N.B. auditor general finds outdated eligibility puts people at risk of not getting legal aid

Some low-income New Brunswickers who need legal help with criminal or family matters may not be getting it because the criteria for legal aid eligibility haven't been reviewed for eight years, the province's auditor general says.

Paul Martin reviewed the efficiency and effectiveness of the New Brunswick Legal Aid Services Commission in providing legal aid across the province between April 1, 2023, and Dec. 31, 2024.

He concluded the commission is doing a "commendable job" in many areas, including the timely processing of applications, with 84 per cent approved or denied within a week, and the consistent application of financial eligibility criteria.

But "lack of timely review of the eligibility grid may contribute to the risk that [the commission] may not be fulfilling its mandate to serve low-income individuals as intended," Martin said in the report tabled Tuesday in the legislative assembly.

Almost 500 applications denied

The Legal Aid Services Commission provided full legal representation on 5,727 criminal and family cases in fiscal 2023-2024, according to the report.

Its scope of service includes criminal charges that come with a likelihood of incarceration, as well as a variety of family law services, such as child custody and access orders, child and spousal support, divorce in some circumstances and some emergency protection and intervention orders.

Of 8,717 applications, 498 — or six per cent — were deemed financially ineligible by an intake officer.

"Legal aid plays a vital role in ensuring low-income individuals are provided fair and equitable access to justice," Martin said.

He also found no formalized financial appeals process, and people who did appeal were not treated consistently, according to the first volume of his 2025 performance audit, which also includes chapters on public housing maintenance and N.B. Power's early retirement program.

For example, of the 140 appeals, 14 applicants were approved with an income of more than 10 per cent above the threshold, while 15 were denied despite their income being within 10 per cent of the threshold.

In addition, the commission has not has not adequately analyzed whether the use of staff or private lawyers is more cost-effective, Martin said.

A breakdown of hourly rates in the report indicates staff lawyers cost nearly twice as much for criminal defence and more than three times as much for family cases.

Commission officials said they prefer the staff model because it allegedly allows "time to have meaningful discussions with the individuals charged" and increases the likelihood of settlement prior to court appearance, according to the report.

But the commission has never assessed whether the stated qualitative benefits were actually realized, Martin said.

Nor has the commission established expected costs per type of case for either staff or private lawyers.

A review of private lawyer fee structures across eight provinces showed New Brunswick is the only jurisdiction without an established cost per case type or maximum hours private lawyers can be paid for legal services, he said. 

Recommends review of eligibility

The financial grid used to determine eligibility for legal aid services has not been updated since 2017, despite "significant inflation" over the last number of years, Martin said.

The tiered grid considers gross income, allowable deductions and household size.

Depending on the applicant's income and household size, if deemed eligible, they may be required to make a contribution to their legal costs of either $150 or $250.

He recommends the commission establish and implement a review process for the financial eligibility grid to ensure it's fulfilling its mandate as intended.

It's not up to his office to conduct a more broad-based review to determine whether levels should change, he told reporters.

"We considered it, but we believe that that is the responsibility of legal aid in determining the levels with which they're providing their programs to.

"Therefore, it's their decision to review it, to make those changes, and to modify the grid as they see appropriate for the services that they are prepared to deliver."

The commission agrees with the recommendation, but said it will take some time to provide proper analysis. It hopes to have that complete by Year 2, it said.

Other recommendations

Among Martin's other five recommendations are for consistent application of financial appeals, and value for money in service delivery.

The commission agrees with all of them, with one already completed and targeted implementation dates for the others ranging between ongoing and by Year 3.

The commission operates at arm's length from government. It's governed by a board of directors and reports to the legislature through the Department of Justice and Public Safety.

Its 2023-2024 budget was about $14.2 million, with $13 million of that provided by the province.