Meeting of Legal Aid Ontario Immigration and Refugee Law advisory committee on April 23, 2018

Published: April 23, 2018

1. Committee members

John McCamus (Chair), Fayza Abdallaoui, Lina Anani, Michaela Beder, Deyanira Benavides, Raoul Boulakia, Alain Dobi, Debbie Douglas, Hanna Gros, Jennifer Hyndman, Rana Khan, Gladys MacPherson, Deepa Mattoo, Geri Sadoway, Toni Schweitzer, Swathi Sekhar, Maureen Silcoff, Richard Wazana, James Yakimovich (Legal Aid Ontario Board Liaison)

Legal Aid Ontario staff attending: Marcus Pratt, Vicki Moretti, Heather Morgan

2. Welcome and introductions

Chair John McCamus opened the meeting and welcomed those present.

It was noted, for the benefit of new members, that there are nine Board advisory committees which each meet twice yearly. The work of the advisory committees aligns with the business planning cycle at Legal Aid Ontario, which begins in spring each year with the environmental scan process and ends in December when the business plan for the following year is provided to the Ministry of the Attorney General. The advisory committees are asked at the spring meetings to provide advice on environmental factors that should be considered in planning for the next year. In the fall, as ideas for the new business plan are taking shape, Legal Aid Ontario again seeks feedback from the committees. A Board liaison member sits on each committee and the minutes of all advisory committee meetings are received by the Board.

The Chair noted that the minutes of the advisory committees are public, and are posted on the Legal Aid Ontario website along with the names and brief biographies of members. Committee materials and discussions are not considered confidential unless they are clearly identified as such.

3. Minutes, October 11, 2017

The minutes of the October 11, 2017, meeting were approved.

4. Legal Aid Ontario update slide deck

The Chair presented highlights of the Legal Aid Ontario Board Advisory Committees Spring 2018 Meetings: Legal Aid Ontario Updates and Environmental Scan slide deck. The deck was not presented in its entirety.

5. Immigration and refugee services update and discussion

The update on Immigration and Refugee services and initiatives was provided by Legal Aid Ontario’s Vice President, Greater Toronto Area.

By way of background for new committee members, Legal Aid Ontario provides refugee and immigration services through a mixed certificate and staff services model. Approximately 85% of services are provided by members of the private bar on certificates. Legal Aid Ontario has three staff offices, in Toronto, Hamilton and Ottawa proving refugee and immigration services; the largest of these is the Refugee Law Office in Toronto.

A number of community legal clinics and student legal aid clinics also provide services, primarily in the area of immigration, rather than refugee, law. New provincial funding to expand eligibility has enabled Legal Aid Ontario to expand certificate coverage for deferral submissions, motions to stay, and humanitarian and compassionate applications, and has also enabled some clinics to begin providing immigration coverage or to expand their existing coverage. Legal Aid Ontario also supports test case work, through its Test Case Program.

Last year Legal Aid Ontario experienced a sharp increase in demand for services and a funding shortfall. A consultation process conducted in spring 2017 produced a number of suggestions for making services in the refugee and immigration program as cost‑effective as possible. At the fall 2017 meeting, Legal Aid Ontario consulted the advisory committee about some of the proposals that it was considering. The committee indicated that proposals for centralized translation and country research services would require more work to determine whether they would increase cost‑effectiveness. Another proposal, for the development of specialized staff teams, raised concerns related to possible competition with the bar. Rather than develop these ideas further, Legal Aid Ontario has concentrated on three other areas that were identified in the spring 2017 consultations.

The first of these areas of focus has been continued dialogue with the federal government to emphasize the need for sustainable funding for the program. The second area was to enhance financial eligibility screening for certificate applicants with visas. Financial screening is waived for applicants in receipt of social assistance benefits. Only about 5% of applicants are refused based on financial eligibility. There is a right of reconsideration and appeal for applicants who are refused based on financial ineligibility. The third area of focus for legal aid has been improved legal merit assessment. Merit assessments take into account legal merit, likelihood of success, and the vulnerability of the client; they do not involve an assessment of credibility. Non‑resident applicants have a right to reconsideration of coverage refusal based on legal merit. Area committee decisions denying coverage can be appealed to Legal Aid Ontario’s Director of Appeals at Provincial Office.

An issue that is currently having an impact and that Legal Aid Ontario has taken immediate steps to address is the increase in wait times at the legal aid call centre. The staffing complement at the call centre is being increased by 20 per cent. While these new staff members are being trained, staff from elsewhere in the organization who have had prior experience at the call centre have been brought in to fill gaps.

Looking ahead, some environmental factors that Legal Aid Ontario is following include: events that may have an impact on demand for services; hearing backlogs at the Immigration and Refugee Board; the anticipated June release of the report of the independent review of the Immigration and Refugee Board (the Yeates review).

Committee members provided the following input and advice, including on existing service gaps and potential priorities. The views expressed do not necessarily reflect the views of every member.

  • Support for designated representatives was identified as a gap. The Immigration and Refugee Board essentially relies on pro bono services when appointing designated representatives for children and persons with mental health issues. A flat fee provided of $500 is inadequate because these cases require many hours of work. When parents or guardians are designated as representatives, their interests may not always align with the needs and interests of the person concerned. Persons (often but not always lawyers) who are appointed as designated representatives are not necessarily trained to work with children or persons with mental health issues. Persons with mental health issues are also extremely vulnerable, although the Immigration and Refugee Board has a high threshold for appointing a designated representative on the basis of mental illness. Legal Aid Ontario has no control over this part of the process but could help to ensure, where they are involved, that a person appointed as a designated representative is qualified. There may be opportunities for involvement through tutorials, including on the role of the designated representative and how that role intersects with the role of counsel.

  • A priority focus area for legal aid should be the rights of children. Children are particularly vulnerable. Justice for Children and Youth is a clinic that has the necessary expertise and has played a major role in important litigation. With additional support they would be able to become more directly involved in refugee claims for children, as well as in providing training for others providing these services. They can also make the other connections that need to be made for these children, including getting them into school.

  • There is a service gap around mandamus litigation. Coverage from Legal Aid Ontario is currently available but only through its Test Case Program. Outside of the test case realm, it may be necessary to bring mandamus to compel an action, such as processing a claimant’s application or proceeding with their case. Mandamus is an extraordinary remedy that can be appropriate in compelling circumstances, for example involving particularly vulnerable clients whose cases are in limbo, and having a process available to seek approval for coverage of such cases would be helpful.

  • Access to basic information and legal advice would be very helpful, especially in cases involving children, youth, and other vulnerable persons. The family advice authorization model could be a good one.

  • Having a legal aid staff person available at ports of entry to assist claimants in making their legal aid application would improve access. There should be a way for people to make their application to legal aid right away, on arrival, instead of trying to connect with legal aid later on. Several years ago a proposal was developed for legal aid staff to work with the Fort Erie multicultural centre to take applications. Legal Aid Ontario’s Vice President, Greater Toronto Area indicated that there would be a number of considerations to look at, including logistics, coordination, volumes at different entry points and the fact that entry points are open 24 hours a day, seven days a week. LAO is open to considering ways of better assisting new arrivals, including potentially working with agencies.

  • Members suggested considering automatic legal eligibility for coverage for a humanitarian and compassionate application for stateless persons. It was noted that there has been an increase in the number of stateless persons entering Canada at Windsor/Fort Erie.

  • Increasing the number of articling student positions at clinics was suggested. All clinics that do immigration work would benefit from having articling students. Students are a cost effective way to provide direct services to clients. Also, clinics have very good immigration lawyers and allowing them to train law students will help to “grow” the immigration bar.

  • Concerns related to financial eligibility testing were raised by members. It was noted that enhanced financial eligibility screening conducted by Legal Aid Ontario has been capturing applicants who have spent any period of time in the United States, including irregular crossers, at the point of entry. The policy should be capturing persons based on their status in Canada. The additional time taken by Legal Aid Ontario to ascertain eligibility then cuts into the time that counsel has available to meet the 15‑day deadline for submitting the Basis of Claim document. In this regard, it was noted that port‑of‑entry claimants are at greater risk than inland applicants. While the Immigration and Refugee Board’s new “first in, first out” policy makes it more likely that an extension of the deadline would be granted if sought, counsel are reluctant to seek an extension on grounds that legal aid is late.

  • Another concern raised is that the financial eligibility thresholds for clients experiencing domestic violence are not the same across all areas of law. A domestic violence client may qualify for a family law certificate but not an immigration and refugee law certificate. It was noted by LAO’s Director, Policy and Strategic Research that eliminating this discrepancy is identified as an initiative in year two of Legal Aid Ontario’s Domestic Violence Strategy plan. In the meantime, the matter should be brought to the attention of the Director General in the area where the certificate was issued.

  • It was noted that the Immigration and Refugee Board’s backlog problem has become so severe that many legacy claimants no longer qualify for legal aid by the time their hearing takes place, and their certificates are cancelled as a result. However, by the time the cancellation occurs, counsel has already started reviewing evidence in preparation for the hearing.

  • Legal Aid Ontario’s asset thresholds are far too low. If a claimant has even a couple of thousand dollars, this is enough to make them ineligible for a certificate.

  • Members discussed ideas for improving Legal Aid Ontario’s application process. A simple printed form that counsel could fill out on behalf of an applicant, obtain the applicant’s signature and then send to Legal Aid Ontario through the solicitor portal as a PDF document would enable counsel to expedite the application process. The form should be as simple as possible; it should not contain too many questions or take too long for the lawyer to complete. A similar process that enables lawyers to submit applications to legal aid on behalf of clients has been piloted at the Toronto South Detention Centre. A member noted that this would also increase access to legal aid for clients who are in immigration hold in jail.

6. Environmental scan discussion

Members indicated that the political climate in the United States continues to be a major environmental factor and will drive higher numbers of claims. Ontario may also see higher numbers of claimants from different backgrounds; for example, more claims from Central and South America are likely. An increase in claims from Somalia has been observed.

The committee discussed a recent report in the Toronto Star suggesting that asylum‑seekers arriving in Quebec through the Canada‑United States border could be triaged on a fast‑track basis to Ontario if they indicate that Ontario is their preferred destination. Members were not certain what the impact of this might be, since the Immigration and Refugee Board already has the ability to agree to a change of venue on request. Members noted that Quebec lacks the resources to process large numbers of claimants and, if they get tired of waiting, claimants may decide to change their destination to another province. The Toronto Star report suggests that Ontario may be the preferred destination for the majority of these claimants.

7. Action items

  1. Legal Aid Ontario will report back to the committee on the timeline for formal implementation of the Domestic Violence Strategy financial eligibility thresholds for immigration and refugee law matters.

8. Other business

None raised.