Public proceeding of the Board
Immigration and refugee law advisory committee: Meeting minutes for June 23, 2011
John McCamus, Michael Bossin, Raoul Boulakia, Howard Eisenberg, Alyssa Manning, Sean Rehaag, James McNee
Gerri MacDonald, Marcel Castonguay
Legal Aid Ontario
Rod Strain, Maureen Murphy, Heather Morgan
2. Welcome and Introductions
The Chair opened the meeting.
3. Minutes, November 29, 2010
- The minutes of the November 29, 2010 meeting were approved.
- The Chair noted that the minutes form an important part of the Board’s planning process. When the minutes are completed they will be circulated to the committee for comments and will then be passed directly to the Board, along with a covering report.
4. LAO Business Planning Slide Deck and Group Discussion
- The Chair provided a brief overview of the business planning slide deck that had been circulated to the committee.
- As indicated in the slide deck, the financial situation is showing some improvement, and LAO is hoping to achieve a balanced budget in 2012-2103, with an operating deficit between $3-$5 million for the current fiscal year. Then LAO will have to work on the accumulated deficit, which goes back to the financial downturn of 2008. LAO suffered the equivalent of a $50 million budget cut when Law Foundation income dropped from a high of about $55 million to a low of less than $5 million. The Board has approved a policy to limit future reliance on Law Foundation revenue to fund core programming.
- The principles of LAO’s modernization strategy were reviewed. By reducing its administrative costs, LAO has achieved administrative savings of about $20 million per year. The new call centre process has contributed to a 26 per cent reduction in the cost of taking legal aid applications. Moving legal aid services from area offices into the courthouses saved money but also made services more accessible.
- LAO’s aim is to create a sustainable legal aid organization. In the year ahead, LAO will be continuing on with a number of ongoing initiatives, including the modernization strategy and implementation of the Memorandum of Understanding between LAO, the Ministry of the Attorney General and the Criminal Lawyers’ Association. The second phase of the criminal law block fee pilot has recently been implemented, and it has been going well so far.
- LAO had assumed a modest decline in certificate numbers this year, based on last year’s experience. However, the numbers have been going up and if they continue to do so this will affect the budget forecast. Duty counsel are resolving more cases, and are playing a larger role in determining whether certificates should be issued in cases that are not clear-cut.
- The Board is particularly concerned about LAO’s low financial eligibility standard, and has instructed staff to work on a business case to improve financial eligibility once the financial situation improves. The last time the eligibility standard was adjusted was in the 1990’s, when it was reduced. It is now one of the lowest financial eligibility standards in the western world. LAO has recently moved to a simplified financial eligibility test that is based on income and now shows plainly just how low the eligibility standard is.
- The fall provincial election and the Auditor General’s value-for-money audit of LAO are both on the radar screen, looking ahead.
- LAO is concerned about the potential cost impact of the upcoming refugee law reform. Costs in this area could potentially double, and LAO already spends more than the federal government provides for refugee matters. The federal government believes that the changes will help provinces to save money, but clearly there will be no savings for legal aid. LAO has been talking with legal aid in British Columbia and Alberta about what they are planning to do, and will be continuing to work over the summer, consulting with stakeholders and developing a plan that will be workable and affordable.
- The understanding is that, under the new system, there will be 27 interviews in the morning and 27 in the afternoon. All options for responding to the changes will be on the table, but the options are limited (certificates, duty counsel, coverage or no coverage). Other provincial plans are at the same stage as LAO, looking at potential options. The Association of Legal Aid Plans of Canada holds its annual meeting at the end of August, and this could easily be a topic of discussion at that conference. When more is known about what other jurisdictions will be doing, LAO can share that information.
- Members noted that federal funding increases have been offered to other affected agencies, such as CBSA. A federal increase for legal aid should not be precluded. From the government’s perspective lack of representation may not be seen as a bad thing, but the IRB will actually operate more efficiently if representation is provided.
- It was suggested that a coordinated approach may be helpful. When the legislation was before the Parliamentary Committee, the Refugee Lawyers’ Association (RLA) made a submission that spoke to the likely cost of the new system to legal aid and the strain that will be put on legal aid if no increase in federal funding is provided. However, with the provincial election coming up, it is uncertain whether the provincial government is making a forceful case to the federal government. There is no possibility of any more funding coming from the province before the election.
- Members indicated that it is hard to know how quickly the interviews can actually be conducted. It was suggested that the estimates may not be realistic.
- It was suggested that it may be possible to argue that, by holding the interviews so quickly, the new system may be systemically violating the right to counsel. A member indicated that, based on the kinds of questions that are apparently going to be asked at the interview, it almost seems as if the process is setting people up to be refused: this makes it all the more important that they have counsel.
- There is no real indication of how the backlog of cases under the existing system will be dealt with. There are about 41,000 cases, or two years’ worth, in the system at the present time. Members agreed that priority will be given to cases going into the new system, so that it will look like a success. A backlog-clearance program could potentially be introduced, but in the past there has usually been some kind of amnesty involved and this does not seem likely.
- A member suggested that LAO could look at post-case cost recovery from clients as a potential way of dealing with added costs. Many refugee clients who qualify for legal aid find employment soon afterwards, and could presumably repay the cost of their legal services. The student loan model could potentially work here. The LAO Director, Policy, said that this was an interesting idea that LAO should explore. There is currently an initiative underway to examine LAO’s client contribution system, and this idea will be passed on to the group that is working on that project. It would be good to know if there are any statistics on how quickly people find employment after arriving in Ontario. If backlog cases with open certificates are further delayed after the new system comes in, some of those clients will be more likely to have found employment. Generally, the chances of recovery drop after the close of a case, often because the client has been incarcerated, but this client group may not follow the general rule. A member said that, at Community Legal Services in Ottawa, clients whose files are being closed are asked if they would consider making a contribution; not a lot of money comes in but some clients do contribute.
- It was also suggested by a member that another avenue to explore would be whether applicants have access to offshore assets. Their previous income is not relevant, since it is not a predictor of income after arriving in Canada, but assets are another matter. LAO asks applicants to declare their assets, and counsel are obligated to advise LAO if they become aware that their client has resources that make them ineligible for legal aid. However, LAO will not know if an applicant has assets that are located outside of Canada, if the applicant does not disclose to LAO and the applicant’s counsel does not know about the assets. The member said that this is a problem, if it means that limited legal aid funding is going to people who do not really need it instead of going where it is needed most. LAO needs to explore these issues further.
4.1 Questions and follow ups:
- LAO will explore the idea of post-case cost recovery from clients who obtain employment, and will look at whether there is a way to approach the issue of applicants potentially having access to assets outside of Canada.
- LAO was asked to comment on statistics showing that the number of applications for immigration and refugee law certificates has increased but that the number of certificates issued for full hearing coverage remains fairly steady. The question was whether merit screening plays a role. LAO will provide a response with the minutes.
- There was a question about what is now the proper forum for raising administrative and other issues that are not related to the committee’s primary mandate of providing the Board with advice and input about the business planning process. The Chair said that this tension was evident when discussions were held with the advisory committees three years ago about renewing their mandate and developing new terms of reference, and that almost every committee said that they did not want to lose the ability to raise administrative and day-to-day issues at committee meetings. As a result, it is open to committees to raise any kind of issue, although it is more helpful for the Board if the discussions are more focused on strategic issues. Some committees rely on letters or emails to resolve questions and issues that can be dealt with by staff. The LAO Director, Policy, noted that district offices are going to be focusing more on outreach and regular communication with their local bar, now that taking applications is no longer their main function. The Chair added that if there are any problems, committee members should feel free to reach out without waiting for the next committee meeting, by contacting the LAO Director, Policy, or LAO Policy Counsel assisting the advisory committees, by email. Additional comments or questions can be sent to Policy Counsel by email and will be added to the meeting minutes.
- LAO will keep the committee apprised of what LAO and other provincial legal aid plans are doing to respond to the new refugee system. The LAO Director, Policy, will recommend to the teams in Toronto and Ottawa that are working on LAO’s plan that the members of this committee have the knowledge and experience to provide assistance.
5. Other Business