priority to physical safety in determining eligibility for coverage. Looking at the IPP, the court found that it did not restrict eligibility to a limited number of situations, but rather set out criteria that may make a person eligible, physical violence being one of the central factors. Combined with the budgetary constraints placed on the LSS, the court held that the Supervisor did not fetter her discretion.

In terms of the substantive grounds, the court applied the standard of reasonableness. The court rejected M.H.’s argument that the Supervisor failed to address specific concerns or to explain the reasoning that led to her decision. While the court recognized that a decision-maker must not be silent on the critical issues, each decision must be looked at in its own context. Here, the court found the key issues were considered. Further, the court specifically noted that the decision was made in a context that demanded “efficacious deposition of this application”, noting the high volume of applications received by the LSS for legal aid representation. It was clear that this fact significantly influenced the court’s reasoning on this point.

In the end, the court dismissed M.H.’s application for judicial review.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.

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