Information for lawyers

Refugee and immigration services

Information for Lawyers

Questions and answers for refugee and immigration reform


Glossary

  • BOC Basis of Claim
  • CIC Citizenship and Immigration Canada
  • IRB Immigration Refugee Board
  • LASA Legal Aid Services Act
  • PIF Personal Information Form
  • RPD Refugee Protection Division

If you cannot find your question about the changes to refugee and immigration services on this page, please submit it in the form below.


LAO refugee law services under the Balanced Refugee Reform Act


Basis of Claim


Q. Does a refugee claimant have to go through the eligibility process at an inland office prior to applying for legal aid?

A. No. An inland claimant does not have to go through the Citizenship and Immigration Canada (CIC) eligibility process prior to applying for legal aid. People who intend to make a claim should call LAOs toll-free line (1-800-668-8258) and ask whether they are eligible for legal aid. If they are eligible, they should apply for legal aid as soon as possible.



Q. How is LAO currently providing refugee law services?

A. LAO currently provides refugee services according to its interim measures announced on Jan. 25, 2013 and its expansion of these interim measures announced on Feb. 5, 2013.



Q. Now that there is no longer a three-hour opinion or a three-hour certificate for narrative only, how will LAOs so-called subject matter experts assess the claim without any information from the claimant? I understand that they will continue to issue the five-hour certificate based on certain countries, but what about the rest?

A. LAO will immediately triage claimants from low acceptance rate countries (about 20 per cent of LAOs client base) to be interviewed by a designated LAO staff subject matter expert with experience in refugee law services. LAOs language service provider will provide immediate interpretation services to assist the subject matter expert. The subject matter will be in an informed position to determine whether the claim has sufficient merit and likelihood of success to justify the expenditure of public funds.

Through this process, a majority of cases will receive a BOC certificate.



Q. What do I do in situations where I have multiple BOCs from the same family, where the claims are distinct?

A. LAO acknowledges that five hours may not be sufficient for multiple BOCs from the same family where the claims are distinct.

If the basis of the refugee claim is different for different family members, LAO may issue additional certificates of five hours for principal claimants from the same family.

Lawyers who encounter this situation should write LAO, explain in detail why the claim is distinct, and advise LAO that a second family member will apply for a certificate.



Q. On what criteria will the merit of the claim for eligibility be assessed at the first stage, for the five-hour BOC certificate?

A. To determine eligibility, LAO will first consult its list of countries which have conditions indicating that specific individuals or groups are likely to face persecution or death. The majority of claimants are from these countries. Claimants who are on this list and qualify financially for legal aid services will receive BOCBOC coverage.



Q. What if a client is not on LAOs list of countries with conditions indicating that specific individuals or groups are likely to face persecution or death?

A. No client will be automatically denied coverage on the mere basis of his or her country of origin. LAO will determine coverage for clients who are not from these countries through merit assessment.

Subject matter experts will ask the claimant a comprehensive series of questions in order to assess whether there is sufficient merit to the claim and a likelihood of success that would justify the expenditure of public funds.

These questions will help LAO determine whether the claimant has:

  • a fear or personalized risk of persecution, torture, risk to life or cruel or unusual treatment or punishment
  • reason for fearing persecution
  • an internal flight alternative
  • state protection, where the claimants identified grounds for the claim and country conditions support a well-founded fear of persecution



Q. Will LAO issue a certificate retroactively to cover the preparation of the BOC form?

A. Yes. Ontario Regulation 106/99 s.12 states that LAO may issue a certificate with retroactive effect to a person to whom a lawyer has already provided legal or other services, if LAO is satisfied that:

  • the services were performed in an emergency situation, and notice that such services were performed is given to the area director within six months of the work being performed
  • the applicant would have qualified for legal aid at the time such services were rendered
  • no previous application for the same services has been refused
  • the lawyer has not accepted (or did not intend to accept) a private retainer for such services.

Please contact your district director if you are seeking retroactive authorization for preparing and filing the BOC form. LAOs district directors consider all requests for retroactive authorization on a certificate for services.

To qualify, requests must

  • meet LAOs financial and eligibility test
  • meet the criteria outlined in s.12 of O/Reg 106
  • be accompanied by a copy of the BOC, date-stamped to confirm filing with the IRB


Q. How do I request an amendment to my BOCBOC certificate to add the hearing? What documents does LAO need?

A. To request an amendment to your BOC certificate to add the hearing, please send a copy of your filed BOC and your hearing notice. You will need to use LAOs IFAX technology. These instructions explain how to send us the information.

LAO will review the BOC and authorize coverage for the hearing if it determines sufficient merit to the claim.



Q. Can I bill for more than five hours for BOC services on a certificate that has been amended to add the hearing?

A. Yes, if there is a hearing amendment. While LAO believes that BOCs, under usual circumstances, can be prepared and filed within five hours, LAO understands that this is not possible in some situations. BOC Counsel might spend additional time which can be covered by the hearing amendment. Accounts billed for more than five hours on BOC prep on a certificate amended to cover the hearing will be eligible for payment.



Q. What happens if I spend seven hours on the BOC and the certificate is not amended for hearing coverage?

A. Counsel does assume some risk for spending more than five hours on a BOC certificate. It is advisable for lawyers to work within the hours authorized.

That said, if LAO does not authorize certificate coverage for the hearing and counsel spends more than five hours on a BOC certificate, counsel can submit an account for discretion consideration. The discretion request for the BOC must meet the exceptional circumstances test. If counsel fails to demonstrate that the case falls within the exceptional circumstances test, discretion may not be paid.



Q. Do I have to file the BOC with the IRB prior to billing for BOC services?

A. Yes. Lawyers must file the BOC with the IRB prior to billing for BOC services. LAO may request lawyers provide the IRB date-stamped BOC cover page with the account.

In the unusual circumstance that a claimant discharges counsel or, due to conflict, must remove him/herself prior to filing the BOC with the IRB, billing for BOC services may be appropriate without the filing of the BOC. The settlement of these accounts is within the discretion of LAOs Lawyer Services and Payments Department.



Q. Are disbursements covered on the BOC certificate?

A. Yes. The BOC certificate covers disbursements BOC for interpretation and medical reports.



Q. On what criteria will the merit of the claim be assessed, for the 11-hour certificate amendment to attend at hearing? Will clients/counsel be required to submit a copy of the BOC?

A. With respect to the criteria, for those claims automatically approved for BOC coverage, LAO will need to review information provided on the BOC form to assess whether there is sufficient merit to the claim and likelihood of success to justify the expenditure of public funds to cover the hearing.

Clients/counsel will be required to submit the copy of the BOC they filed with the IRB.



Q. When will the assessment take place? How long will it take for LAO to assess the second stage of the application (for the 11 hours to attend at hearing)?

A. The assessment will take place once LAO receives the BOC form. The assessment for continued coverage will take up to three business days.



Q. I take it there will no longer be a requirement to submit the hearing date is that correct?

A. For certificates issued under the new legislation, there is no longer a requirement to submit the Notice of Hearing to LAO or await the scheduling of a hearing date before requesting the certificate be amended to add the hearing authorization.




Certificate and travel authorizations


Q. Will LAO authorize a certificate for a claim filed and scheduled to be heard in Montreal? Will LAO pay for travel?

A. Yes. On an interim basis, LAO will:

  • authorize a certificate for counsel to represent an eligible claimant from Ottawa whose BOC form was filed in Montreal and whose hearing is scheduled in Montreal, and also
  • pay for travel to Montreal in most circumstances, pursuant to LAOs existing travel policy.

Lawyers are advised to request authorization of the district director for travel before they incur the cost.



Q. Will LAO pay the travel expenses for counsel from Ottawa to travel to Toronto, with an Ottawa claimant, for the claimants hearing?

A. Yes, but rarely, and only with prior approval of the district director. LAO expects counsel and claimants in Ottawa to attend the IRB in Montreal for hearings.



Q. Will LAO issue a certificate if claimants have not yet made refugee claims?

A. Yes. LAO will take applications and may issue a certificate based on the country coded list if an applicant is financially eligible regardless of whether or not he or she has made a refugee claim at the time of application.




Refugee Appeal Division (RAD) certificate coverage


Q. What is the RAD?

A. It is a new entity created by the federal government, in light of the Protecting Canadas Immigration System Act, to hear appeals of negative Refugee Protection Division (RPD) decisions and create different streams of applicants based on the country of origin.



Q. Will LAO cover appeals to the RAD?

A. Yes, as part of its pilot to issue RAD certificates to eligible applicants until Feb. 28, 2014 or until the pilots $500,000 capped budget is exhausted.

Applicants must provide LAO with:

  • a completed RAD merit assessment form;
  • the Basis of Claim form (if not previously provided to LAO or amended prior to hearing)
  • the RPD decision
  • any other material that will assist LAO in determining legal merit and likelihood of success.


Q. What happens with the RAD pilots capped budget of $500,000 runs out?

A. LAO is evaluating the cost and benefit of the RAD pilot, and will create a longer-term strategy for RAD coverage in consultation with the federal government, the bar and the Refugee Lawyers Association.



Q. Will LAO pay counsel to prepare the RAD merit assessment and provide materials?

A. LAO will follow the same procedure it uses for federal court judicial review applications. It pay counsel to prepare the RAD merit assessment or provide materials only if counsels RAD certificate application is approved by the RAD Review Committee and LAO issues a RAD certificate.

Upon approval of the RAD application, LAO will add four hours for the assessment and 16 hours for the appeal (written submissions).



Q. Who will make decisions on whether an appeal to the RAD has merit?

A. A RAD review committee, consisting of LAO staff and private bar lawyers knowledgeable and experienced in refugee law, will assess all applications and decide whether to issue a certificate for an appeal to the RAD. To determine whether there are grounds for an appeal, LAO must receive completed copies of:

  • the RAD merit assessment form
  • the stamped BOC form ( if not previously submitted to LAO)
  • the decision by the RPD
  • any other documents that may help LAO in its decision.

Incomplete applications will not be put before the committee for review.



Q. How many hours will be authorized on the RAD certificate?

A. Lawyers will be authorized a maximum of 16 hours to prepare and file written submissions to the RAD. Existing disbursement rules will cover additional costs such as filing fees, authorizations for transcripts, interpretation if required, and other appellate costs.

In the unusual event of a RAD oral hearing, LAO will amend the RAD certificate to add four hours for hearing preparation plus attendance time.

As mentioned elsewhere, counsel with no private retainer for the RAD application who submits an approved RAD certificate application will receive a four-hour certificate for preparing materials in support of a- legal aid application for RAD coverage.



Q. What happens if I am asked to appear for a RAD oral hearing?

A. In the unusual event of a RAD oral hearing, LAO will amend the RAD certificate to add four hours for hearing preparation, plus hearing time.




Other


Q. Why has LAO decided to cut costs in its services to Ontarios refugees?

A. LAO intends to preserve client services. We need to balance client demands with LAOs own financial obligations as set out in the LASA to operate within our means. This initiative will help LAO continue meeting its mandate to provide high-quality legal aid services to all our low-income clients including refugees seeking asylum and immigrants in an innovative and cost-efficient manner. It will also help LAO transition to the new federal refugee and immigration legislation expected to come into force later this year.



Q. Why has LAO chosen to make cutbacks in the area of refugee law? Why not make cutbacks elsewhere?

A. LAO has reduced expenses elsewhere. LAO has reduced its administration costs and changed how services are delivered in all the other areas of law the organization supports. Between 2009 and 2012, LAO expenditures for immigration and refugee legal services increased by 24 per cent.

Furthermore, LAO has spent far more on services to refugees than it receives in funding. In 2010/11 LAO spent $21 million for refugee and immigration services. LAO received approximately $7 million from the federal government for these services.



Q. What is the spending reduction that will result from these changes?

A. Changes to LAOs refugee and immigration services are expected to reduce expenditures by approximately $1 million or roughly 4.7 percent of LAOs overall spending for refugee and immigration services.



Q. Does LAO have any resources to support claimants who are not eligible for a certificate or who are simply seeking information regarding the refugee process?

A. Yes. LAO has developed LawFacts, a free, online public legal information website that now includes information, written in plain language, about refugee and criminal law in Ontario. It includes what is required to make a refugee claim, important deadlines to keep in mind, and helpful resources to get the process started.




Have a question about the refugee and immigration changes?


If you cannot find an answer to your question about LAO's changes to refugee and immigration services on this page, please submit it in the form below. We will try to answer you within two business days.

If you would like to be notified once LAO has posted an answer to your question, please include your email in the form. LAO reserves the right to withhold questions from online publication.


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