Public proceeding of the Board
Immigration and refugee law advisory committee: Meeting minutes for October 21, 2013
John McCamus, Raoul Boulakia, Gerri MacDonald, Sean Rehaag, Deyanira Benavides, Andrea Sesum, Melissa Loizou, Maureen Silcoff, James McNee
Michael Bossin, Debbie Douglas, Claudio Ruiz
Legal Aid Ontario
Aneurin Thomas, Jawad Kassab, Andrew Brouwer, Heather Morgan
2. Welcome and Introductions
The Chair opened the meeting.
3. Minutes, May 28, 2013
- One amendment to the minutes was requested. On page 4 of the minutes, the following should be added to the discussion on paralegals: “Some members raised concerns that paralegals should not act at RAD or RPD hearings”.
- The minutes of the May 28, 2013 meeting were approved as amended.
4. Improving Integration with the Business Planning Process
- The Chair advised the committee that there has been a gradual shift in the timing of LAO’s business planning since the last realignment of the committee meeting process with the business planning cycle. As a result, environmental scanning – which used to occur in the fall - now takes place earlier in the calendar year and the business plan itself is now submitted in the fall.
- There was no objection to the proposal that in the future, starting in spring 2014, the spring committee meetings should be used to focus on environmental scanning in order to bring the committee meeting cycle back into alignment with the business planning process at LAO.
5. LAO Slide Deck: Overview and Discussion
- The Chair introduced the advisory committee slide deck, providing updates on LAO’s major initiatives and environmental factors that are having an impact on service delivery and planning.
- LAO continues to work on financial eligibility. Plans in this area are focusing on the development of some targeted financial eligibility pilot projects.
- The development of the Mental Health Strategy is progressing well. LAO anticipates releasing a consultation paper in November. The strategy will touch on all areas of LAO’s service delivery, including immigration and refugee law, and LAO would like to hear input from the committee on the consultation paper when it is released.
- LAO’s Aboriginal Justice Strategy has been renewed by the LAO Board and is poised to enter a second phase with new goals and priorities.
- In the area of clinic law, LAO has published a strategic directions paper which shares common ground with the paper released by the Association of Community Legal Clinics of Ontario. Areas of focus include strengthening services, achieving administrative savings and making better use of technology.
- Environmental factors that are having an impact on LAO’s services include the decline in the number of criminal charges and the decline in the number of refugee applications.
- LAO’s financial situation was reviewed. A balanced budget seems likely for LAO this year. If there is any surplus it will be allocated to reducing LAO’s accumulated debt.
- LAO received a 1% funding cut from the province this year but the province also committed an additional $10 million per year to LAO, for the next three years, to be used for targeted improvements in the area of family law and clinic law services. 70% of the money will go to family law initiatives, including the establishment of six new Family Law Service Centres, and the rest will be used to enhance poverty law services. Because the new funding has not been added to LAO’s base budget, there is a question of how to make improvements over a three-year period that will not create difficulties when the three years are up.
6. Refugee Law Update and Discussion
- The LAO Executive Lead, Refugee Services Transformation, introduced the Refugee Services Transformation Update that was circulated to the committee. He noted that some of the environmental factors and risks that are important to consider in this area include the decline in the volume of refugee claims and the potential for a loss of federal funding as a result. He also noted that the province has cut its transfer payment to LAO by 1% and that none of the new funding from the province was targeted by the government for providing refugee law services. In terms of new pressures, the new refugee system has introduced the Refugee Appeal Division (RAD), which did not exist before. Cessation/vacation coverage is likely to increase costs and there has been an increase in adversarial hearings at the Immigration and Refugee Board (IRB), meaning that hearings are taking longer and becoming more costly. The government’s recent announcement that it will remove the visa requirement for people visiting from the Czech Republic may also lead to increased pressure on the budget.
- An overview was provided of LAO’s new initiatives in the refugee law area. Three clinics have now entered into service agreements with LAO for provision of refugee services. These pilots are being monitored, and will be evaluated after one year.
- The pilot at the Rexdale clinic involves the use of a supervised licensed paralegal working on staff at the clinic. Part of the evaluation of this pilot will involve looking at whether this service is more cost-effective than service provided by the private bar. A member observed that LAO’s cost-effectiveness analysis will need to account for the cost of supports for the program that are absorbed elsewhere by LAO, and not be confined to the salary of the individual paralegal and the time that the paralegal spends on files.
- There was also discussion of how quality would be evaluated in the Rexdale clinic pilot. The committee was informed that the paralegal will be supervised by a lawyer, and that the quality component of the evaluation will include looking at outcomes and complaints, if any. A member pointed out that it would not be difficult to do a focused study of quality of representation if the number of files handled by the paralegal is not high. The LAO Executive Lead, Refugee Services Transformation, said that ideas for this would be welcome. One suggestion from a member was to review the CDs of the hearings. Other possibilities that were raised were peer review by staff from the Refugee Law Office (RLO), and opinion letter assessment by an external lawyer. A member pointed out that there is no mechanism, now that opinion letters for judicial review no longer exist, for LAO to track outcomes after cases are rejected.
- Some concerns with the clinic pilots were raised by members. One concern was that the contracts might be inadequate in terms of their funding and that clinics might only have agreed to enter into the contracts because they felt vulnerable, with the result that quality could be gutted. The LAO Director, Policy, assured the committee that no clinic had signed anything under pressure from LAO. Some of the agreements were initiated by the clinics.
- Another concern was transparency; a member asked whether potential clients are being advised that if they go to the Rexdale clinic they will be assisted by a paralegal and not by a lawyer. This information is posted on the LAO website, but LAO will have to get back to the committee on what potential clients are being told on the phone. A member said that it is important to inform clients on the phone because after they arrive at the clinic it is too late. LAO needs to take active steps to ensure that vulnerable people consent to being assisted by a paralegal when they could opt to be assisted by a lawyer.
- Providing services through paralegals was discussed. One member suggested that, although proper assessment and supervision are needed, paralegals could be used to increase access and assist LAO in dealing with its financial pressures. Others agreed that supervised paralegals can be very effective on detention reviews and in providing support work. However, some members were of the opinion that paralegals should never appear at the Refugee Protection Division (RPD), where the stakes are high and issues of natural justice are raised. Another member said that the private bar could use paralegals much more effectively than they do now but the current fee structure makes it unaffordable for them to do so. With a different fee structure this could change; this is something that LAO should think about.
- The committee was informed that LAO’s website information on refugee law services has been revamped and is being updated each time there is a change. LAO is sending regular email updates to agencies. LAO is also updating its refugee law information for clients and agencies, and hopes to have this on the website in the next few weeks. LAO is meeting regularly with the IRB and other parties involved in refugee protection. Regular communication is important, and LAO is willing to meet with the Refugee Lawyers Association on a monthly basis.
- Certificates from LAO are now available for cessation/vacation applications. LAO is working on developing a merit assessment process, because there are some cases that lack merit. An example would be where someone obtains status in Canada but then returns to the country of origin and stays there for years. LAO would be willing to share its policies and merit assessment criteria with members of the committee and intends to post them on the LAO website when they are finalized.
- Refugee staff services in Hamilton (SouthWest Region) were discussed. LAO’s data analysis showed that there are service gaps in the Southwest. A staff lawyer position has been posted but has not yet been filled. LAO predicts that this lawyer will handle 60-80 claims per year. A member suggested that it could be an idea to establish this position as a satellite of the RLO, due to the expertise that exists within the RLO.
- The committee was updated on LAO’s evaluation of Judicial Review (JR) Interim Measures. LAO is in the process of evaluating the interim measure, taken in fall 2012, of eliminating JR opinion letters. An evaluation survey will be going out in the near future. LAO wants to move quickly to resolve this issue, and is considering potential alternatives to opinion letters, including the possibility of establishing an appellate panel to handle JRs and Refugee Appeal Division (RAD) appeals. Alternative fee arrangements (contracts for service) could be another approach, and LAO would be interested in talking to the refugee bar about this option. Alternative fee arrangements are something that LAO has been discussing with some members of the criminal and family bar. They are not meant to cut costs but rather to cut red tape by reducing the number of transactions. Members were pleased to hear that LAO wants to move quickly on the evaluation. It was pointed out that this is an urgent issue. An appellate panel could be efficient, because it would be made up of high quality lawyers, but the fact that lawyers would be taking on cases at the appeal level that they were not involved with at the lower level could produce some inefficiency as well. A member noted that any lawyer who had not handled the initial hearing should be provided with a hearing transcript.
- LAO Policy Counsel introduced the committee to LAO’s draft panel standards. Two sets of standards (general standards and appellate standards) have been drafted. It was noted that both sets of standards provide for a membership duration of three years, and that membership can be renewed by application of the lawyer if the lawyer establishes that the standards continue to be met. LAO does not want to make the application process burdensome; it would likely be a web-based process.
- A question was raised about who would be assessing compliance with the panel standards. LAO should think about whether it wants to continue on with random audits, which are frustrating for lawyers who have good track records, or look to some other system. The LAO Director, Policy, said that the new system would be “front-loaded”, so that the assessment and review process would take place before the lawyer gets on the panel. Members indicated that they agreed with this approach. A member suggested that a peer review component would make the most sense for LAO in terms of buy-in and legitimacy. Although this has not yet been determined, LAO has heard the idea before of working with a panel of private bar lawyers. It was noted that the refugee bar has been proactive on issues of quality, and the LAO Director, Policy, said that anyone who would like to volunteer for a peer review process should contact LAO.
- Members were also asked to contact LAO Policy Counsel with their input on the draft panel standards; a new draft will be circulated based on the input received. The point was made by a member that something needs to be done quickly to address quality issues. It cannot be left up to the Law Society to deal with quality and complaints. There are lawyers out there who have had problematic dealings with LAO (the Roma cases come to mind) and yet these lawyers are still receiving certificates. Members agreed that LAO should move forward on panel standards and quality as soon as possible.
- Clarification was requested on whether a lawyer may request discretion above the two hour allotment that LAO has introduced for written submissions. A member noted that discretion should not be mechanistic.
7. Action Items
- LAO’s cost-effectiveness analysis of the clinic refugee pilots needs to account for the cost of supports for the program that are absorbed elsewhere by LAO, and not be confined to salary cost and time spent by individuals.
- LAO will look into and advise the committee on what information is being provided over the telephone to potential clients when they are offered the choice of being assisted by a paralegal at the Rexdale clinic: are potential clients aware that they can choose to be assisted by a lawyer? LAO needs to take active steps to ensure consent.
- LAO is willing to share its draft policies and merit assessment criteria in relation to cessation/vacation applications with members of the committee. When the criteria and policies are finalized LAO will post them on its website.
- LAO’s current fee schedule makes it unaffordable for the private bar to utilize paralegals; this is something that LAO should think about.
- Members were asked to send input on the draft panel standards to LAO Policy Counsel. LAO will re-circulate revised draft panel standards based on feedback received from the committee.
- LAO needs to move forward on panel standards and quality as soon as possible. There are lawyers who have had problematic dealings with LAO (as in the Roma cases) and these lawyers are still receiving certificates.
- LAO will follow up on and clarify for the committee what LAO’s policy is on requesting discretion over and above the two-hour allotment for written submissions that was recently announced.
8. Other Business
- The Chair updated the committee on the Board’s response to a member’s request for a meeting between the LAO Board and the Refugee Lawyers’ Association Access to Justice Committee to discuss that committee’s concerns about recent changes to refugee law services. At its recent meeting the Board reaffirmed that is not inclined to meet with individual stakeholder groups but indicated that the Chair and advisory committee Board liaison, where appropriate, can agree to meet with committee members to discuss problems. The Chair invited committee members to express any concerns.
- Committee members spoke to the concerns that they had about LAO’s policy direction and overall outlook. They said that they are worried about the lack of clarity around how LAO’s pyramid model will translate to refugee law services. The biggest experience of change to date has been with JR opinion letters and that has been disastrous; it would not be possible to over-emphasize the negative impact of that change. A member added that there is also concern that service providers – the bar, the RLO and clinics - who all care about refugees and who have a history of working harmoniously together will end up being pitted against each other in an atmosphere of insecurity. This is hard to take because these service providers essentially are legal aid, and they want to work together to help refugees. Trust was also identified as an issue. Finally, members expressed a feeling of disappointment that, at a time when refugees were most in need of a strong advocate because the whole system is moving away from refugee rights, LAO did not fulfill that function.
- The LAO Director, Policy, noted that LAO has heard similar concerns from the family and criminal bars. The last few years have been difficult for everyone, but the outlook is improving and LAO is now starting to put together the elements of a broader access to justice strategy that will address the questions that people have been asking about where LAO is going. It would be fair criticism to say that LAO got some things wrong in the refugee services paper that was released in November 2012. The LAO Executive Lead, Refugee Services Transformation, added that LAO will be putting together a new, clearer vision for refugee law services, based on what is known today. LAO wants to work with the RLA, meeting on a monthly basis if that is helpful. Members agreed that this new approach sounded positive, adding that they appreciate the work that legal aid is doing on panel standards.
- The Chair reiterated that he and the Board liaison to the committee are also willing to speak with the committee about concerns, adding that LAO is grateful to the committee for bringing the JR opinion letter problem to LAO’s attention. LAO needs the committee’s feedback and appreciates its assistance. The Chair noted that many good ideas had come forward at the meeting.