For refugee and immigration lawyers
Questions & answers
What are the rules for completing dockets in refugee matters? How much and what kind of detail needs to be provided?
Refugee Sample Docket
Date Activity From To Hours 2013-02-04 Meet with claimant George Smith to prepare BOC 3:30 p.m. 4:55 p.m. 1.4 2013-02-04 Prepare draft of BOC 4:55 p.m. 6:00 p.m. 1.1 2013-03-04 Meet with claimant to review and sign BOC 3:30 p.m. 4:00 p.m. 0.5 2013-03-19 Prepare for IRB hearing 8:15 a.m. 9:05 a.m. 0.8 2013-03-20 Attend IRB, Toronto, before Board Member Colin for hearing 9:30 a.m. 11:30 a.m. 2.0 2013-03-27 Attend IRB, Toronto, before Board Member Colin for second sitting. Hearing adjourned pending written submissions 9:30 a.m. 11:30 a.m. 2.0 2013-03-28 Prepare written submissions 2:00 p.m. 4:00 p.m. 2.0
Is ministerial intervention considered a discretionary factor?
Yes. Based on input from the bar, LAO has explicity identified “ministerial intervention” in the discretion request criteria. It has added ministerial intervention to its clarified discretion criteria, under “complexity.” Lawyers can request a discretionary increase based on ministerial intervention on LAO’s revised discretion request form.
Basis of Claim (BOC) questions
How does LAO do merit assessment on the BOC prior to authorizing hearing representation?
LAO currently relies on staff knowledgeable in refugee matters to assess merit prior to authorizing the nine hours to proceed to a hearing. Merit involves determination of the legal merit of the claim and likelihood of success of the claim.
Does a refugee claimant have to go through the eligibility process at an inland office prior to applying for legal aid?
No. An inland claimant does not have to go through the Immigration, Refugees and Citizenship Canada (IRCC) eligibility process prior to applying for legal aid. People who intend to make a claim should call LAO’s toll-free line (1-800-668-8258) and ask whether they are financially eligible for legal aid. If they are eligible, they should apply for a BOC authorization aid as soon as possible.
Note: you do not have to wait until the (IRCC) determines eligibility to make a claim.
What do I do in situations where I have multiple BOCs from the same family, where the claims are distinct?
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 each distinct claim.
Lawyers who encounter this situation should write LAO, explain in detail why each claim is distinct, and advise LAO that a second family member will apply for a certificate.
Will LAO issue a certificate retroactively to cover the preparation of the BOC form?
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. LAO’s district directors consider all requests for retroactive authorization on a certificate for services.
To qualify, requests must
- meet LAO’s 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
How do I request an amendment to my BOC certificate to add the hearing? What documents does LAO need?
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 Legal Aid Online electronic document submission technology. These instructions explain how to send us the information as well as how to send us other documents related to refugee and immigration matters.
LAO will review the BOC and authorize coverage for the hearing if it determines sufficient merit to the claim.
What happens if I spend eight hours on the BOC and the certificate is not amended for hearing coverage?
Counsel assumes some risk for spending more than the authorized seven 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 seven 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 will not be paid.
Do I have to file the BOC with the IRB prior to billing for BOC services?
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 LAO’s Lawyer Services and Payments Department.
Are disbursements covered on the BOC certificate?
Yes. The BOC certificate covers disbursements for interpretation and medical reports.
On what criteria will the merit of the claim be assessed, for the nine-hour certificate amendment to attend at hearing? Will clients/counsel be required to submit a copy of the BOC?
LAO will 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 to LAO the copy of the BOC they filed with the IRB.
When will the assessment take place? How long will it take for LAO to assess the second stage of the application (for the nine hours to attend at hearing)?
The assessment will take place once LAO receives the BOC form. The assessment for hearing coverage will take up to three business days.
I take it there will no longer be a requirement to submit the hearing date – is that correct?
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.
Refugee Appeal Division (RAD)
What is the RAD?
It is a new entity created by the federal government, in light of the Protecting Canada’s Immigration System Act, to hear appeals of negative Refugee Protection Division (RPD) decisions.
Will LAO cover appeals to the RAD?
Yes. 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.
How many hours will be authorized on the RAD certificate?
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 a RAD certificate application, which is approved, will receive a four-hour certificate for preparing materials in support of a- legal aid application for RAD coverage.
What happens if I am asked to appear for a RAD oral hearing?
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.
Refugee Appeal Division (RAD): merit assessment - private bar
Who will make decisions on whether an appeal to the RAD has merit?
A RAD review committee, consisting of LAO staff 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.