Hearing time billing reminder
Wednesday, June 14, 2017
This is a reminder of LAO’s regulations on billing hearing time on IRB certificates. LAO appreciates the challenges the regulations pose for practitioners, particularly in the current environment of delays and adjournments at the IRB, but is required to apply the regulations.
Hearing attendance time
For IRB matters, counsel can bill hearing attendance time when the member arrives in the hearing room and goes on record to commence the hearing or to discuss pre-hearing matters. Attendance time concludes when the member goes off record at the end of the hearing.
Breaks taken during a hearing may be included in attendance time with the exception of a lunch break; a lunch break during a full day hearing may not be included as hearing attendance time.
|Attendance at hearing
(board member opens hearing, evidence heard)
|Hearing attendance time|
|Hearing breaks||Hearing attendance time|
Time spent at the IRB prior to the start of the hearing for any purpose (e.g. reviewing the file, preparing the client, speaking with an interpreter, interacting with IRB staff) is considered preparation time and is included in the tariff maximum. Counsel can bill time spent prior to the start of the hearing only as preparation time, not hearing attendance time. Time spent waiting for the member or interpreter to arrive after the scheduled start time is not billable as hearing attendance time; this is considered preparation time to be billed within the preparation tariff maximum.
|Wait time prior to hearing||Preparation time|
|Wait time after scheduled hearing start time||Preparation time|
Attendances where the matter does not proceed may not be billed as Hearing Time even where preparation was conducted in anticipation of and understanding that the matter would proceed on the scheduled hearing date. Hearing time may only be billed “if the matter is reached, evidence led and/or submissions made, which does not include submissions in support of or opposing an adjournment” This is a longstanding and foundational principle of LAO policy across all areas of law. If a hearing does not proceed on the scheduled day because an interpreter is not available or the member is ill, for example, no hearing time is billable. No additional hours are allowed for adjournments. They are treated as preparation time and are included in the capped hourly limit or tariff maximum. The 2-hour “subsequent IRB-RPD attendance” authorization should not be requested or billed for an attendance where the matter did not proceed and was postponed/adjourned.
|Attendance at adjournment||Preparation time|
If excessive wait time or adjournments result in counsel billing preparation time above the tariff maximum, a request to Lawyer Services and Payments for a discretionary increase to the tariff maximum can be made. Such requests would be considered according to LAO policy.
Please note that the above approach is consistent with other areas of law, including family and criminal legal aid matters.
Hearing Attendance Time - Billing Validation
LAO now has access to data from the Immigration and Refugee Board on the length of hearings and this may be used to validate lawyer accounts. In situations where the data that LAO has access to does not support what was billed, LAO may request the CD of the audio recording of the hearing or other means of verification from the lawyer.
RPD Certificates for Multiple Family Members
Under LAO policy, counsel is issued a single seven hour Basis of Claim (BOC) preparation certificate for all family members making a refugee claim where the claims will be joined pursuant to RPD Rule 55, even if the family members arrive separately.
LAO acknowledges that seven hours may not be sufficient to prepare multiple Basis of Claim forms from the same family where the claims are distinct. If the basis of the refugee claim is substantially different for different family members, and two or more separate narratives are required, LAO may issue additional certificates of seven hours for each distinct claim. Lawyers who encounter this situation should contact their LAO refugee panel officer and explain in detail why each claim is distinct such that additional certificates are required. If LAO initially issues two certificates for different family members, counsel should not bill for separate narratives unless authorized to do so by their panel officer. If authorization was not obtained LAO may recover the funds billed on the second certificate.
In all instances where claims of family members are joined pursuant to the RPD Rules, only one authorization for RPD hearing preparation and attendance will be issued.